Chief Justice Emeritus Giuseppe Mifsud Bonnici states: “The Constitution itself gives Parliament the right to make and unmake laws, which it has made. The Constitutional Court can declare a law to be invalid but it cannot abrogate or revoke any law as Bonello clearly expects it to do” (The Sunday Times of Malta, May 19). The reference is, of course, to Giovanni Bonello.
The march of human rights made us realise the importance of the supremacy of the Constitution
To Mifsud Bonnici, therefore, an unconstitutional law needs Parliament to abrogate it even if in violation of the Constitution. Yet Mifsud Bonnici’s view was not always so.
“The principle of the supremacy of the Constitution should imply exactly what it sets out to say: that nothing – no law, no force, not even the will of Parliament itself – should prevail over it.” Clearly, the power of Parliament to abrogate an unconstitutional law is ruled out because the law is already void.
This statement was made nearly 32 years ago by the Chamber of Advocates of Malta then presided over by Mifsud Bonnici himself. There were also Albert Manche, Franco Depasquale, Joseph Galea Debono, all later elevated to the Bench, and other eminent lawyers, in the presence of all of whom I felt totally in awe.
The Chamber denounced the thwarting of fundamental human rights by a clause in the Constitution ‘saving’ the contents of the principal Codes from constitutional review. The Chamber warned “the unconstitutional shall prevail over the Constitution”.
Thirty-two years later, the supremacy of the Constitution is no longer so threatened. The court ignores completely the still extant ‘saving’ clause. The march of human rights made us realise the importance of the supremacy of the Constitution. But we don’t seem to have learnt much. Now it is threatened by the semantics of supremacy!
Turning to the sitting Chief Justice who seems bedevilled by the Constitution’s use of “bla effett” (without effect), instead of the word “null”, in the supremacy clause.
Should constitutional supremacy depend on this semantic disquisition between “without effect” and “null”? According to the Oxford dictionary “null” means “having no legal or binding force – invalid”. So, wouldn’t an unconstitutional law being “without effect” also mean having “no binding force”?
The Constitution proclaims it shall “prevail” over any inconsistent law. The dictionary defines “prevail” as “to prove more powerful or superior”. Therefore, the Constitution is more powerful or superior than “any other law”. How this? By itself rendering that other law “without effect”, in the sense of having “no binding force”. Perfect!
The English version of the Constitution refers to an unconstitutional law as “void”. The Oxford dictionary defines void as “not valid or legally binding”, and the example is “a contract is not legally binding” and therefore void. Clear isn’t it?
Not to mention that the dictionary includes the illuminating American example: “The Supreme Court voided the Statute”. Indeed therefore, a ‘voided’ statute would not be legally binding.
The American reference is not accidental, since the very doctrine of constitutionalism originated in the celebrated case of Marbury vs Madison, in which it was stated: “The Constitution controls any legislative act repugnant to it, if a Constitution claims, by its terms, to limit the powers of the institutions it creates, including the legislature, its provisions must be surely regarded as of superior force to any rules or actions issuing from those institutions. To think otherwise reduces a Constitution and the business of Constitution-making a nonsense”.
Incidentally, the pedant may ask in which sense is “nonsense” used. The dictionary defines it as “no meaning” as in “the proposal would make nonsense of their plans”, to wit that of making Constitutions.
In 1803, the US Constitutional Court held that its “control over legislative acts” was “a proposition too plain to be contested”, and has remained so 210 years later.
Two Italian jurists have manifested dismay at the reductive interpretations given on constitutional supremacy by the Maltese courts: Cesarini states: “The concept of supremacy of the Constitution over ordinary law is implicit. Therefore, introducing a disposition which solemnly states the principle of the supremacy of the Constitution is to a certain extent, superfluous”.
This is confirmed by And “The supremacy of the Constitution, declared in article 6, is therefore nothing more than a declaration of principle.” Both expressed concern on conditioning a judicial declaration of unconstitutionality to the final word of Parliament.
Take Austrian constitutional law as an example: “A judgment annulling a statute or an ordinance or declaring the illegality of an international treaty is not enforceable because the annulment occurs eo ipso with the promulgation of the respective findings of the Constitutional Court judgments in the respective Law Gazettes.”
“Not being enforceable” proves that the court’s declaration of unconstitutionality of “any other law” requires no further abrogation by Parliament for it to become without effect, as contended by Bonello.
So since the supremacy principle “does not strictly need to be expressly stated”, why does not our Constitutional Court simply throw the dictionary away and hold any person found applying an unconstitutional law as in ‘contempt’ of the Constitutional Court’s “orders and directives”?
Austin Bencini’s Ph.D. thesis was on the ‘Supremacy of the Constitution of Malta’.