On April 25, I attended the President’s Forum at the Palace in Valletta with the title, which translated into English roughly reads ‘Is the Constitution still serving people’s needs?’ Papers were read by Michael Frendo, former Speaker of the House of Representatives, former Chief Justice Joseph Said Pullicino, the Ombudsman, Associate Professor Kevin Aquilina and Giovanni Bonello, a former Judge of the European Court of Human Rights in Strasbourg. This last mentioned intervention by Bonello disturbed me, which is why it is the subject of this article.
The Constitutional Court can declare a law to be invalid but it cannot abrogate, repeal or revoke any law as Bonello clearly expects it to do
The title of that contribution indicated the rift of what was to come, ‘The expected supremacy delusion – Unconstitutional Laws and neocolonial nostalgias’. In the very first third paragraph Bonello wrote:
“The Constitutional Court of Malta has embraced two principles which I find to be totally repulsive to the very letter and spirit of the Constitution. That court, the Constitutional Court of Malta, is advocating, firstly, that laws which it annuls as unconstitutional remain valid and enforceable if Parliament does not repeal them”.
In my opinion, this is unfounded and not correct. When and where has the Constitutional Court advocated that laws which it annuls as unconstitutional remain valid and enforceable? Nowhere. What the Constitutional Court does when it finds that a law is inconsistent with the Constitution, is to declare that law “to the extent of the inconsistency” to be void in conformity with Article 6 of the Constitution. I do not know of any pronouncement of our Constitutional Court that an inconsistent law is valid and even less so, that it is enforceable. The Constitutional Court sticks to what it is empowered to do by the Constitution, no more and no less.
And yet Bonello unfortunately has no scruple to declare that the Constitutional Court while sticking strictly to what it is authorised to do by the Constitution calls this a “betrayal” of the Constitution and has “made it a travesty of itself”. This is an unwarranted vituperation of our Constitutional Court. From the whole drift of Bonello’s paper it is clear that he doesn’t like the distinction between declaring a law void to the extent of its inconsistency with a fundamental right or liberty and abrogating repealing or revoking that law.
He clearly expects the Constitutional Court to abrogate repeal or revoke an inconsistent law when the Constitution does not confer upon that court this power, which power the Constitution reserves and grants to Parliament. But Bonello clearly expects it so to do. In fact – after the proposition that no judgment can repeal a law, he asks “why not?” and continues: “It is Parliament which is vested with the exclusive power to make and repeal laws (is it? Only neo-colonial nostalgia for a uniquely British model dictates so).”
So much for the supremacy of the Constitution. The supremacy of the Constitution in fact, appears to depend very much on the supporting role of the Constitutional Court and when this is not forthcoming – whether it is through betrayal, or for an unholy desire to subject it to a via crucis, or simply for a nonchalant attitude of ‘business as usual’ or any other one of the numerous epithets, which Bonello hurls at our Constitutional Court and other courts.
The second principle which our Constitutional Court upholds, according to Bonello, is that when a law is declared void, that pronunciation affects the plaintiff of that action but that law remains valid for everyone else. Strictly speaking this is not a principle pronounced by the Constitutional Court, but is a common principle of ordinary law and whether it is applicable or not to the declarations of the Constitutional Court after it pronounces a law void to the extent of its inconsistency with the fundamental right or liberty, depends on the circumstances of each particular case.
It is widely acknowledged in juridical circles that in the same legal order two rules of law can be found to be in contrast one with the other, if not contrary one to the other and even in outright contradiction. I am sure that there are seasoned lawyers, who years ago were my students and will remember me mentioning this phenomenon during my Philosophy of Law lectures.
There is no doubt that occasionally this also happens in judgments on fundamental rights and liberties cases, as I did say in my short intervention at the Forum. This is due, no doubt, firstly because of human frailty and secondly, sometimes, because of a particular judge’s incompetence or lack of judiciousness. No one approves when these things happen, rather they are criticised and deprecated. That said however, how and why is the Constitutional Court to blame when this happens? This can only be so attributed when the fault is committed by the Constitutional Court itself, which, of course, rarely happens.
Following these two ‘wrong’ principles Bonello claims that our courts, our Executive and our Parliament have killed “the supremacy of the Constitution”. If that is so, it follows that the principle of supremacy has shifted to the courts, the Executive or to Parliament. It does not lie anymore in the Constitution. The first two, the courts and the Executive are clearly out and therefore supremacy rests with Parliament – which Bonello is at great pains, to reject.
His lamentation continues when he accuses the Constitutional Court of upholding the dogma that only Parliament can undo a law. But, I repeat, the Constitution itself gives Parliament the right to make and unmake laws, which it has made, by abrogating repealing or revoking them. The Constitutional Court can declare a law to be invalid but it cannot abrogate, repeal or revoke any law as Bonello clearly expects it to do.
There it is. The much vaunted Supremacy of the Constitution is after all the product of an old derelict of colonial origin. To use his favourite type of language “there goes out the window the doctrine of the Separation of Powers”, as Parliament is given half of the power to make laws but the other half of repealing those laws is handed to the Constitutional Court.
The pronouncement of invalidity by the Constitutional Court should of course, be observed by all the other courts. When this is not done, as I said in my intervention in the Forum, this is due to human frailty or incompetence or both. But this does not justify or authorise Bonello’s vituperative conclusions on the Constitutional Court. And it is a common juridical experience that its interpretations of the law do not always coincide with that of other judges who are called upon to apply the rules of law.
This is what happened in the two cases mentioned in the first paragraph of Bonello’s address. The Constitutional Court in the first case, Muscat 2010, decided that the law imposing mandatory arbitration in certain cases was not inconsistent with the fundamental right invoked by the plaintiff, while in the later case of Vassallo 2011 the Constitutional Court reached a different conclusion and said that law violates that fundamental right. Bonello tries to ridicule this happening, presumably because he has nothing concrete to say against a very legitimate and perfectly acceptable proceeding.
No wonder that the Chief Justice, Silvio Camilleri, took strong objection to this and other similar niceties in that allocution.
Bonello’s address was meant to be a demonstration of the supremacy of the Constitution. I understand the frustration resulting from the inability to make this proposition stick. This is due to the blindness to the glaring fact that it is not possible to accord supremacy to any institute unless that institute has the power and ability to act. Parliament and the courts have this capacity to act but the Constitution depends on at least one of them to be able, at least, in subsidium, to act.
What worries me is the harm that this address impresses in others. This is what Fr Joe Borg wrote in this paper on May 5 – “Judge Bonello drives home over and over again one frightening point. The Constitutional Court protects the unconstitutional over the Constitution.” This is not precise, of course, but it is the impression the writer got.
Another similar albeit imprecise impression is that of Austin Bencini who in the same paper on April 28, wrote: “Judge Bonello once more sounded the alarm on the unexplainable reluctance of our Constitutional Court in enforcing the supremacy of the Constitution.”
What does Bencini propose, that our Constitutional Court should do to enforce the so-called supremacy of the Constitution? Although he is a staunch follower of Bonello, I doubt whether he is prepared to follow him in this – that our Constitutional Court should revoke, abrogate or repeal any law, which it deems to be unconstitutional with the Constitution. Or am I wrong?
Giuseppe Mifsud Bonnici is Chief Justice Emeritus.