Legal (un)certainty in Malta

Professor Luzius Wildhaber, Judge and President of the European Court of Human Rights, was in Malta a few days ago. He delivered a lecture at the Aula Magna and met the members of the Chamber of Advocates at the Casino Maltese.

In our forthcoming articles we'll have the opportunity to recall his lecture and to analyse some important judgments of the court over which he presides together with other judges, including Malta's Giovanni Bonello, who accompanied Professor Wildhaber here in Malta.

Unlike other instances where human rights discourse is concerned, attendance at these occasions was rather positive and favourable. It is perhaps safe to say that even our lawyers, magistrates and judges seem to develop a keen interest in human rights per se. This is not to say that no matters have remained unsettled within the judicial arena.

Dr Anna Mallia, on behalf of parents of illegitimate children, commented after Professor Wildhaber's lecture, stating that discriminatory legislation affecting the inheritance of such children was still in force, despite being declared null and void by the First Hall of the Civil Court in its constitutional jurisdiction according to Article 3 (2) of Chapter 319 of the Laws of Malta on January 17, 1997, in the case Mario Buttigieg pro et noe versus the Attorney-General et.

Dr Mallia, besides noting that the court ordered that a copy of the judgments be sent to the Speaker of the House of Representatives, pointed out that these parents are still awaiting Parliament to amend the discriminatory legislation in the Maltese Civil Code (Chapter 16 of the Laws of Malta).

In a letter addressed to Professor Wildhaber in his capacity of President of the European Court of Human Rights, Dr Mallia explained: "Parents who have legitimate and illegitimate children cannot bequeath their inheritance equally to all the children. The Maltese Civil Code does not allow them to do this and they can only bequeath to them one-third of the legitimate due to their legitimate children (Articles 602 and 640 of the Civil Code).

"The Maltese Civil Code also discriminates between legitimate and illegitimate children in the case of testate and intestate inheritance (Articles 641 to 646 and 817 to 824 of the Civil Code). The Court in fact concluded that "l-artikolu 602 abbinat ma' l-artikolu 640 kif ukoll l-artikolu 822 tal-Kodici Civili jilledu l-Artikolu 14 u 8 tal-Konvenzjoni Ewropeja kif ukoll l-ewwel artikolu ta' l-ewwel protokol ta' l-istess konvenzjoni u ghalhekk tiddikjarahom nulli u bla effett ai termini ta' l-artikolu 3 (2) tal-Kap. 319 tal-Ligijiet ta' Malta".

Dr Mallia pointed out: "However, after endless attempts to bring to the attention of the Maltese Parliament the decision of the Constitutional Court that the provisions of the Civil Code above mentioned need to be deleted, Parliament has, so far, ignored my clients and the Constitutional Court."

This is not the only instance where laws have been declared anti-constitutional by our constitutional courts, but have, until today, remained in vigore. For example, in a separate discussion with Dr Anthony Ellul and Dr Frank Cassar just after the lecture, both lawyers also pointed out to one of the writers of this article that they, together with Judge Giovanni Bonello (then still a lawyer), had represented Victoria Cassar in her case against the Malta Maritime Authority decided by the Constitutional Court on November 2, 2001.

In a 50-page judgment the Constitutional Court confirmed the First Hall of the Civil Court's decision and concluded that the applicant's rights had been violated, stating that regulations 13, 14, 16 and 17 of the 1993 Regulations dealing with Port Workers (Legal Notice 90 of 1993) violated Article 45 of the Constitution and Articles 3 and 14 of the European Convention on Human Rights, since these regulations discriminate on the basis of sex, and added that "kull distinzjoni fuq il-bazi ta' l-istess (referring to sex) ghandha tigi dikjarata nulla u bla effett".

It therefore declared these regulations are null and void. The Constitutional Court also ordered the Board of the Port Workers to permit the registration with the Port Workers and as a port worker of the applicant Victoria Cassar with retroactive effect, that is, as from August 1, 1992, to satisfy the requirements of Regulation 11 (3) of the Legal Notice 90 of 1993.

As of today, these regulations have not been amended, and Victoria Cassar's name has not been included in the Port Workers' Registry. It looks like our parliamentarians should remember that justice should not only be done "but should be seen to be done", and that even they have an important role to play in the pursuit of justice because justice is only done if just and fair laws are promulgated and enforced.

Dr Marse-Ann Farrugia, in the 1997 (Volume 1, Number 2, pages 105-119) edition of the Mediterranean Journal of Human Rights, in an article entitled "Sexual Discrimination: Recent Judicial Developments and their Effects in Maltese Law," referred to the judgment of the Constitutional Court dated February 22, 1996, in Paul Stoner et vs The Hon. Prime Minister et, where the court went so far as to declare a provision of the Maltese Constitution protecting the right to freedom of movement as being discriminatory on the basis of sex under another provision of the Constitution.

Thus, a provision of the Constitution was itself declared unconstitutional; and all this in the light of Article 6 of the same Constitution which expressly states that, as Judge Bonello emphasised in his speech, "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".

The Constitution is thus supreme under Maltese law. Dr Farrugia held that "it could be argued that the term law in Section 45 (1) of the Constitution could include as well another provision of the Constitution, which is also law, albeit the supreme law of the land". She further notes that the phrase "any other law" used in Article 6 cited here above, clearly denotes that it is excluding the Constitution itself in the definition of law.

She adds that this seems to suggest that it is not possible to annul any provision of the Constitution on the basis that it is in conflict with another provision of the Constitution, and that this is further confirmed by Article 45 (7) of the Constitution itself, which was not considered by the Constitutional Court in the Stoner dictum.

Undoubtedly, she adds, "the Stoner case raises several doubts about whether it is possible to declare a particular provision of the Constitution 'unconstitutional', particularly if it is a provision on fundamental rights".

These doubts are likely to increase if Malta joins the EU in the light of the concept of Supremacy of EU law, which emanates from various judgments of the European Court of Justice (the EU's court), including NV Algemene Transporten Expeditie Onderneming van Gend en Loos vs Nederlandse Administratie der Belastinger 1963, Flaminio Costa vs ENEL 1964, Internationale Handelgesellchaft mbH VS Einfuhr- und Vorratstelle fur Getreide und Futtermittel 1970, Amministrazione delle Finanze dello Stato vs Simmenthal SpA 1978 and R vs Secretary of State for Transport , ex parte Factortame Ltd.et. 1990.

Judge Bonello rightly held, during the lecture delivered by Professor Wildhaber, that he can hardly conceive of a court which applies a law which has already been declared to be unconstitutional by our Constitutional Court. However, in the name of legal certainty, our parliament would not do any harm if it decides to discuss and amend provisions of our laws which are unconstitutional.

What would have been the point of our judges to order that a copy of the judgment be handed over to the Speaker of the House of Representatives? As of today, Parliament seems to be reluctant and hesitant to consider such issues.

It should however recall that it is our legislative body, and its priority is to promulgate laws which are fair and just laws, and when such laws are unjust, have them amended or repealed. Who knows, maybe EU membership will act as a catalyst for Parliament to ensure that it gets its priorities right.

In fact, two important and connected concepts within the EU legal system, namely those of 'legal certainty' and 'legitimate expectations', can, and hopefully will, solicit our parliamentarians to ensure that all our legal provisions, especially those of the Constitution itself, are fair, just and constitutional.

A legal maxim states ignorantia juris neminem excusat (ignorance of the law is no excuse). Maybe it's about time we refine this maxim, or better, introduce another one which we, the citizens of this country, should affix by the main door of the Palace: "Ignorance of our Constitutional Court's judgments is no excuse!"