In the hierarchy of Maltese law, the constitution of Malta reigns supreme. Article 6, colloquially known as “The Supremacy Clause” lays down that if any other law is inconsistent with the constitution, the constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

Thus, the constitution sets out a statement of its own supremacy, separating itself from “any other” law, and therefore, by implication, from any ordinary law. Any other law, be it an act, code or subsidiary legislation (to name a few examples) is a legal subordinate of the constitution.  

It is, therefore, no surprise that the highest court in the Maltese judiciary is the Constitutional Court as established through article 95(2) of the constitution. The interpretation as to whether a law is inconsistent with the constitution falls within the jurisdiction of this court, particularly by virtue of sub-articles 95(2)(d)-(f). This court is akin to an appellate court, whereby aggrieved parties may seek constitutional redress when they are of the belief that a specific law is inconsistent with the constitution. If the court is satisfied with the arguments put forward, it may find a law unconstitutional.  

At face value, when one understands the categorical wording used in article 6, coupled with the jurisdiction of the Constitutional Court, the process seems relatively streamlined. However, even if the court finds a law unconstitutional, this does not automatically mean that the law in question is revoked. 

The Constitutional Court itself is not afforded the authority to revoke the unconstitutional law as this vires exclusively lies within parliament. The registrar of the court will forward the decision to parliament for its consideration, however, there is no clear obligation for parliament to act upon the decisions of the court.  

This obstacle ties in with the fact that decisions of the court apply inter partes i.e., between the parties in question and not erga omnes whereby it would be binding to all.

In simple terms, this means that if the court determines that a law is unconstitutional, it is technically unconstitutional solely within the context of that case alone.

This has led to a situation where the responsibility to preserve constitutional supremacy loosely rests on parliament to legislate the necessary amendments following a decision by the Constitutional Court. There is no written obligation for parliament to act, and there have been instances where the court has declared a law unconstitutional, however, the laws remain unamended. Moreover, there is no formal mechanism whereby the courts may monitor or bind parliament to act, often rendering constitutional judgments superficial at best.  

In fact, the Venice Commission had recommended this change in its 2018 Report on Malta where it specifically recommended the erga omnes effect of Constitutional Court judgments and obliging the parliament to repeal and amend provisions found inconsistent and therefore, unconstitutional within a limited time-frame.

Many constitutional decisions have little to no legislative impact- Alexandra Gaglione

Interestingly, however, the Maltese government at the time considered that enshrining the erga omnes application of Constitutional Court judgments would violate the established principles of the Maltese legal system which would give rise to undue complications which have hitherto been avoided.

However, one might argue that a written obligation or formal mechanism should not even be necessary given the clarity of article 6. Parliament immediately taking the necessary steps to legislative accordingly would be the rule of law taking its natural course of action.  

Unfortunately, this is far from reality, with many constitutional decisions having little to no legislative impact, to the detriment of the very subjects of that same constitution.

Thus, despite a supremacy clause and a constitutional court, the preservation of constitutionality lies within the legislative organ of the state, arguably adulterating the rule of law in the process.

While the Maltese legal system is, or rather, should be centred around constitutional supremacy, it is truly centred around parliamentary supremacy, as it is only the House that is afforded the authority to materially address unconstitutionality. 

For example, in 2017, a constitutional judgment declared certain provisions of the Competition Act as unconstitutional. This was followed by the necessary amendments made by parliament. On the other hand, another judgment in the names of Dr Spiteri vs Avukat Ġenerali dated 2003 found article 581 of the Criminal Code to be unconstitutional. Twenty-one years later, article 581 may still be found, unamended, in the Maltese Criminal Code.

A pattern of inconsistency may be found in the plethora of court decisions finding laws inconsistent with the constitution, and therefore, supposedly null and void.

This has also led to a number of inconsistent decisions by the same Constitutional Court where judgments contradict other judgments between different parties, as was the case in Ir-Repubblika ta’ Malta vs Alfred Camilleri. This subsequently triggered a number of inconsistent judgments that led to a massive upheaval, with an application signed by 40 criminal lawyers asking the European Court of Human Rights to rule on the illegality of statements provided by unaccompanied suspects at investigation stage due to the inconsistent application of the law in Malta.

The Maltese constitution is unique in the sense that, unlike many constitutions, it has a categorical supremacy clause, which ought to be respected. The inter partes application of judgments coupled with a pick-and-choose approach in amending laws deemed unconstitutional is arguably inconsistent and anomalous with the crux of our constitution. 

Alexandra Gaglione is a junior associate at Fenech & Fenech Advocates, where she is part of the Local Litigation Department.