Article 6 of the Constitution of Malta states that: “Subject to the provisions of sub-articles (7) and (9) of article 47 and of article 66 of this Constitution, 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.”

This is... a manifestation of the Constitution’s supremacy over Parliament- Kevin Aquilina

First, article 6 does not restrict itself only to inconsistency with any provision of chapter IV of the Constitution dealing with human rights and fundamental freedoms. Article 6 goes beyond that and subjects all laws (other than the Constitution) to consistency with all the provisions of the Constitution except for those contained in article 47(7) and (9) and article 66.

“Law” is defined in the Constitution as “any instrument having the force of law and any unwritten law”. “Law”, thus, includes subsidiary legislation (regulations, rules, orders, by-laws, schemes, warrants, etc.) and customary law such as usages of trade or constitutional conventions.

Second, once the competent constitutional courts – the Constitutional Court or the Civil Court, First Hall, sitting in their constitutional competence – come to the conclusion that another law is inconsistent with the grund norm – the Constitution of Malta – such courts are bound, in terms of article 6, to note that the other law is void.

I say “note” not “declare” because it is not the courts’ judgement which renders void the inconsistent law: it is the Constitution in article 6 that does so. The marginal note to article 6 reads: “Constitution to be supreme law”.

Although at law normally marginal notes are not used for interpretation purposes (see Chandler v D.P.P.), there is no doubt that the marginal note in question is a very apt and faithful synopsis of the provision in question.

Third, the concept of a “void” law has to be contrasted with that of an “invalid” law.

Article 116 of the Constitution allows a “right of action for a declaration that any law is invalid on any grounds other than inconsistency with the provisions of articles 33 to 45 of this Constitution”. A similar provision is found in article 95(2)(e).

Invalidity, to have effect, requires an express declaration to that effect in a court judgement. However, this is not the case with a void law because, in this case, the inconsistent law is void ab initio and ipso jure.

The Constitution establishes a hierarchy of nullity of laws – the most superior being void laws followed by invalid laws. Void laws and invalid laws therefore produce different effects at law.

The Constitution uses three terms: “inconsistency”, “void” and “invalid”.

The term “nullity” is not used (although the term “annulled” is used with regard to elections).

Void, in law, has more serious consequences than “invalid” because, in the case of article 6, the inconsistent law is ex lege void without necessarily requiring a pronouncement by a competent constitutional court declaring the inconsistent law to be void.

The inconsistent law is inherently void by its very own nature: although it remains on the statute book, once it is inconsistent with the Constitution, even if no court has taken note of such a state of affairs, it has ipso jure no legal effect. It is unenforceable and is a dead letter. Therefore, such law has no binding effect and nobody (courts, the government, public administration, any person) should follow its command.

Void implies that the provision is, by its very own essence or being, an absolute nullity. Once a law is void, it binds nobody and does not require a court declaration to that effect. If there is a court judgement noting that such inconsistent law is void, that court judgement obviously binds the parties thereto in terms of article 237 of the Code of Organisation and Civil Procedure and that same judgement also binds third parties, not by virtue of article 237 but, in so far as third parties are bound by operation of article 6 of the Constitution.

In law, a distinction is made between “void” and “voidable the latter term means that a provision is valid until it is annulled. While voidable requires a pronouncement by a court; what is inherently void requires no court pronouncement other than the word of the law to that effect. In this respect, an inconsistent law is void ab initio and not when it is so declared by the competent constitutional court.

The court’s pronouncement that an inconsistent law is void is an indication of the legal status of that inconsistent law. Indeed, it is not the court’s judgement that makes the provision void, even though this has practical relevance as it is through such authoritative pronouncement that the community gets to know that an inconsistent law is void. The court’s decision simply notes a situation of fact as it obtains when the judgement is delivered.

However, the court’s judgement is retroactive in effect as it recognises that the inconsistent law was void not at the time of the delivery of the judgement but at the time the inconsistent law was enacted. This is but a manifestation of the Constitution’s supremacy over Parliament.

The Constitution uses its inbuilt defensive mechanism to strike down any law enacted by Parliament which is inconsistent with the Constitution and without, in reality, needing to have recourse to the judicial organ of the state to declare the inconsistent law void.

So although the other law can be inconsistent and void – and these are two different concepts – they are very much inter-linked to each other from a constitutional point of view. Inconsistency with the Constitution makes a law void; the inconsistency has to do with the juridical nature of the norm while a void law concerns the effects of the inconsistency of the norm.

The supremacy of the Constitution over Parliament is further manifested through the court’s declaration of invalidity of a law in terms of articles 116 and 95(2)(e) of the Constitution.

Fifth, foreign courts and authors have adopted the same interpretation.

The German Federal Constitutional Court has held that an unconstitutional law is “inconsistent with the basic law and, therefore, invalid”.

Schlaich states that an “unconstitutional law is from its inception (ex tunc) and without need for any further act (ipso iure) inoperative ...

The German view is that the Federal Constitutional Court does not annul a statute, (the court) does not invalidate: it merely establishes the invalidity (in a declaratory way).

The South African Constitutional Court has declared that “laws are objectively valid or invalid depending on whether they are or are not inconsistent with the Constitution. The fact that a dispute concerning inconsistency may only be decided years afterwards does not affect the objective nature of the invalidity”.

Prof. Aquilina is dean of the Faculty of Laws at the University of Malta.