There should be no doubt that in Malta the doctrine of constitutional supremacy applies. Not that the so-called “revisionists of constitutional doctrine” do not have some basis for their reasoning.
... Malta has a doctrine of constitutional supremacy...- Ivan E. Sammut
The present Maltese position owes a lot to the original stand of parliamentary supremacy applicable in the UK, which, for almost two centuries, ruled over Malta. The British rule of parliamentary sovereignty is, to a certain extent, reflected limitedly in Maltese constitutional law.
Article 65(1) of the Constitution states:
“Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Malta …”
Way back in 1987, Ian Refalo, lecturer in constitutional law, taught us that this particular sub-section of the Constitution is a reflection of the legislative supremacy which the UK Parliament enjoys but with an important difference. While the British Parliament is sovereign and supreme, because its legislative function cannot be constitutionally challenged in any court except for technical defects, like the lack of a signature on the Bill, in Malta any Maltese citizen who feels aggrieved by some legislation can and does take the matter in front of the competent courts.
Consequently, the Maltese Parliament is supreme within and subject to the Constitution itself. The words “subject to the provisions of this Constitution” limit the supremacy of the Maltese Parliament. To my mind, this supremacy has even been further curtailed in 2003, prior to EU accession, when Parliament added the following after the above-mentioned provisions in article 65(1
“…in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations, in particular those assumed by the treaty of accession to the European Union signed in Athens on April 16, 2003.”
The question of the legislative supremacy or otherwise of the Maltese Parliament is also linked to its ability to amend the Constitution. Unlike the UK, where Parliament’s legislative supremacy is unfettered, article 66 of our Constitution provides for a three-tier entrenchment of the Constitution.
At the first and lowest threshold level, any provision of the Constitution needs an absolute majority of Parliament, as against a simple majority required for ordinary laws.
At the second level, certain particular provisions like, for example, the provisions on elections and Parliament’s functions, would need two-thirds of the members of the House to pass.
Finally, the third level, in order to ensure that Parliament cannot prolong its life span beyond five years, requires that, besides the two-thirds parliamentary majority, a referendum is also held.
According to Prof. Refalo, another issue which impinges on the Maltese Parliament’s supremacy is the manner in which the amendment of the 1974 Republican Constitution was brought about. Article 6 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.”
In 1974, this particular provision was made use of to amend the Constitution. Then, article 6 was entrenched at the lowest level of constitutional entrenchment.
The pre-Republican Parliament amended article 6 of the Constitution by absolute majority. Today, it would need a two-thirds majority. There was general consensus on the radical change from a constitutional monarchy to a republic, with only six members of Parliament voting against.
The repealing law, Act LVII of 1974 stipulated that that any Act of Parliament would be valid “notwithstanding any provision of the Constitution” and, moreover, that “any inconsistency” shall be “without effect”. In this instance, it could be well said that the Maltese Parliament was actually supreme.
However, the life of Act LVII was extremely short-lived – the shortest interval possible, namely that between the former Governor-General, the late Sir Anthony Mamo, signing it into law and then immediately afterwards signing Act LVIII, bringing into force the new Republican Constitution and entrenching article 6, thus solidly re-constraining Parliament’s law-making power within the limits set by the Constitution.
Consequently, for this short interval, it would not be wrong to say that the Maltese Parliament was supreme.
Also, on the basis of British constitutional theory, one can question whether Parliament could renounce to the supremacy it had achieved during that short interval and bind successive Parliaments. However, I am of the opinion that, today, the supremacy of the Constitution cannot be doubted as (i) according to Prof. Refalo the Constitution becomes the source of its own legality and today no one would question the legality of the Constitution in any court of law and (ii) the Maltese courts continued after 1974 to apply the judicial doctrine of constitutional supremacy and to consider Parliament bound by the Constitution.
Therefore, insofar as the courts ascertain their jurisdiction to enquire whether an enacted law is in conformity with the Constitution and that Parliament derives its authority from the Constitution and, consequently, bound by it, one can safely conclude that Malta has a doctrine of constitutional supremacy and Parliament may be said to have a limited supremacy only.
As to the remaining question, that the courts still continue to apply and enforce laws that the Constitutional Court has voided by reason of their unconstitutionality, the strict view of constitutional jurists considers a legislative enactment that is declared unconstitutional as being, for all legal intents and purposes, a total nullity and it is deemed as if it had never existed.
The law itself would be referred to as being per se repugnant to the Constitution. It is not always the case, however, that a law is constitutionally faulty per se. Thus, it may well be valid in its general import but invalid in its application to certain factual situations.
To exemplify, an otherwise valid law may be held unconstitutional only insofar as it is allowed to operate retrospectively such as, in pertinent cases, when it vitiates contractually-vested rights.
A judicial declaration of invalidity, it is also true, may not necessarily obliterate all the effects and consequences of a void act occurring prior to such a declaration. Thus, in certain cases, a court may possibly have to recognise the interim effects of said laws prior to their declaration of unconstitutionality.
I have heard of a case where the Court of Appeal of a foreign country was both inventive and practical in declaring that where a statute or part of it is found to be unconstitutionally null and void, it has an inherent power to make a consequential striking out of the invalid statute from the statute book.
Alternatively, I would suggest that an automatic parliamentary mechanism should be set in motion, preferably under the aegis of the office of the Speaker of the House of Representatives, to automatically strike off the void law from the statute book.
I now truly hope that the supremacy controversy can simmer peacefully for the rest of the summer.
Dr Sammut is a lawyer.