I think it is self-evident that Giovanni Bonello in his Misunderstanding the Constitution: How the Maltese Judiciary Undermines Human Rights (BDL, 2018, 190 pp.) is the most important book of the decade.

It is admittedly a small book. It has the same size usually reserved for poetry books. But neither size nor cover have ever been a good indicator of the quality of a book's contents. This book is for Malta what the books of the philosophes were for France. The philosophes were the French intellectuals who opened the eyes of the French middle classes to the abuses perpetrated by the system and how a better France could be carved out of the old one. They paved the way for France to become Modern.

Modernity's greatest achievement has not been democracy in the sense of the ruled (s)electing the rulers or empowering them to rule (this had already been achieved one way or another over the ages). Modernity's greatest achievement consists in the checks and balances meant to limit the power of rulers and their servants. In other words, the shift from the rule of men to the rule of law.

This book is an invitation to the thinking public to discard the absolutist conception of the State to which we still collectively and neurotically cling. The thinking public is invited to embrace the modern vision of the State as a vehicle for the individual's well-being and self-fulfilment. Judge Bonello's vision is of a State which ceases to serve as the instrument of power of potentates and their entourages. He essentially declaims the fundamental values and principles of the Constitutional State, the Modern State.

This is the message Giovanni Bonello sets out to convey: the urgency to apply for membership of, and finally join, Modernity. Leonardo Sciascia once wrote that Modernity had bypassed his native Sicily. The same could be said about Malta. Judge Bonello is campaigning, as it were, for a mentality revolution so profound that Malta would finally embrace Modernity once and for all.

This book is an inverted paean to the Constitutional Court. It implicitly sings praise for the role the Constitutional Court could play if only our democracy were Modern and not dysfunctional. For this reason, Misunderstanding the Constitution is not a book only for lawyers, even though lawyers would greatly benefit from reading it. It is instead a book also and mainly for the common citizen desirous of understanding the workings of a democracy that works.

A messy situation but knowledge is power

Judge Bonello wrote a series of 21 articles for another newspaper and these were reworked into the 21 chapters of this book. They take the reader on a journey, each subtly raising questions which the successive chapter answers, usually forcefully. The author's literary prowess is striking, and the underlying structure of the book is nothing short of brilliant because of this concealed concatenation of arguments. During this intellectual journey, one finds a distillation of Judge Bonello's experiences in constitutional (human rights) cases as well as his coruscating criticism of the messy situation prevailing in this country where the understanding and application of the constitutional law are concerned.

For indeed it is a messy situation. At least, this is one of the book's two principal messages I have managed to decipher. The other, however, is a message of hope: knowledge is power. If the citizen (be she a lawyer or not) is aware of her rights and how a proper democracy should function, then the chances of her rights being trampled on are significantly reduced.

Tears and laughter

The text oozes irony, mockery, and sardonic comment at every punctuation mark. Humour is Judge Bonello's forte, and the funnier it is, the harder it hits. But it is not to be classified as "humour" because he is dying to crack jokes. He resorts to humour out of exasperation. As the Danish philosopher mused, "What if everything in the world were a misunderstanding, what if laughter were really tears?"

Judge Bonello's book is a merciless indictment of the judicial organ of the Maltese State and its almost unbelievable inability to understand, appreciate and put into practice the philosophy underlying the provisions of our constitutional instrument, mostly in the domain of human rights. It is a treatise on the philosophy of Maltese human rights law which uses the technique of appeal to extremes, a technique that necessitates the conclusion be ridiculous. Hence the "humour" in Judge Bonello's writing.  

No wonder Vincent Degaetano, former Chief Justice and current Strasbourg judge for Malta, and Kevin Aquilina, Dean of the Faculty of Laws and one of our topmost legal intellectuals, could not contain their enthusiasm for this gem of a book in their introductory essays.

Whereas Judge Degaetano endorses the book and its main theses, Professor Aquilina's lengthy introductory essay explains, in terms accessible to the layman, the background to the book, its raison d'être in the local legal context, and why it is so consequential. Kevin Aquilina is like a reporter reporting from the battlefield where Judge Bonello is busy unleashing his firepower on the enemy.

But who is the enemy?

Giovanni Bonello is the champion of the individual aggrieved twice by a callous State. Twice because the Executive branch tramples on the person's rights, only to be followed by the Judiciary's failure to do anything meaningful about it. For Judge Bonello, the Constitution is a social contract and one of its covenants is that the Constitutional Court should serve as its custodian and guarantor, not as defender of the stronger party.

Sovereignty

Judge Bonello chastises judges and other State officials for failing to read and understand the often direct wording of the constitutional instrument, and end up producing perverse results that offend the basic tenets of Democracy. He is mostly angered by the slavish interpretation imposed on the constitutional instrument particularly in the matter of whether the principles established in the case won by one individual against the State should apply only to that individual or to all those who find themselves in the same situation.

We have the absurd situation at the moment that the principles apply only to the party suing the State, and this disturbs Giovanni Bonello no end. One can understand him and we can equally understand his reaction. He wants to see rationality tame a system that evolved out of historical circumstances.

Let me try to explain.

We Maltese keep repeating mechanically to whoever wants to pay heed - without, I think, a deep understanding of what we are repeating - that our constitutional system follows the Westminster model. In reality, we should be expressing a different notion, namely that we have a Westminster-type constitution. This might seem like a sophism, but it is not.

If we really were to mean that we follow the Westminster model, then that would mean that the rules created for and applied to England are the rules that obtain in Malta. On the other hand, if we were to mean that we have a Westminster-type constitution, then it would mean that we interpret our foreign-inspired (as opposed to autochthonous) constitutional instrument in our own way. Ultimately, the constitutional instrument exists within a wider Constitution, which consists of conventions and other unwritten practices, of lower-ranking laws, but more importantly of the history of the people and of the people's world-view and self-perception. Why should we live according to the world-view of the English? Are we English? Are we expected to "ape our betters"?

This is how I understand Judge Bonello's philosophy and I think it is not legal heresy. I will say why.

First, let me quote an expert in the field. Professor Paolo Lacché has argued in The Journal of Constitutional History (2017), in an article called "The Sovereignty of the Constitution", that even if the text of a constitutional instrument is copied, the constitution is still original (p. 132). Even if it is constitutionalisme octroyé (constitutionalism granted from above), the constitutional document is still the expression of sovereignty. By following blindly the rules of Westminster meant for England, we undermine our own sovereignty.

Secondly, consider the case of our Civil Code as an analogy. In many instances, our Civil Code is a carbon copy of the Code Napoléon. Whereas we do refer to French authors, ultimately it is the Maltese judge who interprets the Code, and the Maltese judge is in no way bound to follow the teachings of the French authors on the Code Napoléon from which our Civil Code derives. The final word belongs to the Maltese judge. And that is how it should be. We should interpret in our way texts that might have originated from elsewhere.

To put it tautologically, sovereignty means sovereignty.

Erga omnes application

The pertinence of this reasoning to the erga omnes debate cannot be overstated.

Let me clarify.

I am referring to whether the effects of judgments in human rights cases ought to apply only to the parties to the suit (inter partes) or to everybody (erga omnes). Judge Bonello has decried the current absurdity according to which if a court decision finds that a law is in breach of the human rights provisions of the Constitution, its effects are deemed to benefit only the parties to the suit. Everybody else still risks having their identical rights identically trampled upon. The Constitutional Court thinks it is not empowered to strike the offending law off the statute books (negative law-making), but instead has to wait for Parliament to execute the abrogation at its leisure and convenience (positive law-making in the form of abrogation).

The first sore point here is that this is inspired by English legal theory (itself the product of England's history), which considers Parliament to be supreme. The second sore point is that it is held that Malta should and shall abide by English legal theory.

But this is wrong and Judge Bonello is fully justified to argue otherwise. Whereas he never enters into this particular aspect of the debate, he is justified because the English system and the Maltese system are not identical and the two countries have gone through different historical experiences.

In England, it all started in the 13th century when the English had had enough with the Pope interfering in their internal politics (or that's how they saw it). This was not only the beginning of English anti-Popery. It was also the watershed moment when the English stopped including in their discourse the "Law of Nature", a phrase used by the Church of Rome to refer her children to the higher law they would have broken when they erred.

The void left in the wake of no longer referring to the Law of Nature was filled by the Common Law. In 1610, the great English jurist Edward Coke crystallised the notion that Common Law was superior to both statute law and custom, and that it was the judge's role to determine what the Common Law said and whether the other two laws conformed to it or not. The judge replaced the Pope, and the Common Law replaced the Law of Nature. Legal historians have even entertained the idea that there was a sort of deification of the Common Law.

But then the Glorious Revolution took place in 1688, and legislative supremacy triumphed in England. The idea that Parliament, and not Common Law, is supreme is a legacy of Cromwell's dictatorship and the political circumstances of that moment in England's history with which we Maltese have nothing to do.

The same fate did not befall the American Colonies; these continued to follow the tradition that there is a higher law. The American Colonies, however, did deviate from the original model. The parliamentary supremacy brought about by the Glorious Revolution was understood in the Colonies to mean that if a colonial law went against the sovereign will of the English Parliament, then that colonial law would be null and void. In other words, English statute law (law passed by the English Parliament) became for the Colonies what the Common Law (and before it the Law of Nature) had previously been for England.

With the attainment of independence - and this was not limited to America, it happened also in Canada, Australia, India - the new constitutional instruments took the place previously occupied by English statute law. This is how judicial review of legislation came to be in America.

Furthermore, the Americans have the stare decisis setup, also known as legal precedent, which means that the decisions of a higher court bind a lower court. For the Americans it was therefore natural that no case should have erga omnes effects (applicable to all) but that all cases should only have inter partes effects (applicable only to the parties). Their stare decisis system meant that ultimately decisions of unconstitutionality would be applied to everybody.

Did our local law have a relationship to English law similar to that between American colonial law and English statute law? No, it did not. Do we have the legal precedent setup in Malta? No, we do not: in Malta, court judgments do not bind other courts, which means that if we want to get out of the current quagmire, we have to follow the continental model (derived from Hans Kelsen's theoretical formulations) and consider constitutional (human rights) cases as having erga omnes effects.

This is why, in my view, Judge Bonello is right.

Why this book is the most important book of the decade

Judge Bonello's book belongs to a tradition in which prominent legal figures write polemics meant to enlighten both their legal brethren and the general public. In line with this tradition, the author's ideas are stripped of their legalese garments and exposed in their bareness for all to behold, and understand.

Lord Hewart, Lord Chief Justice of England, did something similar when he penned a powerful but very readable polemic published in 1929, The New Despotism, in which he argued that the conferment of discretionary decision-making powers on Ministers (to be exercised, in particular, by officials) undermined the rule of law by opening the door to arbitrariness. (Against Lord Hewart's position one could argue that putting all one's eggs in one basket is myopic. As Lord Shaw of Dunfermline remarked, "To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand.")

This is why Giovanni Bonello's Misunderstanding the Constitution is the most important book of the decade, because the arbitrariness of ministers and their minions and of judges can be contained only by the enlightenment and awareness of the public. This is why Tom Bingham published his (award-winning) The Rule of Law in 2010, and the late Stefano Rodotà his Il diritto di avere diritti (2013). Because the public needs to know its rights and how the system should work for those rights to be availed of and protected. This is why Giovanni Bonello wrote a book accessible to the general public bereft of legal verbiage.

Because the general public needs to know that it can sue the State to protect the natural and the historical environment under Chapter II of our constitutional instrument. The staff at the Attorney-General's office needs to know that sometimes it is more consonant with the Constitution to just not argue a case in Strasbourg and leave it to the discretion of the Court. Protesters need to know that the Constitution protects their right to protest and the Police have no right to disallow them. The people needs to know that the Constitution does not tolerate the authoritarian situation in which a right is first trampled on and then, perhaps, one day many years later, a sort of rickety remedy is found and offered. The citizen needs to know that the Constitution wants having recourse to the Constitutional Court to be the first line of action and only exceptionally the last resort after all other possible remedies have been exhausted. The man and woman in the street need to know that the Constitution deems their rights sacrosanct and not a privilege or a concession.

The only defect of this book is that possibly its author thinks that everybody is as courageous as he is.

Or perhaps it is an invitation.

Perhaps this is what Giovanni Bonello set out to accomplish: to enlighten the Maltese, just like the philosophes before him, who enlightened the French. Whoever reads this precious little book, whether he's a lawyer, a lawman, or a layman, he will be enlightened. If all of us see the light, things will have to change and our rights will be taken seriously. If only all of us, every single one of us, were really to understand the Constitution, then nobody would undermine our human rights anymore.