The composition of the Maltese constitutional court

Abstract

The Maltese Constitutional Court is a very special court because unlike the other ordinary courts it was specifically established to ensure the supremacy of the Constitution of Malta, to safeguard the fundamental human rights of the individual, and to protect Maltese citizens who have become victims of the Government. This would not be possible if the Constitutional Court is not accordingly composed. This Research Project discusses the consequences of not having a functioning Constitutional Court by looking at various factual events that have happened in the past. It also examines the various safeguards that have been created by our Maltese Constitutional legislator in order to ensure the permanent existence of the Constitutional Court. The Research Project is divided into three sections. Section 1 examines what is meant by the term ‘composition’. It becomes clear, that the automatic mechanism introduced in Article 95(5) of the Constitution and the Theory of Necessity are two remedies which could be used in order to safeguard the composition of the Constitutional Court. Section 2 then discusses and analyses the important functions of the Commission for the Administration of Justice in relation to the composition of the Constitutional Court. It becomes evident that the Commission plays a very important role in ensuring that judges are not unjustly dismissed from sitting in the Constitutional Court. Section 3 analyses whether the doctrine of necessity is unconstitutional. It becomes clear, that in the eyes of the ECtHR the doctrine breaches the right to a fair trial, whilst in the eyes of the Maltese Constitutional Court it could still be used as a theory, since ECtHR case law is not entirely binding in Malta. Finally, the Conclusion comes up with various recommendations that would further safeguard the composition of the Constitutional Court.