The Law Courts in Valletta: “A more crooked reasoning by the constitutional courts to prove the minister right would be hard to find anywhere outside the contortionists’ annual gala convention.”No, I don’t expect you to believe these stories. For all it’s worth, I guarantee they’re true and accurate.
Our judges have, not infrequently, shown more tender affection for preposterous legal fictions than for those human rights the courts are there to defend and enforce. A legal fiction is defined as “an assumption that, purely for legal purposes, is deemed to be true, even though it is untrue or unproven”.
Out of several, I will pick up the Misrahi and the Ferro cases. Mr Edward Ferro had his house requisitioned by the housing authorities (the housing minister wanted it for his canvasser) and Mr Ferro was forcibly evicted. The authorities, incidentally, never even bothered to serve the requisition order on him. Mr Ferro sued in court to challenge the constitutionality of the requisition and the eviction: the Constitution upholds the right of people to be protected against entry by others in their property, doesn’t it? Poor deluded Mr Ferro – he had no idea what he was up against.
A more crooked reasoning by the constitutional courts to prove the minister right would be hard to find anywhere outside the contortionists’ annual gala convention. The honourable court commiserated with Mr Ferro – not because he had been thrown out in the street, but because he was hallucinating. He thought he had been evicted from his own premises? Didn’t he know that once the Housing Secretary issues a requisition order, those premises become the government’s? So, the government was evicting Mr Ferro from government’s possessions, not from his own home, dumbo. Three cheers for the minister, and bully for his canvasser, chanted the constitutional defender of the downtrodden.
That Mr Ferro was, in fact and in substance, dispossessed of his home and thrown in the middle of the road was deemed to be an irrelevant diversion. What the court made itself believe was that it was the Housing Secretary’s home that was being evicted, not Mr Ferro’s, because, by a legal fiction, a requisition order dispossesses the owner of his possession. And constitutional courts are there to cosy up to legal fictions which fortify the arrogance of power, not to shield the powerless from that arrogance.
On appeal to the Constitutional Court, Mr Ferro fell from the fridge into the blast freezer. That court, to no one’s surprise, confirmed that cesspit judgment. Any resemblance to justice is purely coincidental, and is sincerely regretted. In the constitutional court, injustice had by now reached baroque extravagance.
Leone Misrahi, who lived in premises in Valletta, was away from Malta for a significant period of time. During his absence, the owner wanted Mr Misrahi’s place back and sued for his eviction. As the occupier was away, the owner requested the courts to appoint ‘curators for absentees’. The curator never got in touch with Mr Misrahi, who remained completely unaware that there were any legal proceedings ongoing for his eviction. When he returned to Malta he found the court case over and wrapped up, and that he had been forcibly thrown out, with no one having had the minor courtesy of murmuring anything to him about it.
Another deluded victim. Mr Misrahi believed that his right to a ‘fair hearing’ in the lawsuit against him had been violated. He had not had a fair hearing – in fact, he had had no hearing at all; he had been, throughout the eviction proceedings, totally unaware of the existence of that lawsuit against him. What, retorted a shocked constitutional court: there was a curator, paid for by your opponent, appointed at the request of your opponent, to facilitate your opponent’s grab – and you’re thankless enough to complain?
The curator knew of the case; then, by a legal fiction, you know about it too – whether you do or not, period. Even though all the evidence proved that everything had been done completely behind Mr Misrahi’s back and without his knowledge. A legal fiction trumps human rights once again. The constitutional courts are there to copulate with legal fictions and forget all about substantive human rights. To call these judgments shameful demeans the meaning of shameful. You thought you had taken your case to the Constitutional Court, when actually it was Fawlty Towers. With lavish layerings of spinelessness and malice.
When judges can fall helplessly in love with legal fictions, why should they soil their hands with human rights?
You thought you had taken your case to the Constitutional Court, when actually it was Fawlty Towers. With lavish layerings of spinelessness and malice
The same with conflicts between the two languages in which laws are enacted. Laws in Malta have, for many years, been issued in bi-lingual versions. Up to 1936, the Government Gazette published them in parallel texts, in Italian and English, and, according to the 1921 self-government Constitution, both texts were equally authoritative and authentic.
Then, in 1936, the colonial administration booted Italian out of the law courts and out of the law books, and new laws started being published in English and Maltese. The 1936 Constitution ordained that in case of conflict between the English and the Maltese text, the English text was to prevail. This was repeated in the 1947 Constitution.
But then, Article 74 in the 1964 Independence Constitution reversed the position: “If there is any conflict between the Maltese and the English texts of any law, the Maltese text shall prevail.”
The Independence Constitution looked clear enough – the Maltese text “of any law” is to prevail. It meant that, as from 1964, the authentic text was to be the Maltese one, for all laws, whether enacted before Independence or enacted after Independence.
Sometimes the differences between the English and the Maltese texts of laws in Malta can be quite substantial: the Maltese text favours one litigant, while the English text favours his opponent. On which of the two texts the court relies will be determining as to whether the plaintiff or the defendant wins.
In 1974, the Court of Appeal in an elaborate judgment seemingly settled this issue. Diss v. Agius Ferrante ruled that, differently from what the Independence Constitution expressly provided, if the law was enacted before the Independence Constitution of 1964, the English text was to prevail. For laws passed after 1964, the Maltese-language text was to apply. In the Diss case, the law to be applied was a post-Independence statute, so the Maltese text was applicable. The Maltese text favoured the claims of the government, and government won the case.
Was this the end of the story? Not by a stretch. Only a year later, in 1975, in the Joseph Gauci case in which at issue was another conflict between the Maltese and the English texts, the Constitutional Court took it upon itself to clarify again whether, in laws enacted before Independence, the Courts should rely on the English or the Maltese texts. The Court gave its Solomonic verdict: in pre-Independence laws, the English text prevailed, in post-Independence laws, the Maltese text prevailed.
It so happened that in this case, the law to be applied was a pre-Independence law, so the English version was the dominant one – although the Constitution clearly mandated the opposite. It also happened that the English text favoured the government while the Maltese text favoured the individual. The court breached the Constitution and applied the English version – and, lo and behold, the government won the case.
So some consistency at last? Don’t be absurd. In 1980, in the Dunkin case, the Court was faced with another conflict between the English and Maltese texts of the Civil Code, enacted long before Independence. Clear, no? All the authority cascading from previous judgments favoured the English text over the Maltese one.
But now the court faced a wrenching dilemma: this time round it was the Maltese text that favoured the government, and applying the English text would have shot down the government’s case. No problem. The amnesia cavalry gallops to the rescue, to the rousing music of the Valkyrie. Let’s just forget what the two highest courts of the land had just established, shall we? Which text favours the government? Simple, we apply that. There was a further 180 degrees cartwheel, and, what an explosive surprise, the third victory in line for the government.
There is a strong prejudice in our constitutional courts against confusion. Only chaos will do.
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.