Along the years the Constitutional Court has developed its power to grant redress to people whose human rights have been breached. It developed its remedial powers by a proper interpretation of the Constitution, which in a very general way grants the court, in human rights cases, the right to make such orders, give such directions and issue such writs as it may deem fit to guarantee the enforcement of human rights.
For decades, the granting of moral or symbolic damages for human rights violations was repeatedly rejected by the Maltese courts. They blindly applied the civil law notion of damages in tort, which exclude such non-material, or as they are formally called, non pecuniary damages. Until, in the early 1990s, the Constitutional Court accepted the argument, ably put forward by Dr Giovanni Bonello in the Students case, that a court applying public law should not be bound by restrictions and norms found in civil law.
From then on, when a court of law finds that any human right has been infringed, it invariably awards some kind of financial compensation, depending on a number of factors, such as the gravity of the breach, the condition of the applicants and the psychological and material consequences for them resulting from such breach. The wide discretion given to the court in granting a remedy is reflected in its case law. In 1977, Judge Curran Curran, a veritable champion of human rights and freedoms, declared obiter that such powers would include the ordering of a re-trial in criminal cases should a breach of the right to a fair hearing be found.
The most spectacular example, however, is the recent landmark judgment relating to the extra seats granted to the Opposition following the pronouncement by the Constitutional Court that an error committed by the Electoral Commission in the counting process had deprived it of two parliamentary seats. It also directed that such seats should be filled through a co-option procedure.
It therefore spontaneously, without searching for any empowering statute except the general remedial power found in the Constitution, created a remedy and laid down the details of how it should be applied.
The only area where, in my view, the Constitutional Court is depriving an aggrieved person of a proper remedy is when an applicant seeks recourse before the European Court of Human Rights and judgment is delivered in his favour. Seeking redress in Strasbourg implies that the applicants have lost their case before the Constitutional Court in Malta. Obtaining a favourable judgment before the European Court the means that the judgment of the Constitutional Court is overturned.
Having won the prize in Strasbourg, they face indifference in Malta and the prospect of protracted litigation to get what is rightly theirs
When in 1987, the new government led by Eddie Fenech Adami passed Act No. XIV of 1987, the European Convention Act, it introduced Section 6, which allows a successful applicant before the European Court to enforce the judgment in Malta through an application before the Maltese Constitutional Court. This created the interesting situation of a successful applicant, presumably with a grin on his or her face, seeking to enforce a judgment of an international court before a court whose judgment had been overturned abroad.
The reason for including this enforcement procedure is that in its judgments the European Court never annuls any law or measure of a member State. It merely states that a breach has been found, full stop, usually followed by the awarding of non-pecuniary damages. The introduction of Section 6 in the European Convention Act was intended to give flesh locally to the dry bones of the European Court judgment; for example, releasing someone from prison, reinstating a dismissed government employee, stopping or enforcing an eviction order from premises, and the granting of proper and adequate compensation in cases of compulsory acquisition by the State of private property.
Instead, the Constitutional Court has stubbornly refused to give any constructive and liberal interpretation to this provision. It has merely stated that it will strictly apply what appears in black and white in the European Court judgment, and nothing else.
This is a cynical attitude to say the least, for any human rights lawyer knows that the European Court does not grant specific remedies. The legislator in 1987 wanted the Constitutional Court to have the power to grant an effective and concrete remedy in implementing and enforcing in Malta the judgment delivered in Strasbourg, if need be by declaring laws invalid, repealing measures and granting financial compensation.
Instead, as the law is being wrongly interpreted by the court, applicants have to start all over again in Malta to be granted a specific remedy following years spent in court, in Malta and abroad. Having won the prize in Strasbourg, they face indifference in Malta and the prospect of protracted litigation to get what is rightly theirs – namely an adequate remedy.
This state of affairs may be easily changed by a bold decision of the court interpreting Section 6 as granting it extensive powers, as it has locally in constitutional cases. An applicant who wins a case in Malta and another who obtains a favourable judgment in Strasbourg should be treated on an equal basis. The current state of affairs is a negation of justice and should be remedied as soon as possible.