I will limit myself to three observations arising from Giuseppe Mifsud Bonnici’s reply (June 16).
... ‘to bear true and faithful allegiance to the Constitution’, not to some majority in Parliament- Giovanni Bonello, Valletta
Supremacy of parliament. Prof. Mifsud Bonnici argues (I do not believe anyone tried that one before) that Malta is a “supremacy of Parliament” state, as opposed to one based on the supremacy of the Constitution – and this on the strength of the consideration that the law-making function is vested in Parliament and that Parliament can amend the Constitution.
Wrong. Parliament can, yes, make laws – but always “subject to the provisions of the Constitution” (article 65 (1)). This implies two fundamental subordinations by Parliament to the Constitution: that Parliament has to follow the dictates of the Constitution in the procedure prescribed for making laws and that Parliament cannot make laws that contrast with the Constitution. So what is supreme: Parliament or the Constitution?
Again, in its Constitution-amending function, Parliament is expressly subservient to the Constitution. Parliament may amend the Constitution, but only constitutionally, that is, following the dictates and constraints of the Constitution itself (article 66). So, again, what is supreme: Parliament or the Constitution?
In the UK, which is the classical, vibrant, text-book example of a “supremacy of Parliament” democracy, Parliament has no such limitations. None. Nada. Nil.
Validity of laws. Prof. Mifsud Bonnici’s second assertion is that “our Constitutional Court is not empowered to decide on the validity of a law”.
Wrong. Article 116 says exactly the opposite. It very expressly gives every person a right to challenge the validity of a law on Constitutional grounds, for “a declaration that any law is invalid on the grounds of inconsistency with the Constitution”. Again, article 95 (2)(e) expressly entitles the Constitutional Court “to hear and determine ... questions as to the validity of laws” on grounds other than human rights. The jurisdiction of the Constitutional Court to determine the validity of laws on human rights grounds arises from this sub-article conjointly with article 95 (2)(c). The validity of laws is part of the explicit functions of the Constitutional Court.
The corruption of the Constitution. The “interpretation” of the Constitution adopted by Prof. Mifsud Bonnici has produced results I will refrain from qualifying with adjectives. Following his doctrine, Malta now has laws that are valid and invalid at the same time. Malta has laws that are binding as regards to X but unenforceable as regards to Y. Malta has laws that the Constitutional Court yesterday damned as unconstitutional, today praises as constitutional and will tomorrow rubbish again as unconstitutional. And wait anxiously for the fourth instalment of the constitutional soap opera.
Following Prof. Mifsud Bonnici’s “doctrine”, Malta has laws the Constitutional Court has declared repulsive to the Constitution years ago but which it then still enforces with merry abandon. Malta has courts that apply even-handedly laws that respect the Constitution as well as those that defy it. Malta is a state in which an inferior court will re-examine (and often decide differently) on the validity of a law already declared invalid by the Constitutional Court.
On the strength of Prof. Mifsud Bonnici’s doctrine, Malta is a state in which article 1 of the Constitution has become meaningless. This eminently fundamental norm requires Malta to be a republic founded on the respect for human rights. Silly. According to Prof. Mifsud Bonnici’s teachings, Malta is now a republic based on the respect for human rights and, with the ruinous blessings of the Constitutional Court, on the enforcement of laws that violate them.
Some may be quite satisfied with the constitutional mess spawned by Prof. Mifsud Bonnici’s “interpretation”. I, for one, am not.
The Constitutional Court has advertised its impotence to restrain Parliament from enacting laws that injure human rights or that defeat the rest of the constitutional norms by voiding those unconstitutional laws. This is nothing less than tragic. This amounts to an open invitation by the Constitutional Court to Parliament to do exactly what it likes, when it likes – the Constitutional Court cannot enforce any respect for the Constitution by invalidating what goes against it. It has offered Parliament a free ticket to thrash the Constitution whenever it feels in the mood to do so. A tragic, some would say treasonable dereliction of its primary duty – to protect and enforce the fundamental norms of governance against abuse by politicians.
Just wait till a truly rogue government discovers the full potential of a Constitutional Court that has handed it an unrestricted licence to kill constitutionalism. Just wait.
Malta has already had reasons for which to thank the Constitutional Court. It now has one extra reason to do so.
May I remind judges of the Constitutional Court that, on taking office, they solemnly swore “to bear true and faithful allegiance to the Constitution”, not to some majority in Parliament. Today, they are bearing a true and faithful allegiance to the transient wills of Parliament, whether these conform to the Constitution or not, disregarding as expendable the clear will of the supreme law.