It is not rare that we come across criminal and civil cases where conflicting court judgments are delivered. Not long ago, for example, the Constitutional Court, within a period of less than a year, declared mandatory arbitration to be both legal and illegal at the same time. In the same period, the Court of Appeal (in its superior jurisdiction) decided that it was possible for the Planning Appeals Board to decide two appeals in one judgment, while the same Court of Appeal sitting in its inferior jurisdiction decided the obverse.
In any state, laws are laid down to regulate and guide the actions of its citizens. It should be obvious, then, to any logical mind that certainty and uniformity in the law are pivotal requirements for carrying out true and proper justice based on the law of the land.
Unfortunately, we have still not reached such a desirable situation. Indeed, our courts have had their unacceptable share of conflicting, confusing and mind-boggling judgments that hardly do justice to the ordinary citizen. So could the introduction of the so-called doctrine of binding precedent help in doing away with such an unwarranted state of our justice system?
The concept of binding precedent is often explained using the Latin term "stare decisis", meaning "to stand by things decided". It plays a crucial role in maintaining consistency and stability in the interpretation and application of the law. As a cornerstone principle, it ensures that cases with similar facts are treated alike by relying on past decisions made by higher courts.
In this approach, decisions made by higher courts are considered binding on future cases brought before equal or lower courts, provided the cases involve similar facts and issues. A key element of the doctrine is consistency. By relying on decisions made in previous cases, the doctrine of precedent ensures consistency in the application of the law, leading to fairness and predictability for individuals and businesses involved in legal disputes.
The other important element is efficiency. Judicial precedent simplifies the decision-making process for judges, as they can refer to established principles and rules from previous cases when making a judgement.
Some leading Maltese lawyers, among them Franco Debono, have regularly been calling for the creation of a Supreme Court of Cassation in Malta, similar to the one operating in neighbouring Italy. In practice, the decisions of the Supreme Court of Cassation in Italy usually provide a very robust reference point in jurisprudence. The two essential aims of the Supreme Court of Cassation are to ensure that lower courts correctly follow legal procedures and to harmonise the interpretation of laws throughout the judicial system. They contend that such an introduction would ensure the desired consistency and efficiency in the judgments delivered by our courts.
Yet, would it risk aggravating our endemic unacceptable court delays in so far as it would afford another channel to appeal from judgments delivered by the court of appeal and the constitutional court that, to date, are final and binding on the parties involved, save for the possibility of resorting to the European Court of Human Rights in cases of breaches of human rights?
The Maltese legal system does not recognise judicial precedent. It only recognises authoritative weight but does not impose binding force on the judgments of the Court of Appeal in so far as subsequent decisions are concerned. There is, therefore, no doctrine of "stare decisis" in Malta. Significantly, this could be seen as the main reason why the constitutional authors decided to introduce a constitutional court into the Maltese system. There is, however, no provision in the Constitution providing for the statutory binding effect of the decisions of the Constitutional Court beyond the merits of the application considered and decided by it. This means that in theory, the doctrine of stare decisis is not applicable to these judgements, just as it is not applicable to the judgments of the "ordinary" courts, including those of the Court of Appeal.
Therefore, while it is clear that the judgments of the Constitutional Court would be binding on the other courts in so far as concerns the case specifically referred to that Court for decision, it is not at all clear that the judgment of the Constitutional Court would constitute a binding precedent on other courts if a similar issue were to arise before them.
On the other hand, one can consider that certain Constitutional Court judgments that have an effect erga omnes, like decisions regarding the validity or constitutionality of laws, would be considered to have a binding effect on their own subsequent decisions and on those of other courts, including the Court of Appeal.
It is perhaps there that lies the best opportunity to smoothly introduce the doctrine in question, either by an amendment to our law of organisation and civil procedure or to the Constitution, if a two-thirds majority of the House is achievable.
If courts have to follow cases that have been set before, then it can be pretty easy to say how a case would turn out even before court proceedings are filed. This means that legal counsel can give clear, sound advice and suggest whether or not it would be useful or futile for a client to pursue a case. This can save the public money and time in court, and they could also avoid embarrassing or intimidating court cases.
Dr Mark Said is a lawyer