Do court judgements declaring laws unconstitutional have effect ‘erga omnes’?

Abstract

The supremacy of Malta's Constitution, which outlines the powers of various state organs, forms the foundation of its governmental structure. While Parliament holds legislative sovereignty, it remains subordinate to the overarching authority of the Constitution. Article 6 of the Constitution explicitly mandates that in case of any inconsistency between the Constitution and any other law, the former prevails, rendering the latter void. This research endeavours to scrutinise the practical application of this constitutional provision in contemporary Maltese jurisprudence, with a specific focus on its interpretation by the Constitutional Court. Furthermore, this study delves into the question of whether judgements declaring laws to be anti-constitutional should have an effect erga omnes or inter partes. The research will shed light on divergent perspectives and offer insights into the implications of each approach through a comprehensive analysis. Additionally, this study aims to illuminate the pervasive legal uncertainty stemming from conflicting judicial pronouncements observed in constitutional case law and the opinions of various jurists over the years. Instances abound where one judgement invalidates a law, only for subsequent rulings to contradict or reaffirm its validity. This prevailing situation underscores the need for clarity and coherence within Malta's constitutional jurisprudence, particularly in contentious areas such as arbitration, property and public interest litigation disputes. Building upon this analysis, this dissertation will present recommendations provided after the extensive research delved into in the previous chapters, as well as the author's own commentary and proposals. The author makes a notable suggestion: a brief introduction to the doctrine of precedent in constitutional matters. A legal mechanism like this could potentially alleviate the frustration of litigants navigating through periods of uncertainty and inconsistency in judicial rulings.