I too, like Giovanni Bonello (June 6) see little point in engaging in controversy on constitutional issues.

However, on the two issues which stood out in Dr Bonello’s article of May 2, which, as he says, we may be looking at from opposite angles, I have this to add.

The first issue refers to his assertion that in our system we subscribe to the doctrine of supremacy of the Constitution.

Unfortunately, perhaps, but it is not so. Article 66 of the Constitution itself sets out that, subject to what is provided in that article – “Parliament may alter any of the provisions of this Constitution” – and this for me indicates exactly where the real supreme power lies. It lies in Parliament, which shackled and restrained as it is, still, in the last resort, it can always change any part of the Constitution. In fact, make out a new one. It is therefore clear, to my mind, where the ultimate supremacy lies.

Compare to this the position which enshrines the supremacy of the basic law (the Constitution) of the Federal Republic of Germany. There, in article 79(3), it states: “Amendments of this basic law affecting the division of the Federation into Leander, the participation in principle of the Leander in Legislation, or the basic principles laid down in articles 1 and 2, shall be inadmissible”. Which means that no amending law can be even just proposed. Here it is clear that the supremacy of the basic law in the parts mentioned is above all other powers. Untouchable supremacy barring armed revolution.

The second issue in his original May 2 article refers to what he describes as follows:

“According to our Constitutional Court, an unconstitutional law only loses its validity if Parliament agrees and finds the time and the right disposition to repeal it. An unconstitutional law is the greatest infamy against the supremacy of the Constitution.”

As I have already pointed out in my first contribution, our Constitutional Court is not empowered to decide on the validity of a law. Dr Bonello all along had the fundamental rights and liberties section of our Constitution and it is clear that, in our case, a law, which is inconsistent or is in contravention with those rights, is what the Constitution reiterates over and over again in that section. Not on its validity.

I come now to article 6, which decrees that any law, which is inconsistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void –“tkun bla effett”. Now, I think that our courts have distinguished between, a “law” that is no law at all if it has contravened any one of the provisions of the law-making process, for example - a “law” which has not been approved when there is no quorum in the House or a “law” which has not been submitted to the President’s assent etc. In all these cases of similar defects in the enactment through some clear failure in the due process of law making is not law at all and it is void and therefore “bla effett”. There is no doubt that in these cases the courts will not continue to apply and enforce these “laws”. But that is as far as it goes. The inconsistencies which are brought about in violation of the fundamental rights sections of the Constitution do not have this kind of objective result.

I will illustrate this by referring to a simple hypothesis. Supposing that a law has been held not to be inconsistent with one of the fundamental rights by the Civil Court First Hall, which, however, by two of the three judges of the Constitution Court, that first decision is reversed and the law is declared inconsistent with the Constitution. Now Dr Bonello holds that once that law has been declared to be void, “bla effett”, that is the end of the matter and the courts have no business to continue to apply and enforce that law. Now it is clear that, in our system, that decision of inconsistency is still liable to be overturned by three other judges sitting in the Constitution Court, seeing that from the start – although not publicly obvious, that decision was controversial, to say the least.This is the reason why I have always advocated that to lessen the possibility of this occuring, at least in the same decade, the Constitutional Court should be

composed of five judges as originally provided in 1964, and not three, as wrongly reformed in 1974. With 20 plus judges in our national panel, this should now be quite possible without disrupting the normal business of our courts. This would give more weight and authority to our Constitutional Court.

What Dr Bonello hungers for therefore is not possible. There can be no finality in the Constitutional Court’s decisions on deciding on the inconsistency of a law with the fundamental rights provisions. That kind of formality can only be achieved, if at all, through Parliament’s intervention.

I don’t think that I need to write more.

(The author is a former Chief Justice.)