CLA News / Malta: A Commonwealth Nation without the Common Law – an Overview of the Power of the Maltese Judicial System to Declare Laws as Unconstitutional by Laura Chetcuti Dimech and Siddharth Sijoria

Malta has been independent for a relatively short period of time (1964 – 2024; 60 years), yet it has a vibrant constitutional history. Like England, Malta’s political system consists of a parliamentary executive and an independent judiciary. However, unlike the Westminster Parliament, the Maltese Parliament is subject to the Constitution.[1] Further, under the Maltese Constitution, article 6 declares the Constitution to be the supreme law of the land.

Malta’s Constitutional Court is composed of 3 judges, including the Chief Justice. It is the only court empowered to interpret the provisions of the Constitution,[2] and to declare that a law is null and void due to its inconsistency with the provisions of the Constitution.[3] However, the Maltese Constitutional Court is not empowered to strike down an unconstitutional law. This state of affairs has been accepted by the Constitutional Court itself; the pervasive practice is to send a letter to the Clerk of the House notifying him of the breach found, and the buck stops there.[4] Laws are only changed “until and unless” legislators decide to repeal it.[5] In essence, it is similar to the concept of ‘declaration of incompatibility’ found in section 4 of the Human Rights Act 1998 in the UK.[6] However, unlike the UK, Malta is a constitutional democracy and Parliament is a creation of the constitution. Thus, like other codified constitutional systems across the world, the power of a supreme or constitutional court to declare a law invalid goes “hand in hand” with the power of that court to strike it down as permanently void.[7]

Closely related to the aforementioned problem and despite having a Supreme Constitution, Malta has no scope for development of judicial precedent, as cases decided by the Constitutional Court do not become law, they simply offer ‘a guide’ to lower courts. In other words, pronouncements of the Constitutional Court are only applicable inter partes,and not erga omnes. This contrasts sharply from many other Commonwealth jurisdictions. For example, article 141 of the Indian Constitution  mandates that law declared by the Supreme Court is binding on all courts within the territory of India.[8] The inability to invalidate laws signifies that unconstitutional affairs reign with impunity, until they are removed by Parliament. All the Constitutional Court can do is find a violation inter partes.

Therefore, Malta suffers from a paradox where the Constitution, which is expressly supreme, can be easily undermined, whilst the Constitutional Court’s decisions, which are the final guardian of the Constitution’s contents, lack supremacy. This has also led to a pendency of cases, particularly those pertaining to  human rights with analogous legal facts. In this regard Malta, has faced criticism for breaches of rights from numerous quarters. For instance, in relation to the right to property, the European Court of Human Rights (ECHR) found 6 breaches in one week .[9]  When one considers that each individual applicant underwent the rigorous process of initiating a case, facing an unfavourable outcome at the First Hall Civil Court, subsequently appealing to the Constitutional Court, and further pursuing an appeal to the ECHR, it is evident that it is tedious task and causes continuous violation.  Former Judge at the European Court of Human Rights (ECHR), Giovanni Bonello ,states that Malta is the only Constitutional Court that hands out “blank cheques of despotism” to the legislature to promulgate any law it so desires, without much constitutional scrutiny.[10]

In its 2018 Report, the Venice Commission  remarked that: “The execution of judgments of the Constitutional Court is an essential requirement of the rule of law. Leaving the choice of whether or not to follow the judgments of the Constitutional Court to Parliament does not live up to this requirement.”[11] In the following report of 2020, it suggested a middle ground, namely that the Constitutional Court’s judgements are applicable inter partes, however the House of Representatives has an obligation to effect the necessary changes to bring about a constitutional state of affairs within a specified time.[12] In the most recent European Commission Report, it was again noted that the Maltese government has no plans to effect the necessary changes.[13]

The author, who is currently a student, firmly holds that Parliament has the power to make laws. However, this power is “subject  to  the  provisions  of  this  Constitution, for the peace, order and good government of Malta in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligation.”[14]Therefore, any state of affairs contrary to this should be subject to rigorous scrutiny by the Courts as one of the principles of the separation of powers. Furthermore, if the Constitutional Court’s judgements are applied erga omnes, then it will further strengthen the idea of the independence of judiciary which is necessary in a constitutional democracy.

The Constitution is currently silent on the effects brought about by judgements which declare laws to be null and void. However, if supremacy of the Constitution is to be given actual meaning, so can the power of the Constitutional Court to effectively protect its content be assumed. In absence of any will or cooperation from the part of the legislator to remedy this defect, the judges on the Constitutional Court should step up to restore proper rule of law.

Authors

Laura Chetcuti Dimech  Vice-President – Għaqda Studenti tal-Liġi (Malta Law Students’ Society)University of Malta and YCLA representative for Malta ; and

 Siddharth Sijoria, YCLA Co-Chair and representative for India

FOOTNOTES

[1] J.J. Cremona, Selected Papers 1990 – 2000, ‘Birth-Pangs of a Republic: Section 6 of the Maltese Constitution.’

[2] Constitution Articles 95(2)(d)(e)

[3] Article 6

[4] Giovanni Bonello, ‘How the Constitutional Court betrays Malta’s Constitution’ (Times of Malta, 19 May 2013) < https://timesofmalta.com/articles/view/How-the-Constitutional-Court-betrays-Malta-s-Constitution.470259> accessed 14 December 2023.

[5] Austin Bencini, ‘The Constitution: our common sense of democracy’ (Times of Malta, 28 January 2018) < https://timesofmalta.com/articles/view/20180128/opinion/The-Constitution-our-common-sense-of-democracy-Austin-Bencini.669089> accessed 14 December 2018.

[6] UK Human Rights Act, 1998

[7] John Stanton, ‘The Constitution Of Malta: Supremacy, Parliament And The Separation Of Powers’ (2019) 6(1) Journal of International and Comparative Law, pp. 47-73.

[8] Indian Constitution, Article 141.

[9] Matthew Xuereb, ‘Malta slammed six times over old rent laws’ (Times of Malta, 19 November 2023) < https://timesofmalta.com/articles/view/malta-slammed-six-times-old-rent laws.1068273#:~:text=Malta’s%20old%20rent%20laws%20were,of%20their%20properties%20without%20hindrance> accessed 16 December 2023.

[10] Giovanni Bonello, Misunderstanding the Constitution (2edn, BDL Publishing, 2019) 177.

[11] European Commission for Democracy Through Law, ‘Opinion On Constitutional Arrangements And Separation Of Powers And The Independence Of The Judiciary And Law Enforcement’ (Council of Europe, 17 December 2018) § 77.

[12] European Commission for Democracy Through Law, ‘Opinion On Proposed Legislative Changes’ (Council of Europe, 19 June 2020) § 83.

[13] European Commission, 2023 Rule of Law Report (European Commission, 5 July 2023) 22.

[14] Constitution, Article 65.