Acknowledging a violation of the law without granting a remedy is like watching someone thirst to death and walking away, lamenting ‘how sad’. Constitutional courts have just one function: to see that nothing unconstitutional survives in the national order. If they establish a breach of any provision of the Constitution, it is their responsibility to reverse that breach and restore the victims, as far as possible, to the full enjoyment of the rights the State had screwed them of.
Have the Maltese constitutional courts risen to their calling? Sometimes yes, often no. The subject of remedies for breaches of human rights or other constitutional violations has turned into a running sore which, together with many others, highlights the certificate of flawless impotence that our constitutional judiciary has often awarded itself.
Our Constitution was particularly generous in granting the courts virtually unlimited powers to redress violations of human rights. The trial court, it ordains, may do whatever “it considers appropriate for the purpose of enforcing, or securing the enforcement” of the enjoyment of fundamental human rights. Our courts have made the most timid use of the almighty powers vested in them, as if shy to be seen doing the only thing the Constitution expects them to. Why fluster the powerful unduly?
I will leave the greatest betrayal of all to a dedicated article: the power of constitutional courts to declare null those laws which violate the Constitution. Ours is the ONLY Constitutional Court in the whole of democratic Europe that has abdicated its principal function: to ensure that nothing unconstitutional exists or survives. Our Constitutional judges have renounced this power, leaving it to politicians to do it in their stead, but only if they feel like it, and don’t go out of your way, please.
According to our supreme law, constitutional judges have two separate responsibilities: the very first, to PREVENT the violation of human rights if “they are likely” to be breached; secondly, to grant REDRESS when human rights have actually been violated. I would say that their principal and ordinary function is to prevent the violation of human rights, rather than allow them to be violated, and later see if something can be done about it.
But no. Our courts very rarely exercise their prerogative to order interim measures to prevent the threatened violation of a human right. Better let the building fall and then see if it can be patched up, rather than prevent the building falling.
Preventing the violation of human rights is the ORDINARY function of the Constitutional Court. And yet, that Court has only recently stated that it will not halt a threatened breach of human rights, except when the evil threatened is “irreparable and imminent”, as prevention, they said, is an “exceptional measure”. Exceptional measure? Are we going totally delirious? PREVENTING the violation of human rights is the court’s normal, nay primary, function.
To remedy a breach of privacy, the court ordered that their public birth certificate should advertise to the whole wide world that, in its view, they were freaks of nature
How unlike the Strasbourg court! That court, differently from Maltese courts, only has the function of redressing human rights violations – after the violation has already occurred. But, in extreme cases, it will also go out of its way to PREVENT a threatened violation. Malta had a taste of this power: when the Strasbourg court ordered the Maltese government to halt immediately the threatened push-back of African immigrants.
Dark clouds loomed from the very outset on the ‘remedies’ front. One of the first human rights cases in Malta was about Mgr Philip Calleja holding peacefully a perfectly urbane poster critical of proposed legislation, during a tediously peaceful rally. A police inspector ordered him to remove it. When Mgr Calleja demurred, the inspector tore it up and hurled the scraps of opposition to his face.
Mgr Calleja sued for redress of this breach of his freedom of expression. A highly agitated judge wanted to know how much the poster cost. “What, you are wasting the court’s time for two cents?” he hissed indignantly. In his mega-enlightened view, the remedy would have been the payment of two cents; though, to be fair, probably with interest. But even that was too much to ask, because his actual judgment rooted for the State’s unbridled right to suppress freedom of expression.
A ‘remedy’ should address the violation, and adequately redress it. The Maltese courts have not been very consistent with this basic requirement. Sometimes the remedy was no remedy at all; at others, the remedy was worse than the evil complained of.
Take the case of post-operative transgenders. They sued to have their acquired identity recognised by the State, invoking the fundamental human right to privacy and family life. The Constitutional Court accepted that the State was violating their human right to privacy by not registering their post-operative gender. And then it ordered a ‘remedy’. The remedy consisted in a public annotation on their original birth certificate that they had had a “change of sex” sanctioned by court judgment.
So, to remedy a breach of PRIVACY, the court ordered that their public birth certificate should advertise to the whole wide world that, in its view, they were freaks of nature, more-or-less males who had become more-or-less females because a surgeon’s knife had hacked away at their intimacy. That’s dignity for you. That was how the court remedied a violation of the right to privacy – by exposing publicly the most private and shaded corners of the victims’ identity. Did you say unbelievable?
The constitutional courts’ myopic reading of their inherent power to grant ANY remedy they feel appropriate, is exemplified by their refusal to award compensation for pain and suffering inflicted by breaches of human rights. For 29 years the constitutional courts claimed they had no power to redress pain and suffering. An almighty supreme court expressly empowered to grant ANY remedy it deems appropriate, and yet it has no power to order the government to cough up moral damages! For 29 years the court cheated victims of this most elementary of remedies.
The Constitutional Court has to grant remedies for any violation of the Constitution, not only of human rights. And here again the remedies granted have sometimes been, at best, problematic. In a general election, one political party had, by an obvious and uncontested counting error, elected MPs that should not have been elected; with the result that candidates of the other political party were not elected through the same obvious and uncontested counting mistake.
The aggrieved party sued for the rectification of this material error. The very obvious remedy would have been for the Constitutional Court to ‘unelect’ the wrongly-elected MPs, and register the election of the candidates erroneously left out. That was not the wisdom of the Constitutional Court. The ‘remedy’ was to re-endorse the illegal election of the wrongly-elected MPs (why?!), and as a consolation prize, to augment Parliament with those candidates who, by error, had not been elected. I have not, so far, met anyone able to follow the momentum of this wisdom. A whiff of timidity, perhaps?
Why does the Strasbourg court apply Article 13 to Malta with uncomfortable frequency? Article 13 means that the Maltese constitutional courts have not given “an effective remedy” to victims. This is particularly glaring in those violations resulting from Malta’s rent, expropriation, requisition and other laws which throttle private property. The Maltese courts acknowledge a violation, and then redress it with offensive zilch. No effective remedy by the courts equals a second violation of human rights, this time directly by the constitutional courts themselves.
Although the supreme law gives the constitutional courts unlimited powers to reinstate the rule of human rights law once this has been violated, the courts have self-harmed these powers to distressing proportions. The only redress they will grant, they said, must be whatever is available within the existing legal order. Sounds nice, works out pitifully. Now I would understand that no redress should be in breach of the Constitution. But no redress that is “incompatible with the established legal order”?
Take the controlled-rent laws. A landlord claims that his right to the enjoyment of his property is breached by the law that forces him to renew a lease, though he is receiving a pittance from those enjoying his property. The courts said, sorry, as remedy we can only give you the maximum trifle allowed by law, forget market values. So the court acknowledges that the whole foundation of the rent laws is iniquitous, but then fashions any redress careful not to disturb those – iniquitous – laws.
No wonder those who take this ‘redress’ to Strasbourg, hear the Court there reveal what it thinks of these piffling made-in-Malta remedies. It’s not very kind, I assure you.
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.