The Malta Independent 19 April 2024, Friday
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Sir Arturo Mercieca: The number one judge of the last century

Kevin Aquilina Sunday, 28 January 2024, 08:38 Last update: about 4 months ago

Book review: Professor Tonio Borg’s The Arturo Mercieca Court (1924-1940) A Legal Analysis, Kite Group, Hamrun, 2023

Professor Tonio Borg has launched his eighth law book that deals with the landmark judgments of Chief Justice Sir Arturo Mercieca delivered between 1924 and 1940. This is not a biographical volume on the life and times of the eminent judge but a legal analysis of those cases synthetized in this book. However, the publication does contain a bibliographical chapter on its sole protagonist that was penned by Judge Giovanni Bonello (Sir Arturo Mercieca: A Colossus of the Law) that was already published elsewhere. Undoubtedly, when one reads the book under review, one cannot but not vigorously agree with Judge Bonello that Sir Arturo was indisputably a colossus of Maltese law.

The book is divided into eight chapters, apart from the Preface written by Professor Borg and the biographical chapter penned by Judge Bonello. The first chapter discusses the first colonial self-government Constitution of 1921 and the electoral cases litigated thereunder. The declaration of emergency and its judicial scrutiny is the subject of chapter two. The third chapter discusses the ultra vires cases and the fourth judicial review of administrative action and the civil responsibility of government. Freedom of expression and libel law form the topic of the following chapter. Chapter six also relates to freedom of expression but from the angle of Sedition Law. Other salient judgments delivered by Sir Arturo receive analytical attention in chapter seven with the final chapter being an epilogue. This oeuvre reproduces the text of two landmark judgments of the Mercieca Court: Cassar Desain v Forbes; Mabel Strickland v Edgar Sammut noe together with the appeal decision therefrom of the Judicial Committee of the Privy Council. Ordinance No. I of 1942 that related to the removal from Malta of persons lawfully detained therein, and the forced letter of resignation from the office of Chief Justice that Sir Arturo Mercieca was obliged to write by the British authorities.

In chapter one, Professor Borg discusses the 1921 colonial self-government Constitution in relation to electoral cases. The first case decided by the Mercieca Court of 1924 established that Professor Gustavo Ullo Xuereb was a member of the Legislative Assembly on behalf of the Unione Politica Maltese and that at the same time he was employed as Professor at the University of Malta and a medical doctor in a mental hospital. Chief Justice Mercieca had to decide whether Professor Xuereb could still retain his parliamentary seat in the light of the 1921 Constitution’s prohibition directed at public officers from serving in the Legislative Assembly. The Mercieca Court decided that the duty of a medical doctor at a mental hospital was intimately linked to his professorship and, therefore, was allowed to sit in the Legislative Assembly. A similar judgment was delivered in relation to Professor Luigi Preziosi where the Mercieca Court held that the latter Professor’s role as a medical doctor at the mental hospital was secondary to that of Professor at the University that was his primary employment.

In the case of Peter Bugelli, two senators that were appointed by the Trade Union Congress – William Savona and Salvatore Zammit – were subsequently elected to the Legislative Assembly and, consequently, had to resign their membership of the upper chamber. The government had changed the electoral rules when their substitutes were to be appointed on Senate but after the two vacancies occurred. The Court of Appeal, presided by Sir Arturo, observed that the election had not yet been held and that, therefore, a change of the electoral rules was possible.

In the latter case, Mercieca contended that there was no need for an applicant in electoral cases to prove that s/he had personal interest once this was a popular action and that the publication of new electoral rules was an act iure imperii that could not be challenged in court. This matter was reconsidered in Cassar Desain v Forbes where the Mercieca Court asserted the principle thar subsidiary legislation was not subject to judicial review. This principle has been incorporated in section 469A of the Code of Organization and Civil Procedure and in the case law thereunder.

From a reading of Mercieca’s judgments, it emerges that the Chief Justice was not a conformist, especially in those cases where he thought that the law’s rigid application was conducive to an injustice or would amount to a legal howler. He studied in depth local and foreign case law and the works of jurists and quoted extensively therefrom in his erudite judgments. Professor Tonio Borg’s volume demonstrates that Mercieca was a visionary and had no qualms to disturb case law when he thought that it lead to an injustice or to an improper application of the law. Suffice it to mention that although our courts had over the years embraced the distinction between governmental acts carried out jure imperii or jure administrationis, Sir Arturo Mercieca emphasised in 1935 the iniquity of this outdated distinction. It was as late as 1972 that Mercieca’s opinion in the 1935 Cassar Desain v Forbes judgment was vindicated by another illustrious judge, Maurice Caruana Curran, in the 1972 Lowell v Caruana judgment to the extent that this distinction was laid to rest once and for all. But Mercieca was non-conformist, progressive in his thought, and forward looking in other spheres of the law, apart from Administrative Law above cited. Needless to say, swimming against the current, does pose its own risks and Mercieca eventually ended up interned and subsequently illegally exiled from his native land. For Mercieca his principles preceded his personal interest, with all the adverse consequences this brought about with it.

Other instances where Mercieca’s judgments were pioneering, visionary, and anti-conformist comprise his above-mentioned judgments on the electoral law. Here, contrary to the judicial output of the Constitutional Court, he asserted that in a popular action (a Public Law action), there was no need for an applicant to prove personal (juridical) interest. The popular action did not derive from statutory law but from a well-reasoned judicial interpretation of Public Law. Our courts faithfully had adopted this interpretation but the Constitutional Court has departed therefrom.

Another instance where Sir Arturo Mercieca went his own way concerned the annulment of around 40 laws enacted by the Legislative Assembly, a judgment that obtained the approval of the Judicial Committee of the Privy Council. The British government had to enact a law to retroactively confirm the laws declared null and void. Few and far been have been the instances where the Maltese courts, post-independence, had the courage and mettle to take such a bold step as Chief Justice Mercieca took during colonial times.

The Chief Justice favoured justice to law. Where a law produced an unjust outcome, he unstintingly embraced justice not statutory law. In his judgments, he had already enunciated human rights well before the adoption of the United Nations Universal Declaration on Human Rights of 10 Deċember 1948. Yet when he was the interested person, the British colonial government failed to dispense justice to Mercieca by first interning him and subsequently exiling him and other Maltese notwithstanding a declaration to the effect by the Court of Appeal that the government’s decision to exile was illegal.

Mercieca was consistently spied by the British Security Service operating in Malta. The latter service went out of its way to attempt – unsuccessfully – to prove that Mercieca was an Italian Fascist spy and disloyal to the British Crown. Suffice it to read the dispatches sent by Colonel Beltram Ede, the Defence Security Officer stationed in Malta, to the Security Service in London. Although Mercieca was obliged to resign his office of Chief Justice, interned, and exiled, he was never prosecuted for treason, sedition, or any other crime against the government/state for the very simple reason that there was completely no evidence to support any such charge, even of the flimsiest nature.

I find it difficult to classify Mercieca a spy or disloyal when it was Mercieca himself who, when presiding the Criminal Court, found in the 1930s five persons guilty of espionage: (1) Herbert Charles Pollok and Constant Kahil; (2) Arnaldo Belardinelli; and (3) Dr. Nicolò Delia and Joseph Flores. All were sentenced by Mercieca to prison. These were the only cases, since the enactment of the Official Secrets Act, that have been prosecuted thereunder. The irony is that it was the British authorities themselves – not Mercieca – who subsequently pardoned these spies and released them prematurely!

The Mercieca-delivered judgments discussed by Professor Tonio Borg are the product of a just and wise man that remain current to date. Nevertheless, it is with regret that I note that our Constitutional Court has not followed his learned pronouncements. For instance, the Constitutional Court, quite contradictory, requires proof of personal interest to enforce the Constitution unless the Constitution otherwise provides.

Mercieca bears a presence in the Constitution, together with all the exiled Maltese during the 1940s even though not mentioned by name. In section 43 of the Constitution and in section 5(2) of the Emergency Powers Act, it is specifically stated that the deportation of Maltese from their homeland is prohibited.

After having read Professor Tonio Borg’s book on the Mercieca Court, I reaffirmed my conviction that Sir Arturo Mercieca was the number one judge of the last century. He was a man of principle integrity, and culture, just, learned in the law, fully-fledged jurist, applied well the law of the facts at issue, forward looking, courageous, anti-conformist, and pioneering. I consider him a role model for the Maltese judiciary. At the same time he was unlucky: wrongly suspected to be a spy and disloyal to the British Crown, interned and exiled for a crime he never ever committed, saw his flourishing judicial career terminated abruptly and prematurely when he still at the apex of his judicial career and had a lot of offer to Malta as Chief Justice. The man who combatted injustice and prized justice over the law fell through no fault of his but of those who were out to destroy an innocent man. It is a pity that history repeats itself, though the protagonists change, with post-independent Maltese governments walking on the same footsteps of the British colonial government and several other Merciecas who in Malta are meted out the law instead of justice by the public administration, government, and the judiciary.


Kevin Aquilina is Professor of Law at the Faculty of Laws, University of Malta

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