Mixity in Maltese Public Law: The Constitution of Malta as a Microcosm of the Maltese Mixed Legal System
Prof. Kevin Aquilina has published his fifth peer reviewed journal article on the Maltese legal system. Entitled ‘Mixity in Maltese Public Law: The Constitution of Malta as a Microcosm of the Maltese Legal System,’ it is published in the Journal of Comparative Law, Volume 20, No. 1, March 2025, pp. 3-21. The digital edition of The Journal of Comparative Law is hosted by HeinOnline.
This fifth article studies mixity in Maltese Public Law with special reference to the 1964 Constitution of Malta as amended to date. Although, at face value, the impression might be given that the Constitution is but another Westminster-modelled constitution bearing the characteristic imprint of a Whitehall constitution that was dished out to the newly independent emerging colonies during decolonization of the early 1960s, a more insightful introspection reveals that several legal systems are reflected in this single legislative act even if it is considered to be predominantly a common law artefact. The Constitution of Malta has been inspired by, and draws upon, the civil law and common law legal systems, canon law, public international law (including Council of Europe Conventions), European Union law, and the national law of certain foreign jurisdictions such as Italy, the United States of America, and New Zealand. This is not typical of the Constitution itself but also of legislation enacted during colonial times, bearing in mind that the Constitution itself is not the product of a Maltese Parliament or an autochthonous initiative, but of a British Order in Council.
In this respect, the basic law of Malta is a microcosm of the Maltese mixed legal system in so far as several legal systems operate within the Constitution in the same way that they interact within the legal system as a whole. This mixity, inevitably, poses its own difficulties and constraints, the more so where legal cultures from which it draws upon might not necessarily be in line with each other, so much so that conflict arises between the constitutional provisions themselves or in the interpretation afforded thereto by the judicial organ of the State.
The article identifies mixity in the Maltese legal system and illustrates how the organic law of public law (and the whole of public law for that matter), of which constitutional law is its pinnacle and the Constitution of Malta provides the edifice and foundations upon which the whole legal system rests, is a mixed concoction, as is the legal system itself. By studying the Constitution of Malta, one can grasp that mixity is a fundamental trait characteristic of the Maltese legal system not only within the private law realm but even in its public law.
The previous four peer reviewed papers of Prof. Kevin Aquilina on the Maltese Legal System are available at:
(i) ‘Rethinking Maltese Legal Hybridity: A Chimeric Illusion or a Healthy Grafted European Law Mixture?’, Journal of Civil Law Studies, Volume 4, 2011, pp. 261-283.
(ii) ‘Non-Autochthonous Law Influences on the Maltese Legal System’. Id-Dritt, Volume XXII, 2011, pp. 265-278.
(iii) ‘The Nature and Sources of the Maltese Mixed Legal System: A Strange Case of Dr Jekyll and Mr Hyde’, Comparative Law Review, Vol. 4, Issue No. 1, 2013, pp. 1-38.
(iv) ‘Legislative Drafting and Statutory Interpretation in the Maltese Mixed Legal System’, International Journal of Legislative Drafting and Law Reform, Vol. 6, June 2017, pp. 29-42.
All five journal articles are available in the Open Access Repository (OAR) of the University of Malta Library.
