I refer to the contribution The Supremacy of Parliaments by Chief Justice Emeritus Giuseppe Mifsud Bonnici (June 2).

... laws inconsistent with the Constitution are void...- Giovanni Bonello, Valletta

I see little point in engaging in controversy on these issues. We are obviously singing together – from different hymn books.

In so far as I could understand, he challenged my platform that, according to the Constitution, Malta is a state that follows the doctrine of the supremacy of the Constitution.

According to his reading, Malta embraces the doctrine of the supremacy of Parliament.

Never having heard this before, I looked closely for the supremacy of Parliament in my edition of the Constitution but could find no trace of it. On the contrary, I found the supremacy of the Constitution stamped, and very boldly too, all over it.

The supremacy of the Constitution starts with the very legislative power of Parliament. This power is expressly subordinated to the overriding shackles of the Constitution and expressly limited by them. Article 65 (1 Parliament may make laws – but only as long as they are in accordance with the Constitution. So who limits what? Does Parliament override the Constitution or is it, very clearly, the other way round?

The distinctive hallmark of “supremacy of Parliament” systems is that Parliament has no constraints or limitations on its law-making functions. In “supremacy of the Constitution” systems, on the other hand, the law-making function of Parliament is constrained and limited by the dictates of the Constitution. As it is in Malta.

The main thrust of Prof. Mifsud Bonnici’s argument is that “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... 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”.

I am afraid that this is manifestly wrong and that this is where Prof. Mifsud Bonnici loses me completely. It is the function of the Constitutional Court to determine, in adversarial proceedings, whether laws are inconsistent with the Constitution on human rights grounds or on other grounds (article 95). But, then, article 6 (overlooked by Prof. Mifsud Bonnici) very expressly takes over to provide “Constitution to be supreme law. If any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void”.

It is, to say the least, baffling that Prof. Mifsud Bonnici failed to mention article 6, the most determining article in the whole architecture of the whole Constitution. I assume he had his good reasons not to, though I have not fathomed them yet. The Constitution mandates expressly that laws inconsistent with the Constitution are void – period. Not voidable, not subject to repeal by Parliament but plain and simple void.

The very finding by the Constitutional Court that a law is inconsistent with the Constitution, ex ipsis, renders that law void. Article 6 requires no auxiliary push by Parliament to void a law that, by operation of the Constitution itself, is void.

My original stricture was that, notwithstanding the extremely compelling provisions of the Constitution, the courts still continue to apply and enforce laws the Constitutional Court has voided by reason of their unconstitutionality. They apply laws which they have themselves declared to be an outrage against the Constitution. Anyone else disturbed by this?

I did not lament that Parliament is sluggish in repealing laws that the Constitutional Court has found to violate the Constitution. On the contrary, my contention was that, according to the very strident dictates of the Constitution, a law voided by operation of a judgement of the Constitutional Court is just that: a void law. Parliament has (or should have) no function in repealing it. It is the very finding by the Constitutional Court that has voided it. That is the beginning and the end of the affair and Parliament should not come into it at all. Parliament can, of course, enact corrective legislation to replace a law voided for disrespecting the Constitution.

To use continental constitutional jargon: in a finding of unconstitutionality, the Constitutional Court exercises its negative legislative functions. The positive ones are vested in Parliament.

This is what I meant by “the dismal doctrine embraced by Parliament with the complicity of the Constitutional Court”.

And this is what I reiterate here.