Issue link: https://maltatoday.uberflip.com/i/1321294
maltatoday | SUNDAY • 20 DECEMBER 2020 15 This principle was reiterated in Ismail Issa v. Attorney General decided on the 26th November 2020 by the Civil Court, Constitu- tional Jurisdiction. In 1999 Adelina Aquilina initiat- ed 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 Aq- uilina v. Ismail Issa, the Court de- clared the annulment of the mar- riage. Issa filed an application on the 17th December 2019 through which he declared that the Court imputed the annulment of mar- riage to the applicant in terms of Article 19(1)(c) of the Marriages Act on the bases that Aquilina's consent was acquired by decep- tion as a result of simulation. The First Hall Civil Court stat- ed that Aquilina's affidavit shows her worries about her relationship with Issa due to the latter's Egyp- tian citizenship, however, she succumbed to his pressure and promises in order to accommo- date him. The Court commented that this is something which oc- curs 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 pro- cedures were initiated in terms of Article 14 of the Maltese Citi- zenship Act in order to revoke his Maltese citizenship. Therefore, the applicant re- quested the Civil Court in its Constitutional Jurisdiction to de- clare that by the judgment deliv- ered on the 29th May 2003 by the First Hall Civil Court, Issa's right of protection against racial dis- crimination in terms of Article 45 of the Constitution of Malta and Article 14 of the European Con- vention was violated. The Attorney General held that the Court shall use its discretion to decline to exercise its constitu- tional powers, and this in terms of Article 46(2) of the Constitution of Malta and the proviso to Arti- cle 4(2) of Chapter 319. The At- torney 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 Consti- tutional Jurisdiction referred to the proviso to Article 46(2) of the Constitution holding that "the Court may, if it considers it desir- able 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 con- cerned under any other law". Reference was made to several judgments enunciating the prin- ciple that the Court shall con- sider whether the applicant had any other ordinary remedies at his disposal. For the Court to de- termine whether it shall exercise its constitutional powers, it shall consider whether the alternative remedy that was available to the applicant was appropriate, ef- fective, adequate and accessible. The Court's discretion shall be exercised in the best administra- tion of justice in order to prevent abuse of constitutional proceed- ings whilst ensuring that those genuinely seeking a constitution- al remedy will not be obstructed from doing so. In relation to the Attorney Gen- eral'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 ap- plicant's statement that the First Hall Civil Court annulled the marriage in terms of Article 19(1) (c) of the Marriages Act is incor- rect 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 simula- tion 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 ap- plicant's Maltese citizenship. The Civil Court in its Constitu- tional Jurisdiction held that even though constitutional proceed- ings are extraordinary proceed- ings, well-established jurispru- dence 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 ef- fective to address the complaint. In fact, since it appears prima fa- cie that the applicant did not have any ordinary, effective and ade- quate remedy, the Court decid- ed that it will determine the case concerned. COMMERCIAL CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT Constitutional proceedings can be initiated if there's no effective and adequate remedy HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. 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Suitable candidates are requested to send a detailed CV to info. xzonemalta@gmail.com WANTED COLLECTIBLE items such panini albums and loose stickers, old post- cards and posted envelopes, medals, militaria, coins and paper money, books, toys, stamps, badges, paint- ings, gold & silver items etc. Call on 21310238, 99246632. LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates