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Why a new Constitution

The commentary on the Bangalore Principles of Judicial Conduct (judiciarymalta.gov.mt under Code of Ethics) quotes the “forbidden zones upon which authority may not trespass” for there to be “the enjoyment of individual liberty”.

This is the essence of constitutional justice, a most important phenomenon in the post-World-War-II evolution of western states, which allows certain tribunals, usually Constitutional Courts, to ensure that laws (and public authority acts) conform not only to the law but to the lex superior - the Constitution.

A rigid separation of powers is not in the citizen’s best interest

It is an age-old notion.

In Ancient Greece, psephisma (regulations) could not contravene the nomos (‘constitutional law’). Laws of the Holy Roman Empire in 1180AD point at constitutional justice.

In pre-Glorious Revolution (1688) England, Lord Coke proclaimed the nullity of laws repugnant to ‘common law and reason’. In pre-Revolutionary France too, the Parlements ensured that laws and ordonnances conformedto the (unwritten) lois fondamentales du royaume.

But France grew weary of the abuses of the Parlements and the 1789 Revolution proclaimed the ideal of a rigid separation of powers, whereby the judiciary was forbidden from intervening in the legislative’s and executive’s spheres of action. The judicial review role of the Conseil d’État came much later.

Although, paradoxically, England does not apply constitutional justice, judges who inhabit the rest of the common law world are expected not to apply unconstitutional laws. America is this model’s foremost proponent, following the Marbury v. Madison (1803) case.

In these jurisdictions, review is ‘diffused’, all courts having the power and the duty to determine whether statutes run counter to the ‘higher law’. In theory, a court’s unconstitutionality decision does not annul the law for the entire country but only in respect to the parties to the litigation. In practice, however, the doctrine of stare decisis binds all inferior courts to follow the superior court’s decision of unconstitutionality, thereby bringing about an erga omnes effect.

The European model, on the other hand, is ‘concentrated’, mostly because judges of the ‘continental’ system view themselves as mere State functionaries. Such judges, therefore, expect specialised judges sitting on specialised (Constitutional) courts to interpret the Constitution.

Notwithstanding the differences that exist, the bottom line is that, between the American and the European models, constitutional justice is now universally accepted. There are two issues with constitutional justice: its necessity and its legitimacy.

Legislative backlogs are one reason for the former.

Being too ambitious in their law-making efforts but wanting to avoid paralysis, parliaments usually delegate some of those efforts to other State organs, principally the executive.

But the welfare State has transmogrified into the administrative State. Its omnipresent bureaucracy is overburdened and crushes the individual, hardly understanding her plight.

It, therefore, falls on the third organ of State, the judiciary, to shield the individual from a legislator and an administrator who have grown too big.

Constitutional justice is legitimate because a rigid separation of powers is not in the citizen’s best interest. When powers are rigidly separated, the judge’s action is confined to ‘private’ disputes, leading to a lesser degree of restraint on the legislative and the executive. But in a system of checks and balances, where the judiciary has the final say on its review of the other two branches, the State ends up with three strong organs and the individual’s liberties are better protected.

Through constitutional justice, the judiciary has a law-making role. By having the final say on the constitutionality of a law, the Constitutional Court ‘abrogates’ laws and guarantees respect for the Constitution. We all know what happened in the 20th century, when European parliaments were hijacked by oppressive regimes.

It is intrinsic to constitutionalism that the Constitutional Court should rein in the other two organs of the State on behalf of the citizen (who is ultimately the only legitimate source of sovereignty).

Declarations of rights cease being mere philosophical proclamations the moment their effective application is guaranteed by an organ that is independent of political power and can curb abuses committed by the legislative and the executive.

Is judicial law-making undemocratic? In theory yes, as Lord Devlin once argued. But, in reality, the system of checks and balances works both ways and the legislative is always in a position to remedy any ‘wrong’ decision taken by the judiciary.

Furthermore, the court is bound to listen to two parties (the individual and the representative of the State) in concrete, quotidian cases and controversies.

Unlike the legislative, the judiciary rarely embarks on that abstract, ideological thinking which is perhaps the real path leading away from democracy.

The court’s law-making activity is a long, gradual process of experimentation, giving it the advantage of analysing fact situations and weighing solutions. This method is fundamentally dissimilar to that of the legislative, which has to wear the robe of the prophet and foresee as many scenarios as possible (usually failing).

At this juncture, it might be useful to refer to the situation in Italy. There, when the Constitutional Court rejects a request to declare a law unconstitutional, the decision binds inter partes. (obviously, to allow others to come forward with the same request based on different reasoning). When the court accedes to such a request, the decision binds erga omnes and ex tunc. Perhaps, Malta would benefit from a provision providing for this principle.

Which leads me, once again, to the consideration that Malta needs to evolve and have a new Constitution (to use Kevin Aquilina’s phraseology) “written by the Maltese for the Maltese”.

Once again, therefore, I applaud the Prime Minister’s pledge to create a Second Republic.

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