A recent judgement found a violation of human rights in a Maltese law that gives the prosecution the right to appeal when bail is granted but denies a right of appeal to the accused person when bail is refused. I expressed concerns about this finding in a previous contribution.
The court crafted a remedy in favour of the accused person, and to me this alleged remedy is as problematic as the alleged violation. The court ordered the government to ensure a change of the law within three months, and, in default, the law would be deemed changed (for the plaintiff only, or for everyone?), whether the law was amended or not.
This composite “remedy” seems to be consequent, at least partly, on the two dismal doctrines embraced by Parliament, with the complicity of the Constitutional Court, ever since 1964: that a declaration of nullity of a law made by a constitutional court has no effect on that law unless Parliament then repeals it. And that, anyway, a declaration of nullity of a law benefits the plaintiff alone and has no effect whatsoever on the validity of the law itself, which, although certified to be anti-constitutional, remains valid and enforceable. A law that is valid and invalid at the same time, the sheer luxury of ambivalence!
These two doctrines have made a mockery of the most fundamental value of democratic governance: the Supremacy of the Constitution. This “supremacy”, to mean anything at all, means simply one thing: that no law can exist that does not conform to the Constitution. It means that any law certified as being contrary to the Constitution is, by the very operation of that declaration, erased.
Diametrically opposite to the Supremacy of the Constitution is the Supremacy of Parliament, embraced by very few states in the whole democratic world. According to this system, totally alien to ours, courts have no say on the validity of laws, and only Parliament repeals them. Despite the extremely clear dictates of its Constitution, Malta has done what it often does: it has taken the worse from both systems.
Though Malta bellows its allegiance to the supremacy of the Constitution, its Constitutional Court has embraced those doctrines most lethal to this supremacy: it endorses the legal heresy that anti-constitutional laws are just as valid and enforceable as constitutional laws are. It also accepts that an anti-constitutional law is unconstitutional with regards to Mr X, but is then perfectly constitutional and enforceable in so far as everyone else in the universe is concerned.
No one, I repeat, no one has so far identified the legal basis for this fiendish assault on primal constitutional principles. Look for it in those constitutional judgements that have massacred the Supremacy of the Constitution, and you will find none. And can never ever find any. The fundamental law, in fact, ordains the exact opposite: that the Constitution is the supreme law, and that any law inconsistent with the Constitution is void – period. No mention anywhere of a law being void only if and when Parliament is in an affable mood and concurs.
According to our Constitutional Court, an unconstitutional law only loses its validity if Parliament agrees and finds the time and the right disposition to repeal it. No! An unconstitutional law is the greatest infamy against the Supremacy of the Constitution – and yet laws officially certified by constitutional courts to be assaults on the integrity of the Constitution are then recognized as enforceable by the very constitutional courts that had established their delinquency against the Constitution.
Laws branded many years ago as invalid because of their radical unconstitutionality, still continue to be applied, because, ħeqq, Parliament has done nothing about it. To such farcical pits has the Supremacy of the Constitution been reduced. Malta is, I believe, the only state in the world where the courts enforce laws they themselves have certified to be invalid and in violation of the Constitution.
Our Constitution has specifically entrusted the Constitutional Court with the supreme function of determining which laws respect the Constitution and which laws do not. Once a law has been found to sabotage the Constitution, it is erased by virtue of that declaration of unconstitutionality, and not by virtue of any vote of sympathy by Parliament, which sometimes follows, and quite often does not. Constitutional courts neither beg nor threaten Parliament to, please, repeal laws which offend the Constitution. But in Malta they do.
I have recently worked on an extensive analysis of how Parliament and the Constitutional Court have combined forces to abort the Supremacy of the Constitution, and how proudly they advertise their achievement. Some day it may see the light. Whether the Constitutional Court will is another matter.
Judge Bonello sat on the European Court of Human Rights from 1998 to 2010.