The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on October 31, 2014, in the case ‘Emanuel Portelli in his own name and on behalf of his brothers, Carmel Portelli, Paul Portelli and Josephine Cauchi, Francis Portelli, Benny Muscat, Domenic Muscat and Joseph Muscat v Estelle Azzopardi’, held, among other things, that the Constitutional Court decision in the Mario Galea Testaferrata case dated October 3, 2000, was not applicable erga omnes and, therefore, not binding upon the parties in this case.

An issue arose as to whether a res judicata decision of the Constitutional Court declaring the provisions of article 12 (4) and (6) of Chapter 158 to be inconsistent with the constitution and with the European Convention of Human Rights, to be effective between the parties only or erga omnes.

In this case, Emanuel Portelli and others, as emphyteutas (lease holders), requested the court to convert their title of a 99-year emphyteutical concession after it expired to a perpetual ċens under the provisions of article 12(4) and (6) of Chapter 158.

Estelle Azzopardi, in reply, pleaded that these provisions violated the constitution and European Convention of Human Rights.

The Court of First Instance, on January 27, 2010, accepted Azzopardi’s plea, on grounds that there was a decision of the Constitutional Court which had already declared these provisions of Chapter 158 to be in violation of the constitution and the European Convention and that such decision applied erga omnes.

In its final decision dated November 17, 2010, the court rejected the request of the emphyteutas saying that it could not rely on provisions of law which were declared to be invalid by the Constitutional Court.

It resulted that on October 3, 2000, the First Hall (Constitutional) in ‘Mario Galea Testaferrata et v the Prime Minister et’, declared that article 12(4) and (6) of Chapter 158 was null and without effect, and in violation of the constitution (Article 37). This decision was res judicata.

In addition, in ‘Paola sive Pauline Vassallo v Mario Dalli’ dated October 30, 2008, the First Hall of the Civil Court also found article 12(4) and 12 (6) of Chapter 158 to be null and without effect.

The court, in the Vassallo case, concluded that, once these provisions were declared null and in violation of the constitution, the constitution prevailed and, insofar as these provisions were inconsistent, they should be considered null and without effect, irrespective of whether they were actually abrogated by the legislator. This, it said, was in line with the principle of the supremacy of the constitution.

The reasoning was that a provision of law could not be deemed applicable to some but not to others. The law should be the same for all in accordance with the rule of law.

In its preliminary decision, the First Hall of the Civil Court held that the decision of the Constitutional Court on October 3, 2000 in ‘Mario Galea Testaferrata v the Prime Minister’ which declared null and without effect article 12(4) and (6) of Chapter 158, applied not only inter partes but erga omnes. In its final decision, the court held that, once the decision of the court in the case ‘Mario Galea Testaferrata v the Prime Minister’ applied erga omnes, Emanuel Portelli and others could not invoke these provisions. In this respect the court rejected their requests.

Aggrieved by the two decisions of the First Hall of the Civil Court, Portelli and others entered an appeal. It was submitted that court decisions were only binding between the parties, and not erga omnes. It was stated that the First Hall of the Civil Court failed to consider other decisions of the court according to which, decisions of the court were only effective inter partes.

Article 237 of Chapter 12 states:

“A judgment shall not operate to the prejudice of any person who neither personally nor through the person under whom he claims nor through his lawful agent was party to the cause determined by such judgment.”

Article 242 of Chapter 12 states:

“(1) When a court, by a judgment which has become res judicata, declares any instrument having the force of law or any provision thereof to run counter to any provision of the constitution of Malta or to any human right or fundamental freedom set out in the First Schedule to the European Convention Act, or to be ultra vires, the registrar shall send a copy of the said judgment to the Speaker of the House of Representatives, who shall during the first sitting of the House following the receipt of such judgment inform the House of such receipt and lay a copy of the judgment on the table of the House.

“(2) Where there has been a judgment as is mentioned in subarticle (1) the Prime Minister may, within the period of six months from the date that the judgment has become res judicata and to the extent necessary in his opinion to remove any inconsistency with the constitution of Malta or with the relevant human right or fundamental freedom set out in the First Schedule to the European Convention Act as declared in the said judgment, make regulations deleting the relevant instrument or any provision thereof declared to run counter to the constitution or the First Schedule to the European Convention Act as mentioned in subarticle (1).”

If a court decision was effective erga omnes, article 242(2) would not be necessary. Article 6 of the constitution did not state that any law which was inconsistent with the constitution would be null and without any effect but only that it had no effect.

A court had to find a provision of law to be in breach of the constitution not to apply it and not simply because another court in another case had declared that this provision was unlawful

It left open the question whether a decision of the court which declared a provision of law to be in violation of the constitution was effective inter partes or erga omnes.

A claimant in a human rights case, such as in the Mario Galea Testaferrata case, had to have legal interest to file the case and any remedy granted by the court was limited to the interest of the parties.

The remedy granted by the court was not to invalidate a law but that a provision of law would be declared without effect insofar as to the parties in that court case were concerned.

While the court appreciated the argument that the law should be the same for all, court decisions, it maintained, did not have effect erga omnes.

The court did not agree with the decision in the Vassallo case that decisions applied erga omnes. A court had to find a provision of law to be in breach of the constitution not to apply it and not simply because another court in another case had declared that this provision was unlawful.

The court noted that in the circumstances the emphyteutas, Portelli and others, had a right under article 12(4) of Chapter 158 to convert their title to a perpetual ċens. The ground rent was multiplied by six, and revised every 15 years, and increased proportionally with the increase in the cost of living.

It resulted that, when the ċens terminated on August 15, 1995, Portelli and others tried to utilise that right by converting their ċens into a perpetual emphyteusis.

The Court of Appeal said it was not competent to decide a human rights case. It said that the case should be referred back to the First Hall of the Civil Court in order to make a reference to the Constitutional Court, to enable the first court to decide the case.

For these reasons, on October 31, 2014, the Court of Appeal gave judgment by declaring that the Constitutional Court decision in the Galea Testaferrata case was not binding upon the parties in this case.

It revoked the first court’s decisions of January 27, 2010 and of November 17, 2010, without prejudice to the merits of the case and the pleas of Azzopardi.

The Court of Appeal also sent the case back for decision to the First Hall of the Civil Court, which had to make a reference to the Constitutional Court as to whether article 12(4) and 12(6) of Chapter 158 violated the human rights of Azzopardi and to decide the merits after receiving a reply from the Constitutional Court.

Dr Karl Grech Orr is apartner at Ganado Advocates.