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Title: Constitutional supremacy and parliamentary sovereignty
Authors: Herrera, Martina
Keywords: Constitutional courts -- Malta
Legal certainty -- Malta
Constitutional law -- Malta
Issue Date: 2016
Abstract: Malta’s system of government is based on the supremacy of the Constitution. The Constitution creates organs of State assigning to each their various powers. One may state that Parliament is sovereign in its affairs to legislate yet it is subservient to a more supreme Constitution. Article 6 states “… if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” This research examines how this provision is truly practiced today and whether the way it is being interpreted by the Constitutional Court is correct. Furthermore, this thesis highlights the manifest legal uncertainty created throughout our constitutional case law because of conflicting judgements. One judgement declares a law to be invalid, a subsequent judgement declares that same law to be valid and again, another judgement declares that said law to be invalid. This is the situation today. This thesis features conflicting constitutional case law in a number of different areas, namely: transgender cases, arbitration cases, legal assistance cases and property cases amongst others. Furthermore, this thesis also examines whether a judgement declaring a law to be anti-constitutional or contrary to International Conventions should be regarded as null erga omnes or inter partes. Following this analysis, this study will highlight recommendations made by notable personalities, some of which have been personally interviewed by the author on behalf of this study, as well as the author’s own comments and proposals. The author’s suggestion is the creation of a ‘Court of Cassation on call,’ which is intended to streamline court judgements by giving a definite interpretation of a particular law, which would be binding, on all courts. The introduction of such a legal mechanism would greatly appease the frustration litigants are faced with when uncertainty prevails.
Description: LL.D.
Appears in Collections:Dissertations - FacLaw - 2016
Dissertations - FacLawPub - 2016

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