Lower courts must follow higher ones, agree or not

The First Hall of the Civil Court (Constitutional Jurisdiction) on 2 January 2026 gave the State Advocate and the International Protection Agency leave to appeal against an interim order. Mr Justice Henri Mizzi had ordered on 22 December 2025 that the applicant, M.A., be released from detention while his constitutional case is heard. The court granted leave because its order might not follow what the Constitutional Court had said about interim measures, although the judge did not agree with that ruling.

The facts

M.A. filed a constitutional case against the State Advocate and the International Protection Agency over his detention under the law on asylum. He asked for release as an interim measure, and on 22 December 2025 the court granted it.

The same day, the State Advocate and the agency filed an urgent application for permission to appeal before the final judgment. Their main reason was that detention under the asylum law is a fairly new question for the courts, so it would be wise to bring it before the Constitutional Court.

M.A. replied on 23 December 2025. Lawyers for both sides made oral submissions on 26 December 2025.

What the court held

The court held that novelty alone does not justify leave to appeal. A point may be new but empty, or so clear that an appeal has no real chance. Leave may be given before final judgment where a case allows different views on law or fact, and the court considers it better and fairer to allow the appeal.

It added that interim measures differ from decrees on the conduct of a case. An appeal from an interim measure does not, or should not, stop the main case. Interim measures also often last a long time, which may favour review by a higher court.

On the merits, the court did not think the State's arguments could realistically succeed. The case rested on indirect and very limited evidence. The State Advocate and the agency had not proved a risk to national security or public order, or a risk of absconding. They had only "declared" such risks, and they did not deny that they had not even considered less drastic measures.

The court then turned to a ruling that neither side had cited. In Repubblika vs L-Avukat tal-Istat (24 November 2022), the Constitutional Court said an interim measure should not give a final remedy before all the evidence is heard, and should not express a view on the merits.

Malta has no formal doctrine of precedent. The court noted that, according to the Court of Appeal, the practice is that a first-instance court follows what a higher court decided, even if it disagrees. Since its order of 22 December 2025 might not follow the Constitutional Court's ruling, the court held that the chance to correct this should be given.

The judge made clear that he did not share the Constitutional Court's view. In his view, a court deciding an interim measure cannot avoid a provisional look at the merits, because it must decide whether the right claimed appears well founded and needs protection until judgment.

He also held that article 46(2) of the Constitution and article 4(2) of the European Convention Act (Chapter 319 of the Laws of Malta) allow a remedy only where at least a plausible or prima facie breach is found. Otherwise anyone could stop a case or another process by simply alleging a breach.

The court closed by stating its duty as a first-instance court: "dmirha kien li ssegwi dak li qalet dik il-qorti, taqbel jew ma taqbilx magħha" (its duty was to follow what that court said, whether it agrees with it or not). It granted leave to appeal and reserved costs.

Why it matters

A party who loses on an interim measure in a constitutional case should check whether the order departs from the Constitutional Court's ruling of 24 November 2022. That may be enough for leave to appeal, even where the first court thinks the merits favour the other side. The novelty of the question, on its own, will not be enough.

Where it sits

Interim measures in human rights cases rest on the court's wide power to give remedies under article 46(2) of the Constitution and article 4(2) of Chapter 319. The judge compared the test with that for a warrant of prohibitory injunction, which asks whether the applicant has a prima facie right and whether the warrant is needed.

On leave to appeal from decrees, the court named the Constitutional Court (13 January 1999) and the First Hall of the Civil Court (6 May 2022). It referred to the European Court of Human Rights (15 October 2009) on interim measures that last a long time, and to the same court (4 February 2005) on the need for a plausible claim of a breach.

On precedent, it relied on Repubblika vs L-Avukat tal-Istat (Constitutional Court, 24 November 2022) and on the Court of Appeal (15 December 1939). It also referred to the judge's own decree in Koray Global Malta Limited vs Shoreline Contracting Limited (23 July 2025). The court held that article 732A of Chapter 12 did not apply, since no new point had been raised and the decree was not a judgment.

Source

First Hall of the Civil Court (Constitutional Jurisdiction), 439/2025/1, 2 January 2026, 439/2025/1