Giovanni Bonello’s excellent piece (January 7) regarding the Declaration of Principles contained in Chapter II of the Constitution of Malta rightly rejected the opinion, sometimes embraced by the Maltese courts, that Chapter II is merely a list of pious hopes not enforceable in a court of law, a mere cosmetic chapter even though contained in the highest law of the land.
To refute such an opinion, it is appropriate perhaps to examine how similar chapters have been interpreted in constitutions of other countries.
The first time a Declaration of Principles graced the constitution of a country was in 1937 with the promulgation the Irish Eire Constitution of 1937. In that constitution it was provided that the principles of social policy set forth in article 45 were intended for the general guidance of the Irish Parliament (Oriechtas). The application of those principles in the making of laws was to be the care of the Oirechtas exclusively – such principles were not to be cognisable by any court. This provision seemed to be watertight enough to prevent any reference to it by a court.
However, the Maltese provision, namely article 21, is based on article 37 of the Indian Constitution, and there the wording is different. The principles are deemed to be fundamental for the governance of the country (not mere general guidance) and they are not to be enforced in a court of law, rather than “not cognisable” by it.
Professor Durgas Das Basu, the most eminent Indian constitutional jurist and author of the 10-volume A Commentary on the Constitution of India, wrote that the courts in India were “not debarred from taking cognisance of the Directives as part of the Constitution for other purposes, e.g. for the purpose of interpreting other provisions of the Constitution or laws made by the Legislature” (Vol. III p 4016) (8th Edition 2008).
The Supreme Court of India has on several occasions ruled that the words “making of laws” used in article 37 (our article 21) is wide enough to include their interpretation. Therefore, in interpreting laws, the courts must have regard to the Directive Principles.
Moreover, the use of the word “fundamental” in article 21 certainly implies that the State has a duty, beyond a mere pious hope, to implement these principles. In one Indian case it was stated that the Directive Principles prescribe the goal to be attained, and the Fundamental Rights lay down the means by which the goal was to be achieved.
Chapter II and Chapter IV of our Constitution are therefore inextricably intertwined and do not have a separate existence. As stated by the Supreme Court of India, “the Fundamental Rights and Directive Principles constitute the conscience of the Constitution… there is no anti-thesis between Fundamental Rights and Directive Principles… and one supplements the other.” (Keshavaanda Bharati v State of Kerala (1973).
In the Minerva case (1981) the same court remarked that the Principles and the Fundamental Rights were “like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy… to give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.”
Too many incidents in the past based on this view have distorted the true meaning of the Constitution
In spite of these clear pronouncements by a court which interpreted a similar provision to our article 21 – which, 14 years later, the drafters of our Constitution imported lock stock and barrel into our Constitution – our courts have snobbishly shunned such an interpretation. In the Doctors case in 1977, when striking doctors in government service were perpetually prevented by law from exercising their profession in private hospitals, applicants rightly referred to article 7 of the Declaration of Principles, recognising the right to work, and article 12, which provides that the State shall protect work.
In this instance, the government was punishing doctors who had obeyed a legitimate directive of their trade union by preventing them from working in private hospitals even after their employment in the public service had been terminated. And still the Constitutional Court looked the other way and cynically dismissed the reference to Chapter II, since its provisions were not enforceable in a court of law.
What was worse was that this byzantine splitting of hairs did not prevent the Maltese Constitutional Court in the Demicoli case, years later in 1986, to hypocritically enforce a non-binding section of our Constitution to allow a restriction to a human right which did not allow any derogation.
Chapter IV of the Constitution contains a Preamble in article 32 which is not enforceable in a court of law. The court erroneously stated that the preamble’s provisions allowed it to apply a restriction of one human right to another human right, in a sort of cut and paste fashion. Consequently, even though the right to a fair hearing contained no exceptions, it was possible to take a restriction to, say, freedom of expression, and apply it to the right to a fair hearing.
Little did the court realise the danger of such a decision. Each right in our Constitution has its own set of restrictions. The exceptions to freedom of expression, for instance, are wider than those that apply to the sacred right to life. Applying the court’s warped argument, one could then restrict the right to life for the purpose of protecting public morals. Such an argument might be permissible in Afghanistan or Iran, but hardly in a country ruled by a Constitution based on the rule of law.
The day has still to dawn when the Maltese courts give some importance and meaning to the Declaration of Principles at least by serving as a beacon of interpretation. That is to say, the courts should recognise their right and duty to evolve, affirm and adopt principles of interpretation which will further the goals set out in the Declaration of Principles. Fundamental rights should be interpreted in the light of the Declaration of Principles and the latter should, whenever and wherever possible, be read into the former.
For instance, in deciding whether a law restricting a human right is permissible or justifiable in a democratic society it should be legitimate for the court to gauge such restriction on the basis of the Declaration of Principles. This would be in line with the so-called principle of harmonious construction of the Constitution: all parts of the Constitution have to be read together so that in the matter of interpreting the mandatory provisions, the court cannot ignore the Principles.
There is no need for a Second Republic to adjust this interpretation. What is needed is men of good will who avoid a positivist approach to law. Too many incidents in the past based on this view have distorted the true meaning of the Constitution. Such as when, in 1974, the supremacy clause of the Constitution was considered to be capable of being suspended by a simple majority of one; or when, in recent times, the apex Court in Malta ruled that when it decides that a law is in breach of the Constitution, such law is invalid only vis-a-vis the parties in litigation rather than erga omnes.
The Constitution is a living instrument, but it remains a document. It can only be brought to life though constructive interpretation by fearless men and women who give a proper meaning to words aridly found in the Constitution.