When faced with conflicting laws, in a democratic society one goes to Court, hopefully to clarify and possibly to resolve the matter at hand. It is what ADPD-The Green Party did with reference to specific electoral provisions in our Constitution which are discriminatory in nature.

Parliament has, in the past years sought to address issues of proportionality and gender balance in general election results. The former was codified in 1987 in article 52 of the Constitution and tweaked in 1996 and 2007. The latter was codified in article 52A of the Constitution as recently as 2021. The wording of articles 52 and 52A of the Constitution, however, leaves much to be desired as their applicability is generally limited to those instances where only two political parties make it to Parliament.

The outcome of this state of affairs is that only the Nationalist Party and the Labour Party benefit through adjustments to ensure proportionality and gender balance in the Parliamentary electoral results. There is a clear blanket exclusion of all other political parties, by design. It was designed by the PLPN to suit their needs.

This is not only downright discriminatory. Even worse, it is discrimination which is enshrined in our Constitution. Should the Courts provide a remedy?

In last Monday's decision, the Civil Court in its Constitutional jurisdiction, when considering ADPD's request stated then effectively the Constitution itself is out-of-bounds. No article of the Constitution, stated the Court in its decision, can be considered as being inconsistent with or in breach of any article of the said Constitution. In simple terms, the decision of the Court signifies that no article of the Constitution can be in breach of the human rights provisions of the Constitution.

This decision does not address the issue at hand. It is extremely disturbing. If this decision is not overturned by the Constitutional Court, it will open a can of worms through which governments can be encouraged to use the Constitution itself as a dumping ground for problematic legislation.

The decision clearly points that problematic legislation placed in the Constitution could be protected. Just as the Court considers the discriminatory aspects of the electoral legislation to be protected simply because and as a result of being part of the Constitution.

Now this contradicts the basic principles around which our Constitution is constructed. It is to be underlined that the first article of Malta's Constitution contains this basic declaration: "Malta is a democratic republic founded on work and on respect for fundamental rights and freedoms of the individual."

Everyone emphasises that the Constitution is the supreme law of the land. No one contests this. However, when one part of the Constitution clearly contradicts another one it is pertinent to query why the Court does not consider it its duty to iron out these inconsistencies on the basis of the fundamental principles enshrined in the Constitution itself. If this contradiction is not addressed, it would be reasonable to query as to which of the contradictory parts of the Constitution is effectively supreme!

To make matters worse the Court, last Monday, also declared that the Constitution is not subject to the provisions of the European Convention of Human Rights. This is most probably incorrect, but with the developing scenario, who are we to resort to protect us from discrimination?

There is a serious possibility that without reasonable protection from our own Constitution, we will be stepping into George Orwell's farm, where, while all are equal, some will definitely be more equal than others.

Carmel Cacopardo is a former Chairperson of ADPD-The Green Party in Malta.