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Evaluation of appeal is required to determine which declarations are res judicata

By December 27, 2020November 30th, 2023No Comments

This principle was reiterated in Ismail Issa v. Attorney General decided on the 26th November 2020 by the Civil Court, Constitutional Jurisdiction.

In 1999 Adelina Aquilina initiated annulment procedures against Issa. Aquilina never alleged that the marriage was simulated so that Issa would be allowed to live in Malta.

By a decision given by the First Hall Civil Court on the 29th May 2003 in the names of Adelina Aquilina v. Ismail Issa, the Court declared the annulment of the marriage. Issa filed an application on the 17th December 2019 through which he declared that the Court imputed the annulment of marriage to the applicant in terms of Article 19(1)(c) of the Marriages Act on the bases that Aquilina’s consent was acquired by deception as a result of simulation.

The First Hall Civil Court stated that Aquilina’s affidavit shows her worries about her relationship with Issa due to the latter’s Egyptian citizenship, however, she succumbed to his pressure and promises in order to accommodate him. The Court commented that this is something which occurs frequently in marriages with Arab nationals.

The applicant, Issa, believed that these statements caused racial discrimination in his regard. In fact, the applicant held that due to this judgment, he received a letter from Identity Malta on the 28th February 2019 whereby procedures were initiated in terms of Article 14 of the Maltese Citizenship Act in order to revoke his Maltese citizenship.

Therefore, the applicant requested the Civil Court in its Constitutional Jurisdiction to declare that by the judgment delivered on the 29th May 2003 by the First Hall Civil Court, Issa’s right of protection against racial discrimination in terms of Article 45 of the Constitution of Malta and Article 14 of the European Convention was violated.

The Attorney General held that the Court shall use its discretion to decline to exercise its constitutional powers, and this in terms of Article 46(2) of the Constitution of Malta and the proviso to Article 4(2) of Chapter 319. The Attorney General further held that proceedings of a constitutional nature are not meant to substitute ordinary proceedings that could have been initiated, claiming that Issa had the faculty to appeal the decision of the First Hall Civil Court but he did not do so.

The Civil Court in its Constitutional Jurisdiction referred to the proviso to Article 46(2) of the Constitution holding that “the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law”.

Reference was made to several judgments enunciating the principle that the Court shall consider whether the applicant had any other ordinary remedies at his disposal. For the Court to determine whether it shall exercise its constitutional powers, it shall consider whether the alternative remedy that was available to the applicant was appropriate, effective, adequate and accessible. The Court’s discretion shall be exercised in the best administration of justice in order to prevent abuse of constitutional proceedings whilst ensuring that those genuinely seeking a constitutional remedy will not be obstructed from doing so.

In relation to the Attorney General’s claim that the applicant should have appealed from the decision given by the First Hall Civil Court, the Constitutional Court refers to Article 219 of the Code of Organization and Civil Procedure holding that: “Every declaration intended by the court to be conclusive or binding shall be included in the operative part of the judgment”. An appeal can only be lodged from the operative part of the judgment otherwise it will be inadmissible.

The Court observes that the applicant’s statement that the First Hall Civil Court annulled the marriage in terms of Article 19(1)(c) of the Marriages Act is incorrect since although reference was made to this article in considering the case, no reference to such was made in the operative part. On this basis, no appeal could have been lodged in this regard. The Court acknowledged that it is not competent to consider the merits of the annulment nor the simulation of the marriage hence it will not delve into these matters. The Court will limit its evaluation to whether the decision was arrived at on the bases of discrimination and whether the First Hall Civil Court’s considerations will lead Identity Malta to revoke the applicant’s Maltese citizenship.

The Civil Court in its Constitutional Jurisdiction held that even though constitutional proceedings are extraordinary proceedings, well-established jurisprudence provides that a person who alleges violations of fundamental rights shall not be obliged to seek an ordinary remedy if the remedy that could be given will not be effective to address the complaint. In fact, since it appears prima facie that the applicant did not have any ordinary, effective and adequate remedy, the Court decided that it will determine the case concerned.

Avv Malcolm Mifsud


Mifsud & Mifsud Advocates