Section 116 of the Constitution provides for the so-called actio popularis (the people’s action) which reads as follows: a right of action for a declaration that any law is invalid on any grounds other than inconsistency with the provisions of articles 33 to 45 of this Constitution shall appertain to all persons without distinction and a person bringing such an action shall not be required to show any personal interest in support of his action.
There is an interesting point which needs to be uncovered in this provision: what is meant by the word ‘law’. What follows is not an academic exercise, but one vital to the constitutional workings of a democracy. The Constitution allows ‘all persons’ to challenge whether a ‘law’ is constitutional or not, independently of whether those persons have a personal interest in challenging that law, or not.
The Constitution wants to ensure that this right to challenge illegalities is made easily available to all. If ‘law’ only means written law, then rogue governments can act in violation of the Constitution, using all other measures or activity, other than written laws – and virtually no one will be able to challenge those measures or activities.
The term ’law’ is defined in section 124(1) of the Constitution as “any instrument having the force of law”. Law need not be only legislation though, undoubtedly, legislation plays an important role. The Constitution gives, in the definition of the expression “Act of Parliament” an example of a law. Thus, what is surely a law is an Act of Parliament. But is it only such an Act of Parliament which is uniquely a law? Of course this is not so.
Legislation comes in different types. It takes the form of primary, secondary and tertiary legislation. In so far as primary law is concerned, the practice has been, since independence, for Parliament to enact primary laws in the form of Acts of Parliament though there are still on the statute book pre-independence laws in the forms of codes and ordinances. Primary legislation comes in four forms: the Constitution (which in fact is a United Kingdom law); Acts of Parliament; codes; and ordinances.
To have the force of law the instrument must be binding. Otherwise it would end up to be more of a rule of morality, ethics, etiquette, comity or courtesy
Subsidiary legislation – like primary legislation – also comes in different forms. These are listed, though not defined, in section 7 of the Interpretation Act (Chapter 249 of the Laws of Malta) as follows: regulations, rules, orders, bye-laws, warrants, schemes, notices and other instruments. Although the Interpretation Act does not list nor define the category ‘other instruments’ having the force of law, presidential proclamations and resolutions of the House of Representatives are examples of other instruments having such force. So would be any other written document which is binding upon the person to whom it is directed.
Thus a will or a deed, a power of attorney and a private writing, in the private law field, are instruments having the force of law. In the public law sphere there are other instruments which have the force of law as well such as a letter of appointment, promotion, or removal or any other government action or measure which is authorised by law.
To have the force of law the instrument must be binding. Otherwise it would not be an instrument having the force of law but ends up to be more of a rule of morality, ethics, etiquette, comity or courtesy.
Tertiary legislation is of the same type as secondary legislation.
Law does not however include only legislation. There is both written and unwritten law: the latter has a binding effect and is so recognised by Maltese written law. Such is the case of a custom in the Civil Code or a usage of trade in the Commercial Code or an international custom in public international law.
Yet, although these customs and usages remain unwritten, the written law recognises that they are binding and, hence, have the force of law. The same can be said for equity. Therefore the expression ‘law’ in article 116 cannot be interpreted simply to mean ‘legislation’ because the literal meaning (“any instrument having the force of law”) does not restrict that instrument to be of a legislative nature.
There are also certain practices which are followed by the public administration and though unwritten or not contained in a legislative instrument are considered to be binding. Take the case of an administrative circular issued say by the Commissioner of Inland Revenue where he sets out in a certain way the interpretation of an unclear legislative provision.
The administrative circular here is the “instrument having the force of law” and if the said commissioner were to interpret it differently on one occasion as distinct from the rest of the other occasions, then in that sole case the interpretation does not comply with his own instrument having the force of law.
If one were to interpret the expression ‘law’ in article 116 of the Constitution so as to refer to ‘legislation’ only, then it means that any government measure or policy which runs counter to the Constitution cannot ever be challenged in court on a non-human rights basis. That would make a mockery out of the Constitution and would induce government to govern through administrative policies so as to circumvent the constitutional provision.
But if the term ‘law’ is interpreted in the sense of “any instrument having the force of law”, that would enable any person to challenge an unconstitutional measure.
What is to be noted is that when the expression ‘law’ is defined in article 124(1) of the Constitution, the exact wording used is the follows: “‘law’ includes any instrument having the force of law and any unwritten law.” Thus if this definition were to be dissected, law comprises both written law and unwritten law and that in so far as the definition goes the Constitution is not excluding the application of the term only to legislation once it refers as well to unwritten law.
This could not have been otherwise bearing in mind that the Constitution has as its source the common law and the latter also includes instances of written law (as continental law does after all following the Roman ius civile in the form of, for example, custom and usages of trade).
Legislation falls under the definition of law as the expression “Act of Parliament” is defined to mean “any law made by Parliament”. However, an Act of Parliament is only one example of a primary act made by Parliament. Furthermore, articles 6 and 7 of the Interpretation Act refer to the exercise of certain powers which, when exercised, are binding and have the force of law. Article 7 for instance refers to the “power to make any appointment”.
Therefore, ‘law’ in article 116 of the Constitution does not restrict itself to legislation but to any instrument having the force of law and applies also to written law. Should the government adopt a policy or take a decision in terms of a law which runs counter to the Constitution then that government policy or decision can be challenged before the courts of constitutional jurisdiction. To state otherwise would simply be in manifest breach of a literal and clear interpretation of the constitutional provision.
Kevin Aquilina is the dean of the Faculty of Laws at the University of Malta.