Legal certainty and the Constitution : is Malta ready for the doctrine of judicial precedent?

Abstract

One of the fundamental aspects of judicial methodology is the execution of decision-making. In Common law systems, this is carried out through the doctrine of judicial precedent which constricts adjudicators to decide according to what was previously decided in earlier cases bearing similar or identical facts. This judicial feature is not present within the Maltese legal system and this thesis will embark on an examination of the effects of the absence of precedent on Maltese Constitutional law as well as study the need of its possible introduction. An explanation of the mechanics of the doctrine of precedent and its inter-court application in the United Kingdom will be delivered and contrasted with the doctrine of jurisprudence constante found in civil law countries. Essentially, this thesis will focus on the effects of judgments of the Maltese Constitutional Court and in doing so will refers to the foundations of Malta’s hierarchical court structure. On this point the author aims to classify this effect by scrutinizing different pronouncements of the Constitutional Court in relation to the unconstitutionality of laws and also looks to dissect any relevant legislation. The author also aims to highlight the lack of stare decisis in relation to the appreciation of judgments delivered by the ECtHR. In this regard, the dynamics of conflicting judgments will be analysed to test the Maltese Courts’ compatibility with the principles of legal certainty and the requirement of foreseeability which are both entrenched as fundamental limbs of the European Convention on Human Rights. Finally, this thesis also aims to tackle the ongoing academic debate regarding the annulment and alteration of laws deemed to be void. In doing so, the author intends to draw analogies between the supremacy of the constitution, the jurisdiction of the constitutional court and parliaments’ legislative power.