I was completely unaware of the case until I was reading (still am) for reviewing purposes an account of the speeches made at what was called The President’s Forum which took place on 21 April 2012 under then President George Abela.

The speech to which I am referring was a speech made by Judge Giovanni Bonello. I checked but there do not seem to have been any repercussions, reactions, reverberations, etc. to it, either in Malta or abroad.

Bonello’s thesis is relatively simple to grasp.

Ever since Independence, Malta has declared and said that it is a republic based on its Constitution, the supreme law according to Article 6 which says the Constitution is the supreme law.

There is nothing that says that every country must be based on the Constitution. In fact, there is a tiny minority of states, including the UK, which have opted for the supremacy of Parliament.

What has happened in Malta is that while on paper we say our legal system is based on the supremacy of the Constitution, in practice we – specifically the Court – have allowed Parliament to become supreme, thus voiding all insistence on the supremacy of the Constitution.

This has brought about a situation that is nothing short of ridiculous.

There have been cases where the Constitutional Court declares that a law is anti-constitutional. One would perhaps think that this judgement means that the law in question is removed from the statute book. In fact, however, it means no such thing. The law in question that the Constitutional Court declared to be unconstitutional is void with regard to the person who instituted the court case but unless it is abrogated by Parliament, it remains law and the Court itself stands guard to ensure it is obeyed.

There have been many cases where the Constitutional Court struck down some law or another and Parliament – in its own sweet time – decided to change it and there have been other cases where Parliament, for whatever reason, did nothing.

We have grown so used to this situation that we think it is normal, when in fact it is not. It turns upside down the principle that the Constitution is supreme and instead puts Parliament at the top.

Due to the weak sentences handed down by successive Constitutional Courts, and also thanks to successive Parliaments’ creeping grabbing of real supremacy, the unthinkable has happened: the Constitution is subverted and a new dictatorship put in its place.

This explains the keenness with which elections are fought, the winner takes all mentality, because all that matters is getting the majority of votes. Whoever somehow gets the majority of votes can do anything, there is nothing that can check him. The Constitutional Court, which should have been a check on Parliament’s legality, has rendered itself so weak as to be ineffective.

Judge Bonello even gives us two examples of how the Constitutional Court is so weak as to be inconsistent. On 6 September 2010, it found a law establishing compulsory arbitration in some traffic accidents to be valid (Joseph Muscat v Prim Ministru) as it was in conformity with the human rights provisions of the Constitution. On 30 September 2011, the Constitutional Court, in a case instituted by a different plaintiff, (H. Vassallo and Sons Ltd v Avukat Generali) ruled that the same law on compulsory arbitration was void as it violated the same human rights provisions of the same Constitution.

Tongue-in-cheek, Judge Bonello suggests the following wording to replace Article 1 of our Constitution: “Malta is a democratic republic founded on work, sometimes on the respect of the fundamental rights and freedoms of the individual, and always on the enforcement of laws that violate them.”

The same Constitutional Court also declared its independence from decisions on the same issues made by the Supreme Court of Europe: the European Court of Human Rights, because this does not form part of the national judiciary and so the court did not feel it had to respect those judgements.

To conclude: “Some countries list the subversion of the Constitution as a grave criminal offence. In Malta, where the subversion of the Constitution is practiced openly, cheerfully and without violence, under the distinguished patronage of the Constitutional Court, it is the trivial pursuit of the three powers of the State.”

One would have expected Judge Bonello, after such words, to have been hung, drawn and quartered in some public place. But, the last time I looked, he is still hale and hearty. His words have slithered down the national mountain of forgetfulness.

Many sometimes speak, rather sporadically to tell the truth, about revising the Constitution, creating a Second Republic and changing the national course. I humbly suggest that nothing can work unless one tackles the situation at its roots: Parliament, however composed, must remain Parliament but the Constitutional Court must become what it should have always been in the intentions of the Constitution: the defender of public and individual freedom and of the supremacy of the Constitution.

This is the pivot, the fulcrum, on which the future must be built.

 

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