Do pronouncements of the constitutional court bind erga omnes? The common law doctrine of stare decisis versus the civil law doctrine of non-binding case law within a Maltese law context

Abstract

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.