David J. Attard: The Maltese Legalsystem, Vol. II,Part A.
The Malta University Press, 2015.
pp. xxxii + 422

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I salute the first textbook that engages with the very structure and workings of the fundamental laws of Malta. Whatever happens in this republic, or fails to happen, is good or bad in so far as it conforms with, or defeats, what is mandated by the Constitution. The Constitution is the template of good governance, a supreme ethical manual that is backed by the robust force of ultimate law.

A recent popular survey established that a substantial percentage of Maltese had no clue what the Constitution was about, or, better still, that a Constitution even existed. That’s terminal distress for you.

Attard does not target those who parade with rapture these dregs of catastrophic ignorance (bet they too have a vote). In tandem with a great team, Kevin Aquilina and Patricia Mallia, he aimed at those already exposed to the rudiments, but who are inquisitive or anxious for more: students, lawyers, professionals, the average man with the questing mind. Here is food for the gods.

I believe this to be the very first time a project of this breadth has been undertaken. A lot – though never enough – has been written about the Constitution and human rights law, and some of these studies attain the highest degrees of competence and depth. But a thorough, organic overview of the supreme law and of the human rights instruments, the practices and the case law surrounding them, was never attempted before.

Although Maltese constitutional and human rights law are not ancient disciplines, like civil and criminal law are, they have already spawned a vast and daunting corpus of doctrine. Little of it, if anything, has escaped the manic commitment of the compilers.

In their analysis of constitutional and human rights case law they have reproduced the standard views of the courts, and often the criticism and the variants, sometimes leaving it to the discerning reader to choose.

Outrageous judgments by our courts rub shoulders with some saner ones; the enlightened ones, with those servile or delirious enough to make you gag, the forward-looking next to the ossified props to a conservative, sometimes autocratic establishment. There is, in the case law section, something for everyone. Sadly, Maltese human rights jurisprudence often includes bonus prizes for the enemies of human rights.

In Malta the Constitutional Court has often been the worst enemy of the Constitution and of human rights

For the salvation of the republic, our Constitutional and human rights culture must, really must, return to the drawing board. So far we have failed, or refused, to understand what the supremacy of the Constitution means. Malta is about the only country in the whole democratic world where a law which the Constitutional Court has found to be in violation of the Constitution, remains valid and enforceable.

This constitutional abomination was not established by Parliament. It was inflicted by the Constitutional Court on itself and on the nation. The Constitutional Court has cheerfully reneged on the principal function cherished by all Constitutional Courts in the democratic world: that of ensuring that all laws are compatible with the Constitution, surrendering this fundamental right and duty to the good will or otherwise of the politicians.

And our human rights culture too cries for a revolutionary overhaul. The Maltese judgements in human rights cases are a mixed bag: a few well-grounded, and many unhinged ones which leave the citizenry in despair. It may not be politically correct to repeat it, but in Malta the Constitutional Court has often been the worst enemy of the Constitution and of human rights. We have broken all records in Europe in those human rights cases which have been examined and determined on the merits.

The Malta Constitutional Court flaunts the European record of having 85 per cent of its judgments thrashed by the European Court of Human Rights in Strasbourg. Right: 85 per cent of the output of our supreme court which fell under Strasbourg scrutiny has been dismissed there as human rights rubbish. No other supreme court in Europe comes even remotely near that infamous primacy.

All this shows the desperate need for Attard’s book – to write it, to read it and to live its elated message. It adopted a clinical approach, covering most, if not all, areas, many of them for the first time. And it has the wisdom of ages, and the critical insights of the authors and other commentators, very conveniently packeged together with the updated verbatim texts of the fundamental constitutional and human rights instruments, between two hard-covers.

To resort to a platitude, the Constitution is a living instrument, which evolves or limps with the passage of time, and the not-always-benevolent ministrations of its guardians. The present Constitution has served the people excellently; its guardians less.

Our journey to nationhood is the offspring of two Constitutional Conventions chaired by two giant elders who enjoyed the unqualified veneration of all in Malta, and the clout, integrity and goodwill to forge the unity of everyone across the board: Sir Filippo Sceberras and Sir Luigi Preziosi. If we are really embarking on a third Constitutional Convention, who will the next Sceberras and Preziosi be?