The Constitutional Court recently heard a case going back to 2010 when the Attorney General had ordered that two men on drugs charges should face trial by jury in the Criminal Court.

The presiding judge, Madam Justice Lorraine Schembri Orland, ruled that the unfettered discretion enjoyed by the Attorney General in deciding whether a person was to face trial by jury or in the Magistrates’ Court could lead to a breach of the right to a fair hearing.

The two men who took their case to Madam Justice Schembri Orland had claimed that unfettered discretion given to the Attorney General, their prosecutor, to commit them for trial in the Criminal Court or before a magistrate could lead to a violation of their human rights and their right to a fair hearing.

The European Court of Human Rights had already ruled in another case against Malta that this discretion is in violation of the right to a fair hearing since the discretionary powers vested in the Attorney General meant the prosecution had the sole right to decide the minimum penalty applicable to the offence.

The government had failed to address the issues raised as a result of the earlier European Court of Human Rights judgment and this had led to a spate of litigation which created an additional and unnecessary burden on the public purse.

Moreover, the judge ordered that copies of her judgment should be inserted in the criminal proceedings and invited the Criminal Court to take note of the judgment in deciding the application of punishment in the event of the two men being found guilty.

Not for the first time, there appears to be a dysfunctional gap in the administration of justice between the executive and the judiciary which is neither healthy for democracy, nor fair and equitable to citizens. If, as Madam Justice Schembri Orland has pointed out, the European Court of Human Rights has already ruled on the powers of the Attorney General, why does it remain unresolved, thus leading to further injustices and additional costs to the taxpayer?

As former European Court of Human Rights judge Giovanni Bonello had forcefully pointed out at the last President’s Forum in 2013, there appears to be a long-standing dichotomy between rulings of the Constitutional Court and Parliament. The Constitution is the supreme law but there were cases where the Constitutional Court (acting in line with a judgment already delivered by the European Court of Human Rights) had declared a particular law wrong or anti-constitutional but that law remained in force until Parliament decided to move the necessary amendments. In Bonello’s considered view, this meant that the supremacy of the Constitution was being ignored.

The supremacy of the Constitution means that the constitutionality of laws is the foremost value of governance. But this is being undermined if laws declared to be unconstitutional by the Constitutional Court remain enforceable so long as Parliament fails to amend them. In practice, Parliament has been allowed to arrogate to itself the final say as to whether those laws declared void by the Constitutional Court should still remain valid and binding, or should be repealed.

In the interests of good constitutional and parliamentary practice, as well as those of fairness and justice, it is time that the government should act to do away with these serious anomalies in the administration of justice.

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