Over the past weeks there have appeared in this newspaper a number of articles written by Judge Giovanni Bonello, that eminent judge of the European Court of Strasbourg and bulwark of fundamental human rights in Malta over the past six decades, both during the period of his practice as a lawyer and as judge of international repute.
The articles have appeared under a thought-provoking title characteristic of Judge Bonello’s pen, namely on “misunderstanding the Constitution”.
He demonstrates through these articles how a tight and literal interpretation of the letter of the Constitution, particularly on the law of court procedures, is exposing the individual to the effective denial of constitutional protections belonging to each and every one us.
Reading through Bonello’s articles, many instances came flooding to my mind of important areas of our Constitution rendered ineffectual through a zealous attention to the literal meaning of the law to the face of the common sense of democracy which should imbue every reading of our supreme law.
In fact, the malaise noted by the judge is negatively affecting none other than the very supremacy of our supreme law. The supremacy of the Constitution, from a matter of common sense of democracy, has now been transformed into a technical issue to be debated in the rarefied strata of the legal and court fora.
Today, a declaration by the Constitutional Court of Malta that a law is unconstitutional has been interpreted to mean that this same law will remain in our statute book until and unless the people who originally passed that law, namely the legislators, decide themselves to remove it from the statute book.
Does this stand up to our common sense of democracy?
As in any common human endeavour, the building of a nation and its transformation into a State requires a common understanding of the basic principles shared by all, which the State is bound to work for and to achieve.
The common sharing of principles creates a national unity of purpose.
The first and most basic decision revolves around the common understanding of whether the nation wants a democratic State or not. When the Maltese nation opted for statehood it also opted for democracy as its system of government. The Constitution is built on our common sense of democracy, and all law and all authorities must fall in line with what the nation commonly understands the workings of our democracy should be. All law and all authorities are therefore under the Constitution.
This also explains why the Constitution in fact defines itself as the Supreme Law of Malta, and why “any other law” that is inconsistent with it is null and therefore not law.
This is as it should be. The supremacy of the Constitution is our common sense of democracy in action. Is there the need to answer the question of what happens if a law stood in the way of our common sense of democracy?
The danger, of course, lies in the dilution of the very supremacy of the Constitution itself. If the Constitution is now to be considered on the par of “any other law” then it is no longer supreme law. It is no longer a supreme law that puts our common sense of democracy above the technique of the law.
The Constitution is built on our common sense of democracy and all law and all authorities must fall in line with what the nation commonly understands the workings of our democracy should be
The very notion of constitutionalism means limiting the actions of government and of Parliament, even if the latter act in terms of the law but against the Constitution and the common sense of democracy which it incarnates.
That a law which is declared unconstitutional should no longer remain on the statute book was established as early as 1803 through the famous landmark decision of Marbury vs Madison by the American Supreme Court. The judgment is internationally recognised as the birth of constitutionalism.
In the words of the Supreme Court: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
“Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it.
“If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.”
The Supreme Court passed on to deal directly with the effect that a declaration of unconstitutionality has on the offending law:
“If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.”
The court continued to elaborate much further on the issue but the indulgence of the editor of this newspaper has already been stretched enough! Suffice it to say that what to the creators of constitutionalism was “a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it” would in Malta still be refuted.
Austin Bencini is a senior lecturer in public law at the University of Malta, and a constitutional lawyer. His Ph.D thesis was on ‘The Supremacy of the Constitution of Malta’.