Certain assertions made by Judge Giovanni Bonello in his two articles that appeared in The Times on April 27 and May 2 certainly call for comment.

My first observation is with regard to what he asserts to be the first of the “dismal doctrines” embraced by Parliament “with the complicity of the Constitutional Court which is that a declaration of nullity of a law made by a Constitutional Court has no effect on that law” unless Parliament repeals it.

This assertion is not in conformity with the Constitution. The Constitution does not authorise any Constitutional Court to declare null any law – whether old or new. Nor does it authorise any Constitutional Court to declare “invalid” any law, whether pre-1964 or 1964. What the Constitution does is that it enables the competent courts to declare a law as being “inconsistent with or in contravention of” any one of the articles that list the fundamental rights.

This authorisation by the Constitution is repeated in precisely these terms in articles 38, 39, 40, 41, 42, 44, 45 and 47. There is no mention of validity or nullity. These terms are, therefore, reserved for use, if any, by Parliament.

Any court which, in its decision, makes use of those terms will be, in fact, going beyond its jurisdiction, which is definitely assigned by the Constitution in those reiterated and unequivocal terms. In legal parlance, when they do so, and sometimes they do, they will be acting in an ultra vires manner.

Clearly, there is no juridical foundation for Judge Bonello’s conclusion: “A law that is valid and invalid at the same time, the sheer luxury of ambivalence”.

The concept of validity is not synonymous with the concept of consistency, as all those who are familiar with the French (Napoleonic) Code, know quite well.

It is a well known fact that a rule of law may be inconsistent with another rule of law in the same legal system, on its public order, and inconsistency may even amount to outright contrariness to another legal rule in the same legal order. All this is quite familiar to jurists who, when this occurs, refer to the rules of Interpretation to resolve the position.

Contravention, on the other hand, refers rather to that kind of behaviour, which goes against the fundamental right in question and not to a rule or article of law. In the first instance, therefore, it is improper to use the terms of validity and/or nullity in their juridical/judicial connotations while these terms can be used to denote behaviour of authorities or their officials.

I am not certain what is the second doctrine to which Judge Bonello objects. Maybe it is this: the lack of recognition by Parliament and the courts of the supremacy of the Constitution, inasmuch as he says that “these two doctrines have made a mockery of the most fundamental value of democratic governance: the supremacy of the Constitution”.

Well, when he later writes: “Diametrically opposite to the supremacy of the Constitution is the supremacy of Parliament”, I am not sure that this idea of supremacy can be endorsed.

The Constitution itself subjects its “supremacy” to the two-thirds will of Parliament.

Supremacy is a question of power. Where lies the ultimate power in our state? With us there is no doubt it is Parliament that has the power to do whatever it wills with a two-thirds majority of its members. Our Constitution was modelled on the lines of the British “Constitution” and there Parliament is supreme. And so it is with us; the only difference being that, in our case, that supremacy is watered down by the two-thirds majority rule. But, nevertheless, Parliament is supreme – not the Constitution, much less our Constitutional Court.

The events of 1974, still quite fresh in our memory, are proof enough if proof were needed

I take it that what the mediaeval jurists held to be the supremacy of their king/masters vis-à-vis the Pope, that “summa potestas superiorem non recognoscens” is what Judge Bonello means when he wrongly proclaims that our Constitution is supreme.

Therefore, our Constitutional Court is correct to hold, as Judge Bonello claims it has done, that “an ‘unconstitutional law’ only loses its validity if Parliament agrees and finds the time and the right disposition to repeal it”.

Clearly, there is no basis for an assertion such as “an ‘unconstitutional’ law is the greatest infamy against the supremacy of the Constitution” (my inverted commas) for there is no such supremacy.

The rest of the article is a repetition of this completely unwarranted notion of the supremacy of our Constitution, as this does not exist.

The first of the two articles – that of April 27 – deals with the judgement of the Civil Court First Hall delivered by Mr Justice Tonio Mallia on April 20 in the Axisa case.

I am an a former judge (a former Chief Justice, to boot) and it would not be prudent, not to say completely incorrect, for me to go into the merits or demerits of a judgement when this is still on its way to the Court of Appeal or the Constitutional Court.

Prof. Mifsud Bonnici is a former Chief Justice.

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