Daphne Caruana Galizia’s foray in constitutional matters was indeed unfair and lacked objectivity (TMIS, 5 November). The main thrust of her article, “Now for some real news”, was that we should be ashamed that on 15 different occasions the Strasbourg-based European Court of Human Rights “overturned” judgements of Malta’s Constitutional Court.

What the author of the article conveniently fails to mention is that these judgments – some of them linked by subject-matter rather than each raising a separate legal issue – were delivered over a period of 18 years (1987–2006), that is to say ever since Malta ratified the right of individual petition to the Strasbourg Court in 1987. In at least two of those cases, the matter had not even come before the Constitutional Court before being tackled by the European Court, while in at least one other case – the Fleri Soler case – the Strasbourg court decided the case on the basis of a point that had not been raised in the Constitutional Court.

The article is also unfair because its author, in her obsession to throw a dark shadow on our highest legal institution, fails to mention an important point, namely that the statistics,

liberally diffused in the article, do not include the several applications filed by petitioners following judgments of Malta’s Constitutional Court, which had been declared as being manifestly ill-founded, mostly because the judgements of the Constitutional Court were sound at law. For instance, between 1999–2005, 28 such applications were summarily dismissed. More applications were disposed of in a similar manner before the single Court was set up in 1998 – where the Strasbourg human rights institutions refused to overturn the conclusions of Malta’s guardian of the Constitution. Others have been declared manifestly ill-founded and therefore inadmissible, not on a mere technicality but after a brief examination of the merits.

Moreover, the moment Malta ratified the right of individual petition, it was evident that in some cases, judgements delivered by Maltese judges would be viewed differently by European judges, who, one must say, are not free from error or contradictions. The typical example was when the European Court took five years to declare that the duration of civil proceedings in a member State exceeded a reasonable time when they lasted for more than four years!!

Be that as it may, a cursory comparison with the record of other supreme courts of other Council of Europe States brings out the relatively good record of our Constitutional Court as regards the lack of agreement by the European Court. In the past 12 months (note, not 18 years), France has had 74 decisions delivered against it. According to Caruana Galizia’s reasoning, that should consign France’s Supreme Court to eternal perdition, followed in quick succession by the Italian Corte Costituzionale (66 decisions against Italy), the Austrian Constitutional Court, (16 decisions) and the Cyprus Supreme Court (14). The German Federal Constitutional Court (six), the House of Lords (six), the Swiss Federal Constitutional Court (seven), the Spanish Constitutional Court (four), the Portuguese Constitutional Court (five) and the Dutch Court of Appeal (six) would make it to limbo (if they hurry before it is abolished). The Danish Supreme Court (two) might be given absolution!

Ms Caruana Galizia’s choice of some of the judgements was indeed unfortunate. Several of the cases mentioned in her article referred to the provisions of the Housing Act 1949, which were repealed in 1995, except for the pre-1995 requisition orders. At the same time, she included the San Leonardo Band Club case in her bill of indictment against the Constitutional Court.

This case was the first valiant attempt made by the Court of Appeal in 1993 to challenge the flippant and abusive use of the term “public interest” to requisition property. I must declare an interest here because I was counsel for applicants in that case. In 1986, on the eve of the 1987 election, a Labour government had thought it fit to requisition a private residence and allocate it as an extension to a band club, which had already benefited through another requisition order in the 1950s, at the expense of the very owners who had now received this second requisition order!

The case was filed in 1988, and final judgement was delivered in 1993. The Court dealt in detail with the requirement of “public interest” and for the first time opened the way for challenging government’s hitherto wide margin of appreciation in deciding what amounts to public interes.

Following the end of this six-year saga; the respondents, apparently not amused that the requisitioned property was to revert to its rightful owners, unjustly tried to re-open the case by way of re-trial, alleging a “wrong application of the law”; this further request was justly rejected by the same Court – and it was this point that was referred to the European Court. Hardly a case to use to charge the Constitutional Court with apathy or lethargy in defending human rights in Malta!

I have appeared before the Constitutional Court in several cases in the past. I have agreed with it on some issues and expressed disagreement with others. Indeed, since I relinquished my law practice to serve as a Minister in 1998, I have been more on the receiving end as regards human rights cases.

But to depict our highest court as an incompetent or dozy sentinel of human rights in Malta is unjust and unfair. It has expressed opinions on a wide range of subjects, which in certain cases the proof required in torture cases, or the applicability of Article 6 in the determination of fiscal and extradition cases, are more liberal and open-minded than some of the European Court judgments themselves.

Indeed, since 1987, the Constitutional Court has delivered to date 368 judgements, 15 of which have been overturned, or in some cases merely “retouched”, by the European Court. Ms Caruana Galizia’s article conveniently does not mention the countless number of cases in which the Constitutional Court has found for the applicant and against the government or other public body. Taking only the last 12 months, the Constitutional Court has found for the applicant and against the government in no less than 13 cases out of the 37 judgements delivered during the same period.

Ms Caruana Galizia need only browse through my analysis of Judge Bonello’s dissenting opinions in the book Celebratio Amicitiae, to learn about the inconsistencies, and in some cases outright unfairness, of some of the European Court’s judgments.

This does not mean that the European Court is not a competent institution deserving admiration. It only means that, as in all matters, human error is not unknown, which is why appeal or review or reconsideration proceedings exist in the first place. To try and tarnish the reputation of our Constitutional Court because the European Court did not agree, or not agree fully, with 15 of its judgments over an 18-year period, betrays a significant ignorance of how legal systems work.

Tonio Borg

Deputy Prime Minister and

Minister for Justice and Home Affairs