No one would deny that the best law is one that is concise, clear and certain. How many of our laws come close to that ideal? To date, we cannot provide a clear and certain answer to such a question. Since 1980, we have had a Law Commission entrusted to review legislation, propose consolidation where necessary and ensure that language conflicts between the Maltese and English versions are resolved. It may also carry out other work assigned to it by the justice minister.
The present Law Commissioner describes the consolidation of legislation as "an ongoing project", rather than an annual exercise of legal repeals and updates. Indeed, it was only once, in 2014, that an exercise was carried out to clean up Malta’s statute book. The outcome was that 36 outdated laws and 116 legal notices were repealed. Another nine laws were consolidated. The spring-cleaning exercise, dubbed Repeals Day, was part of the government’s attempt to cut bureaucracy and simplify public administration.
Legislative consolidation means combining in a single text the provisions of a basic instrument and all subsequent amendments. There is no amendment to the content or form of the existing material. Consolidation corresponds to a purely declaratory, unofficial simplification of the legislation. Incorporating the amendments into the basic instrument does not entail adopting a new instrument. This is a purely clarification-oriented exercise.
Consolidation serves the interests of citizens, administrative authorities and the business world by providing a more accessible and transparent legislative framework and has the advantage of making the law more reader-friendly. The aim is to make a law clearer, shorter and more accessible. A good consolidation has real practical benefits for those who work with the law (such as legal practitioners and the courts) and those concerned with making it (such as Parliament and the government). But consolidation, unlike codification, does not generate a new mandatory legal instrument.
To come closer to the ideal of having concise, clear and unequivocal laws, efforts must be made to improve our legislative framework and the efficiency of our justice system. The number of new regulatory authorities, the layer of government and the size of jurisdiction have exaggerated our country's legislative load. Growing complexity in society and international relations means we have more legislation than before.
It is well known that the law is a dynamic concept that keeps changing with time and place. It must change with changes in society. Law, in the modern sense, is considered not as an end in itself but as a means to an end. The law is an instrument for securing justice. It must, however, be stated that justice alone is not the only goal of the law. The notion of law represents a basic conflict between two different needs, namely, the need for uniformity and the need for flexibility. Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalised, citizens can plan their activities with a measure of certainty and predict the legal consequences of their conduct. This is even more necessary in the case of certain laws, notably the law of contract or property. Uniformity and certainty of the rules of law also bring stability and security to the social order.
We still have too many outdated laws in our statute book, with some of them sounding quite hilarious to the younger generations. Too many laws have served their purpose but are still to be found in our codified laws and can still technically be enforced. Others might even appear to be in contradiction with other laws, not least the Constitution itself. Even more serious and confusing is when a law is declared unconstitutional by our courts and, yet, is left untouched by our legislator so that, again, technically speaking, our ordinary courts would still be obliged to apply and enforce it.
For example, how much longer do we still have to wait for an exercise to revise all the archaic laws on land and property use that have been repeatedly condemned by the courts? We still have too many outdated laws, which were put in place decades ago in a completely different economic scenario, that urgently need to be adjourned to reflect today’s realities. To complicate matters, we are overwhelmed by laws, not only in their number but also in the complexity of the matter regulated. This tends to undermine the normative function of laws.
Legislation is laid down by the government to assist in the implementation of complex policies that are intended to have far-reaching political, social and economic consequences. Therefore, efforts must be made to understand the reasons why legislation is enacted and, once enacted, the reasons for its success and failure. A statutory provision may be judged efficacious if the consequences that it brings about in practice realise the purposes for which it was enacted. Does that mean too much legislation results in inefficiency? Scattered rules result in difficulties in accessibility and it is very unlikely that efficacy can be achieved. Furthermore, overlapping jurisdiction in some laws often creates conflict and contradiction between them.
Good listing practices, sunset clauses for temporary laws, regular updates of quantifiable provisions of laws and eliminating frivolous government litigation are other suggestive measures that can enhance justice in our country. In the meantime, the power of lawyers remains in the uncertainty of the law.
Dr Mark Said is a lawyer