Exclusion as a problem of jurisdiction

Abstract

The three organs of the Maltese state, exercise one of the three functions which we know as state functions. Through such exercise, the state shows its sovereignty. The function of parliament is that of legislation, that of the executive administration and that of the judiciary, jurisdiction. Jusirdiction is a "protestas publica" exercised by the Superior and Inferior Courts (Sections 96 and 100 of the Constitution of Malta), by the judges and the magistrates. The power contains the faculty of knowing or "ius dicere" and the faculty of coercion "potestas iubendi et coercendi". Jurisdiction is a power which is exclusively exercised by the state. Through its exercise the state shows its sovereignty. It is an autonomous power in that the Constitution of Malta trusts only the organs of the judiciary with its exercise, organs which are truly and wholy distinct from the other organs of the state. It is only in exceptional circumstances that this power is hy law, and only by law, delegated to an other organ. The jurisdiction of the courts of Malta form a major part of the sovereignty of the Islands of Malta. Jurisdiction as a concept has been the subject of various studies, which have dealt with the exercise and scope of jurisdiction. Various theories have of course been developed, which can generally be classified into two main groups of theories on the subject of jurisdiction, that is the subjective theory and the objective theory.