I totally disagree with Kevin Aquilina’s legal analysis of the Nationalist Party parliamentary seats case (June 17), currently pending before the Constitutional Court. Indeed, the only thing which baffles me is that three years down the line we are still debating whether the Opposition party should have two extra parliamentary seats.There is no dispute about the facts. A blunder made by the Electoral Commission has deprived the Opposition party of two parliamentary seats. Even the commission admits this.

I always thought that where there is a right there is a remedy. Ibi ius ibi rimedium and yet legal pundits seem to want to deny the inevitable: an error has caused damage, that damage has to be repaired and a remedy provided for.

My friend and colleague Aquilina raised the issue of when the European Convention provides a right or a remedy which is additional to, or indeed in conflict with, a provision of the Constitution.

He argues that the provisions of the European Convention do not prevail over the special provisions contained in the Constitution, relating to challenges concerning issues of membership of the House of Representatives.

The Nationalist Party case was not based on any provision of the Constitution but on the right to fair and free elections found in the European Convention

In this respect he criticises the two judgments of the Civil Court in its constitutional jurisdiction in the Nationalist Party parliamentary seats case, which have confirmed that the Convention can grant additional rights not contained in the Constitution, more but not less. The judgments followed a string of others, which have declared that in Malta we enjoy a parallel protection: that is, both that emanating from the Constitution and that provided for in the European Convention. In case of divergence, one always applies the provision most favourable to the individual.

I vividly remember being shown the first draft in 1987 of the European Convention Act, prepared by Giovanni Bonello. He astutely observed that the Constitution expressly allows Parliament to grant the Constitutional Court additional powers relating to jurisdiction. He therefore included in the Bill – the first legislation to be passed by the newly elected Nationalist government – the power to decide cases relating to the European Convention.

The argument put forward was a pragmatic one: if the individual can refer a case to the European Court in Strasbourg one might as well grant such right to invoke the protection of the Convention before the Maltese courts. Secondly, by granting such additional jurisdiction to the Maltese Constitutional Court one would avoid, in human rights cases, having the applicant file two cases, one under the Constitution, the other under the Convention: it was a sort of one-stop-shop in human rights litigation.

This parallel protection was affirmed by the Constitutional Court in 1989 in the Pullicino case. In that case an express provision of the Criminal Code prohibited, absolutely and irrespective of circumstances, the granting of bail to persons charged with murder. The Constitution at that time provided that anything contained in the Criminal Code enjoyed an ironclad immunity from the human rights provisions of the Constitution.

The applicant in that case successfully challenged this draconian provision as being in conflict with the Convention, even though the supreme law of the land granted immunity of such provision from any constitutional challenge. The constitutional provision applied the wider protection afforded by the Convention, ignoring the immunity contained inthe Constitution.

The same principle was affirmed in numerous cases successfully, challenging expropriation orders issued by government under the Land Acquisition (Public Purpose) Ordinance 1935. According to an express provision of the Constitution, which still exists today, no pre-1962 law or anything done thereunder, can be deemed to be in violation of the right to property under the Constitution.

In spite of this vast and far-reaching immunity, contained in the supreme law of the land, the Constitutional Court has allowed owners to challenge expropriation orders under the European Convention (art. 1 Protocol I) because the compensation offered was in breach of the principle of proportionality established by the jurisprudence of the European Court. Indeed, the Constitution does not allow owners, deprived of their property against their will by the State, to challenge such deprivation as not being made in the public interest. The Convention does.

The Constitutional Court has rightly applied the wider protection principle and applied the provisions of the Convention to “prevail” over the constitutional provisions because they added to, not subtracted from, the rights mentioned in the Constitution. If one were to apply the argument put forward by Aquilina that the Convention can never grant rights not envisaged in, or in conflict with the Constitution, all the dispossessed owners who, for decades, have been clamouring for justice to be applied in their regard, would end up without a remedy.

The Nationalist Party case was not based on any provision of the Constitution but on the right to fair and free elections found in Protocol I to the Convention. Since such right is additional to the provisions found in the Constitution, and in no way grants a lesser protection to the individual against the State, the court applied the provisions of the Convention: and thank God it did.

Finally, I fail to understand the relevance of the Privy Council judgment back in the 1930s whereby it declined to exercise jurisdiction in electoral cases decided by the Maltese Court of Appeal. The Privy Council then was a Supreme Court hearing appeals on all matters from British colonies. There was a limited right of appeal, and this did not include electoral cases.

In the case of the European Court, which is an international institution and not a British one as the Privy Council, it has the right to hear cases on human rights, irrespective of the provisions of the constitutions of the member states of the Council of Europe. In the case of the Maltese Constitutional Court , this power granted by law and the Constitution to apply human rights over and above its jurisdiction relating to electoral matters is complementary, and not in opposition to, its powers under the Constitution.

Errors will be committed in the future in the long and complicated process of vote counting in general elections. Deciding that such errors, if not immediately corrected by the Electoral Commission, entitles the injured party to seek recourse before the Constitutional Court, will protect the rights of any political party to access a remedy when blunders deprive it of seats to which it is entitled according to the Constitution.

Tonio Borg is a former deputy prime minister, cabinet member and European commissioner.

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