The Constitution expressly makes Parliament subordinate to the Constitution.The Constitution expressly makes Parliament subordinate to the Constitution.

What happens to a law that the Constitutional Court finds to be in breach of the Constitution?

Up to 1987, the question did not even arise, as Malta’s was the ONLY Constitutional Court in the whole democratic world that had NEVER found Parliament in violation of the Constitution when making laws. Not once! Other Constitutional courts throughout the democratic world worked overtime to annul any laws incompatible with their supreme law, pulverising them like clay pigeons in a busy shooting range. Lo and behold, Malta’s Constitutional Court, fearlessly and defiantly, ALWAYS found the politicians in Parliament to have done the perfect thing. An absolute world record! I pray you are sufficiently proud, grateful and impressed.

Things changed slightly after 1987. Constitutional judges start­ed awaking from their long and coma­tose stupor. Some discovered a new fearlessness they had kept discreetly out of sight throughout the previous years. Finally, a few acknowledged that the politician in Parliament was not invariably infallible and that some laws had wounded the supreme law, the Constitution.

And what happened next? Were the laws that violated the human rights guaranteed by the supreme law, declared to be null and void? You must have a natural genius for comedy if you think that.

There are basically two, very different, constitutional systems in the democratic world: those that recognise the supremacy of Parliament, and those that subscribe to the supremacy of the Constitution. Almost the whole democratic world has opted for the supremacy of the Constitution. A minuscule minority – the United Kingdom to be exact – follows the insular ‘supremacy of Parliament’ doctrine. According to this system, Parliament is all-powerful and supreme, and no court has any authority to inquire into the validity of any law, or to decree its nullity.

With the exception of the UK, almost all the rest of the democratic world follows the antipodal system. There is a supreme law – the Constitution – and Parliament has to respect the Constitution when making laws. Any law which, wholly or partially, is incompatible with the Constitution, is void. Constitutional Courts are, or should be, the inflexible watchdogs over this supreme value of democracy – that nothing against human rights and the constitution survives in the legal order. With Independence, Malta opted formally and loudly for the supremacy of the Constitution.

Constitutional courts have virtually only this function: to see that the supreme law rules over everything –  Parliament, government, the courts themselves. Yes, but not in Malta. MALTA’S IS THE ONLY CONSTITUTIONAL COURT IN THE WHOLE DEMOCRATIC WORLD THAT HAS SURRENDERED THIS FUNCTION AND LEFT THE LAST WORD TO POLITICIANS. Malta’s is the only Constitutional Court that does not annul a law which it has found in violation of human rights. Malta has the only Constitutional Court which has abdicated its primary function: to quash any ‘law’ inconsistent with human rights.

Not all Constitutions spell out expressly that laws found to be inconsistent with the supreme law are null. Some do and some don’t. But whether constitutions do or don’t, ALL constitutional courts in the democratic world (except one – guess which?) have asserted their power to annul laws that violate human rights. The US Constitution has no such express provision, yet already in 1803, in Marbury v Madison, that Supreme Court had asserted this to be its function. The doctrine established in 1803 has been followed by EVERY constitutional court in the democratic world – except Malta.

Malta’s Constitution has an EXPRESS provision that laws incompatible with the Constitution are void. But despite this imperative, the midgets that sat in the Constitutional Court have abdicated the sole function the Constitution has conferred on them: to see that nothing unconstitutional survives. After 1987, they started finding that some laws breached constitutional human rights – but also that those laws remained valid and binding, unless and until Parliament was kind enough to repeal them (which it very, but very, rarely was). Our distressed constitutional judges worked on the assumption that it was not the Constitution which was supreme, but the transient discretion of who happened to be in power. Once again, the judges betrayed the very function they had been entrusted to enforce. Rejoice – they are alone in the whole democratic world.

Leaving Malta without a Constitutional Court was Dom Mintoff’s greatest contribution to the promotion of human rights in Malta

Our Constitution could not be clearer: it asserts the “Constitution to be supreme law. If any other law is inconsistent with this Constitution, this Constitution shall prevail and any other law shall, to the ex­tent of the inconsistency, be void”. And, as to some fantasy “supre­macy of Parliament” over the Constitution, it again expressly makes Parliament subordinate to the Constitution: “SUBJECT TO THE PROVISIONS OF THIS CONSTITUTION, Parliament may make laws for the peace, order and good government of Malta, with full respect for human rights.”

Not one single serious jurist who has commented on the Constitution has even considered that laws found to be inconsistent with human rights remain valid and enforceable unless a political parliament is gracious enough to repeal them. Kevin Aquilina, Austin Bencini, Tonio Borg, Salvo Andò, Martina Herrera, and every other jurist who has intelligently profiled the architecture of Malta’s constitutional edifice all agree that this grovelling doctrine adopted by the judges is constitutional garbage. And yet they persevere. Being docile with the politicians wins more awards than being subservient to the supreme law. They are heroically inflexible in their gutlessness. 

A law can be ‘inconsistent with the Constitution’ for either of two reasons – because it violates human rights, and because it violates any other provision of the Constitution. Now the discovery of the century, made by the Maltese constitutional judges, and by nobody else in the whole wide world, is that if the court finds that a law violates constitutional human rights, then that law is invalid for the person who challenged it, BUT VALID AND ENFORCEABLE FOR EVERYONE ELSE. Only a political Parliament can be benevolent enough to do something about it, and only if it feels like it.

This has the absolutely dazzling effect of the very same law being valid and invalid at the same time. It is void for X, but, although certified in breach of human rights, valid and enforceable for Y, Z and everyone else. This pernicious nonsense is the solemn doctrine of the Constitutional Court – it cannot annul laws that it has certified as being in violation of fundamental human rights. Courts are still obliged to enforce laws that the constitutional courts have found to violate the Constitution, no kidding. In Malta, laws certified by the Court as breaching fundamental human rights are just as binding as those whose conformity with the Constitution is unquestioned.

This doctrine also produced the other charming effect that a law, yesterday dead-for-unconstitutionality, is today discovered to be alive and kicking, and tomorrow again mourned and ready for reburial, flowers courtesy of the Constitutional Court. This is not theory. I can list several cases where this monkey business flourished, because the law is alive and dead at the same time. Thanks, dear Court, for upholding the certainty and the majesty of the law. What would we do without you?

How and when this toxic doctrine found itself embedded in the Court’s case law remains unclear. At first it appears stealthily, without any reasons given. It was possibly introduced inadvertently by a chief justice who honestly believed that knowing anything about human rights law was a crime that would not go unpunished. Subsequent judges then felt the need to justify and rationalise these logical profanities.

This is the contribution of the Constitutional Court to human rights: a formal boast of impotence. How does it feel to be the only Constitutional Court in international democracy to vaunt the abdication of its primary power? How does it feel to surrender your main function to the capricious goodwill of politicians? Dom Mintoff had suspended the Constitutional Court for almost three years. Many considered this his ultimate affront to human rights. Personally, I believe that leaving Malta without a Constitutional Court was Mr Mintoff’s greatest contribution to the promotion of human rights in Malta.

This distraught case law of the Constitutional Court is telling Parliament it can pass any laws it fancies that violate human rights, as the Court will not be doing anything to void them. This is actively inciting Parliament to pass all the anti-human rights laws it desires, to its heart’s content – the Constitutional Court has whimpered it will just keep on looking amused. This is giving blank cheques to despotism, signed with a flourish by the Constitutional Court. Thankfully no rogue government has so far presented them for cashing, but no doubt one day it will. Judges read the small print; they do not read the writing on the wall.

I have run out of silence.

Giovanni Bonello served as a judge of the European Court of Human Rights in Strasbourg for 12 years.

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