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Living the law

Tonio Borg:
A Commentary on the Constitution of Malta.
Kite Group, 2016.

Tonio Borg’s A Commentary on the Constitution of Malta is the most detailed book published so far on the Constitution of Malta as it comments, section by section, upon the constitution’s provisions.

The approach that Borg has adopted differs from that used by other authors ranging from J.J. Cremona to David Attard. In his volume, Cremona studies the Constitution primarily from a historical perspective. On the other hand, Attard’s monograph is more interested in disseminating knowledge of Constitutional Law to the ordinary reader.

These are the pluses of Cremona’s and Attard’s works. Borg, however, adopts a different, and unique, style. His monograph, on the lines of the Indian author Burga Das Basu, provides the reader with a commentary on each and every single provision of the constitution, rather than having recourse to a thematic approach. Both approaches are academically valid.

That adopted by Borg, undoubtedly, complements previous written works and is not a duplication of what has already been published in the realm of constitutional and human rights law.

The textual commentary is prefaced with a discussion, in brief, of the historical development of Maltese Constitutional Law, its sources and main doctrines which pervade it such as those of separation of powers, rule of law, etc. Indeed,  Borg did well not to dwell on such aspects of constitutional law at great depth once the books of Cremona, Attard and others are quite exhaustive on these aspects.

Borg does bring a new dimension to the study of the Constitution of Malta in this book. He has lived the constitution on which he is commenting upon. He has served as Minister, Deputy Prime Minister, Acting Prime Minister, Leader of the House, Deputy Leader of the Nationalist Party, Member of Parliament, member of the Nationalist Party Parliamentary Group, lawyer in private practice engaged in human rights litigation and, later, as EU Commissioner.

Parallel to all these public offices he has held during his successful political career, Borg has also been a visiting senior lecturer at the Faculty of Laws of the University of Malta, where he has been lecturing, since 1989, constitutional law and human rights law.

Thus, this commentary benefits from both his academic grounding in the law, his past exercise of the profession of advocate and his experience in the two organs of the state – the legislature and the executive – which play a pivotal role in all constitution making.

A landmark feature which this volume exhibits is that it is very much case law driven

In this monograph, therefore, he has brilliantly managed to bring together in a harmonious way all these aspects in which he has excelled to the benefit of the reader of his work.

A landmark feature which this volume exhibits is that it is very much case law driven. Borg does not simply comment on the constitution’s provisions through his reflections, readings and direct experience in the field, but refers constantly and incessantly to every single decided case related to the provision he is commenting upon.

His work has ample reference to decisions of the Judicial Committee of the Privy Council, the European Commission of Human Rights, the European Court of Human Rights, foreign courts and national courts.

Needless to say, great emphasis is placed on the jurisprudential activity of Maltese courts – in particular the Constitutional Court – in relation to the constitution’s interpretation. Yet, although the book is titled A Commentary on the Constitution of Malta, the monograph is replete with references to Maltese legislation in general and Maltese constitutional law in particular.

For, not all of Maltese constitutional law is contained in the Constitution. Borg, indeed, dispels such a thought by thorough reference to a multiplicity of ordinary primary constitutional laws which supplement the provisions of the Constitution of Malta.

The Maltese legal system is a unique legal system. It is not a carbon copy of the civil law tradition or the common law family. Since independence, it has evolved in its own right. Although the civil law and common law legal families exercise to this day an important influence on the Maltese legal system, our legal system remains a hybrid legal system.

It is no longer a pure breed of civil law, as it used to be in the past before the advent of the British in Malta in 1800. The British managed to change our legal culture from a civil law culture to one which is more inspired by English public law.

Since 2004, a new system now has entered into the fold of our mixed legal system – European Union Law. Yet, notwithstanding these three great legal traditions, Maltese Law has also moved on and developed its own nuance to law making. Constitutional law is no exception.

Borg refers not only to the English sources of the Constitution of Malta but even to other sources as well such as the American and civil law which, in their way, have influenced the Maltese Constitution.

At one point he refers to the notion of juridical interest, which is enshrined in the Constitution. Nonetheless, this institute derives from the civil law family, not from common law. Needless to say, being a mixed legal system, tensions do arise amongst the diverse sources of Maltese Constitutional Law.

At times, these tensions are well managed by the legislator and, when called upon to interpret the Constitution’s provisions, by the courts. Nevertheless, there have been instances where it is clear in my mind that the civil law system has not been well grafted upon what is eminently a common law instrument – the Constitution of Malta.

Indeed, there are a number of departures in the Constitution of Malta from British public law, as Borg correctly points out in his writing, such as that British constitutional conventions are embodied in the written constitution. Or, that while parliament is sovereign in the UK, the position in Malta is that parliament, as a creature of a written constitution, has to comply with the constitution itself.

In fact, although parliament might be that organ of government which wields most power in the republic, its powers are checked and balanced by the other organs of the state, notably the courts, which have the power to declare null and void unconstitutional laws. Yet, the very DNA of the Constitution of Malta remains British.

In the past few years, the students reading law at the Faculty of Laws have been regaled with several publications of a legal nature. This has made the study of the law more appealing as students do not need to rely solely on foreign books to learn the law in the absence of local legal literature.

Of course, foreign publications remain indispensable to the study of law, especially for comparatists. But the flavour, which local publications like those of Borg, provide are illustrative of how the Constitution of Malta is lived in daily life.

Sometimes, it is one thing to read the law. At other times it is a totally different matter to see how the law is applied and, more importantly, interpreted. It is these applications and inter-pretations which, in turn, bring about change.

Change can be, indeed, dictated by past experience. Provided that this is a learning experience which is made to good use, then the end result would be a more refined, relevant and effective law. Borg has indeed indicated instances in this monograph why, on the basis of past episodes, the law was not serving society well and needed updating.

I end by commending Borg for his painstaking efforts in authoring this monograph which, I augur, will serve to generate more writings in the realm of constitutional law and to entice academics to share their knowledge with us. In this way all Maltese society would benefit.

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