Do Pronouncements of the Constitutional Court Bind Erga Omnes? The Common Law Doctrine of Stare Decisis versus the Civil Law Doctrine of Nonbinding Case Law within a Maltese Law Context

Chapter 4
Do Pronouncements of the Constitutional Court Bind Erga Omnes? The Common Law Doctrine of Stare Decisis versus the Civil Law Doctrine of Nonbinding Case Law within a Maltese Law Context

Kevin Aquilina

The Maltese legal system is a mixed legal system comprising the legal families of civil law and common law, as well as European Union law since European Union accession in 2004. These three legal traditions are superimposed onto autochthonous native law. In this chapter, I pose the following question: Do the pronouncements of the Constitutional Court—the highest court in the land—bind erga omnes, or do they exclude third parties? This is a fundamental question for the Maltese legal system because of the discord that accompanies its answer. Such disagreement emerges not only in case law but also in doctrine. I will first discuss the binding nature of judgments by referring to case law, doctrine, and the jurisprudential debate that has ensued. This chapter considers these antagonistic viewpoints, discusses the contribution of the Select Committee of the House of Representatives on the Recodification and Consolidation of Laws and the Commission for the Holistic Reform of the Justice Sector, and concludes by presenting its own solution to this vexata quaestio.

A Divided Case Law

Case law is not unequivocal concerning the supremacy of the Constitution. Notwithstanding the fact that the defendant is always the Maltese government in those judicial proceedings that question the validity of a law, the Maltese courts are not unanimous in holding that a lawsuit against the government should always apply erga omnes (that is, against the government with regard to everyone). On the contrary, the Constitutional Court has consistently decided that a lawsuit requesting the declaration of an ordinary law is in breach of the Maltese constitution and is, therefore, void. A lawsuit instituted against the government binds only the person instituting that lawsuit (the applicant) and the government (the respondent). In other words, such a judgment does not bind third parties, even if the same legal principle applies both in the case of the applicant and in the case of the third party. The salient points arising from the convoluted case law of the Maltese courts on the supremacy of the constitution are discussed in this chapter.

In Vincent Cilia v. Prime Minister et,¹ the Civil Court held that the Constitutional Court had already declared on November 30, 2001, that paragraph (c) of subarticle 4 of the Sixth Schedule of the Value Added Tax Act of 1994 was in breach of both the Maltese constitution and the European Convention of Human Rights and Fundamental Freedoms. The Civil Court further maintained that it was bound by the declaration of the Constitutional Court that the provisions of the 1994 enactment were a breach of human rights. The Civil Court, First Hall, then declared these same provisions as a breach of the Maltese constitution and of the European Convention of Human Rights and Fundamental Freedoms. On appeal, the Constitutional Court,² in the case of Anthony Frendo v. Attorney General on November 30, 2001, agreed that it had already declared paragraph (c) of subarticle 4 of the Sixth Schedule of the Value Added Tax Act of 1994 to be in breach of article 39(2) of the constitution and article 6(1) of the European Convention of Human Rights. The court held that this decision bound only the parties to that suit and did not bind erga omnes. However, the court noted that its decision did not negate the ability of the Constitutional Court or the Civil Court, First Hall, sitting in its constitutional competence, to declare a particular provision of the law in conflict with the rights of a citizen in one case and then to make the same declaration regarding another person in a similar case.

Note that the Constitutional Court, in recognizing that a provision of a law runs counter to the constitution when challenged by a particular person, fails to extrapolate that finding to others who end up in the same fate as that person. Because Malta does not subscribe to the doctrine of precedent, the Constitutional Court could declare a provision of ordinary law to be in breach of the constitution in one lawsuit and then come to the opposite conclusion regarding the same provision in another lawsuit. This observation is neither a conjecture nor a hypothetical scenario, for there have indeed been instances in which the Constitutional Court has successfully managed to contradict itself, sometimes within in a very short span of time. A case in point relates to the institute of arbitration.3

In John Buhagiar et v. Registrar of Courts et,⁴ the Civil Court, First Hall, had to decide, among other issues, whether to declare that a judgment delivered by the Rent Regulation Board on January 19, 1993, in Josephine Mangion pro et noe v. Mary Louise Camilleri et did or did not bind the parties to the suit before the Civil Court. The court noted that after it had examined its records of the proceedings, the file of the Rent Regulation Board, and the warrant of ejectment from immovable property that was referred to in the writ of summons, it came to the conclusion that the plaintiffs to the case—John Buhagiar and his spouse, Maryanne Buhagiar—were not parties to the proceedings before the Rent Regulation Board in the case Josephine Mangion pro et noe v. Mary Louise Camilleri et. John and Maryanne Buhagiar were not cited as parties in the proceedings before the Rent Regulation Board and were not part of the acts of the proceedings of the warrant of ejectment. The court thus concluded that the proceedings before the Rent Regulation Board did not bind John and Maryanne Buhagiar, and the court accepted the plaintiffs’ request on the basis of article 237 of the Code of Organization and Civil Procedure. The provision reads as follows: “A judgment shall not operate to the prejudice of any person who neither personally nor through the person under whom he claims nor through his lawful agent was party to the cause determined by such judgment.” This provision is based on the Roman Law maxim of res inter alios acta vel judicata aliis nec nocere nec prodesse potest (translated as “things done between strangers ought not to injure those who are not parties thereto”). The court also held that the warrant of ejectment cannot be executed against a third party. This principle was enunciated by the Court of Appeal, sitting in its commercial competence in Gulab Chatlani v. George Grixti (Malta Courts 1991: 605), in which the court decided that a warrant of ejectment issued against a tenant could not be enforced against a subtenant who was not indicated by name in the warrant and who was consequently a third party to those proceedings. Note that the Civil Court, First Hall, applied article 237 of the Code of Organization and Civil Procedure within a civil—as opposed to a constitutional—setting. In this sense, the court’s judgment was correct, and the application of article 237 sound.

In Mario Galea Testaferrata et v. Prime Minister et, the Constitutional Court heard an appeal of a judgment delivered by the Civil Court, First Hall, sitting in its constitutional competence. The Constitutional Court pointed out in its partial judgment on January 10, 2005, that the final judgment in this case would, in accordance with article 237 of the Code of Organization and Civil Procedure, bind only the applicants (Mario Testaferrata et), on one side, and the respondents (Prime Minister et), on the other. In my view, the Constitutional Court wrongly applied the law of civil procedure within a constitutional procedure context. Indeed, what might be proper and correct within the context of a civil procedure might not be just and fair within the context of a constitutional procedure.

In Maria Azzopardi et v. Saver Sciortino et,5 the court referred to the Mario Testaferrata judgment of the Civil Court, First Hall, on October 3, 2000. In the latter case, the court had declared articles 12(4) and (5) of the Housing (Decontrol) Ordinance, chapter 158 of the Laws of Malta, to be in breach of article 37 of the constitution. Nevertheless, the court did examine whether articles 12(4) and (6) of chapter 158 applied to plaintiff Maria Azzopardi. Although the Civil Court, First Hall, was bold enough declare to the nullity of a law by the same court, though in a previous judgment, it did not go far enough to apply that judgment to the case at hand. Instead it decided to consider the legal issue of the case at hand afresh, even though the legal issue had already been determined in the previous case.

In Mary Anne Busuttil v. Medical Doctor John Cassar et,⁶ the court referred to article 237 of the Code of Organization and Civil Procedure and commented that although it was correct that the provision unreservedly stated that a judgment may not prejudice a third party, nothing in that provision stated that a judgment may benefit or assist a third party in his or her claim to a right. This observation applied to any case in which a court must decide whether a law is valid or invalid or—as in the current case before the court—whether a provision of a law is in line with the constitution. The court further noted that the applicants were not challenging the provisions of articles 12(4) and (5) of chapter 158 but that their application gave rise to a breach of article 37 of the constitution dealing with protection from deprivation of property without compensation and to a breach of article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms dealing with the right to property. Note that the Civil Court, First Hall, attempted to circumvent the provisions of article 237 of the Code of Organization and Civil Procedure by arguing that article 237 did not expressly or impliedly prohibit a third party from benefiting from a previous judicial interpretation. In this case, the declaration of nullity was of assistance to a third party and could be used to his or her benefit.

In Paola sive Pawlina Vassallo v. Marija Dalli,⁷ the court was requested to decide a plea that once articles 12(4) and (5) of chapter 158 were declared null and void in the Mario Galea Testaferrata et v. Prime Minister et judgment insofar as they ran counter to the constitution of Malta, these provisions of chapter 158 were not operative at law and could no longer be applied. The judgment, therefore, would apply erga omnes, notwithstanding that the provisions still formed part of the Maltese statute book. However, the court noted the defendants’ submission that the Mario Galea Testaferrata et judgment was res inter alios acta because it applied to the parties to those proceedings but not to the parties to the present proceedings; therefore, in accordance with article 237 of the Code of Organization and Civil Procedure, the judgment did not bind third parties. In fact, the court noted that the plaintiffs were not requesting the declaration of articles 12(4) and (5) of chapter 158 to be in violation of the constitution and therefore null and void at law, pursuant to the previous declaration by the Constitutional Court in the Mario Galea Testaferrata et case. Instead, the plaintiffs were requesting the court to apply the Mario Galea Testaferrata et case to the current proceedings insofar as the latter judgment had already found articles 12(4) and (5) of chapter 158 to run counter to the constitution and that this judgment was res judicata. The court noted that, notwithstanding the Mario Galea Testaferrata et case, articles 12(4) and (5) of chapter 158 still remained operative in the statute book and that the Maltese parliament had not taken any action to have the articles amended or revoked.

The court then examined article 6 of the constitution⁸ and consequently stated that it had to inquire whether the res judicata judgment bound erga omnes. The court referred to the Constitutional Court’s judgment of Vincent Cilia in which the latter court had answered this question by stating that its own judgments bound the parties thereto but not erga omnes. The Civil Court, First Hall, reexamined the whole issue and did not rest on the previous declaration of unconstitutionality. The court thus concluded that in light of the case law of the Constitutional Court, it was bound to reexamine the merits once the judgments of the Constitutional Court bound only the parties thereto. Conversely, the court argued that once article 6 is applied and a law or provision thereof is declared unconstitutional, that provision should not be enforced. The court thus concluded that once the provision under examination was declared null and void and the judgment became res judicata, the court could not then apply the provision that had already been declared unconstitutional. That is, since article 6 provided that the constitution is supreme law, the unconstitutional provision was therefore null and void even though the Maltese parliament had not repealed or amended it. When a law is declared null and void, it is no longer enforceable, and its illegitimate status is erga omnes according to article 6 of the constitution. There should be no situation in which one law applies for some persons but not for others; one law should apply to everyone. Note that the Civil Court, First Hall, applied article 237 of the Code of Organization and Civil Procedure and took the same line of thought as the Constitutional Court did in the Mario Galea Testaferrata partial judgment of January 10, 2005. However, the court distinguished between an application for nullity of a law—which was not the case in the current proceedings—and an application of a judgment declaring a law null, as in the current case. However, it followed the Vincent Cilia judgment of the Constitutional Court to the letter, only adding that once a provision had already been declared null by the Constitutional Court, the court was not bound at law to apply the provision because the law in question would not be applied uniformly to one and all. This interesting judgment tries to reconcile article 237 of the Code of Organization and Civil Procedure with article 6 of the constitution.

In Mario Galea Testaferrata et v. Prime Minister et,9 the court referred to article 6 of the constitution and held that articles 12(4) and (5) of chapter 158 were in breach of article 37 of the constitution and were thus null and void. The appeal was declared abandoned by the Constitutional Court on October 16, 2006, and, therefore, the judgment of the Civil Court, First Hall, became res judicata.

In Josephine Bugeja v. Attorney General et,¹⁰ the court held that the Mario Galea Testaferrata judgment on October 3, 2000, bound only the parties thereto and did not bind erga omnes. The Bugeja judgment was, however, revoked by the Constitutional Court in its judgment on December 7, 2009.

In Ruth Debono Sultana et v. Department for Social Welfare Standards et,¹¹ the court held that article 114(2) of the Civil Code was discriminatory and in breach of article 14 of the European Convention of Human Rights. The court went on to order that in each adoption procedure, article 114(2) should be read in a way that was not discriminatory. Austin Bencini (2011: 393) holds that this case came “closest to a declaration of invalidity erga omnes.… Uniquely the court decided to amend the law in a virtual manner, by filling in the gap it created itself through its declaration of inconsistency, whenever such an inconsistency faces any application made by the applicants.” The Constitutional Court, in its judgment on April 3, 2009, confirmed this judgment in toto