The judgment handed down by the UK Supreme Court declaring unlawful Boris Johnson’s decision to prorogue Parliament is what judicial oversight of the executive is all about.
It is a ‘must read’ for all politicians in democratic countries and an inspiration – a vade mecum, even – to members of the judiciary who consider themselves to be the ultimate protectors of law-abiding citizens.
On the home front, the manner in which Lady Hale, president of the UK Supreme Court, and 10 of her colleagues acted to deal with such a delicate issue raises serious doubts about how the courts in Malta operate.
The UK judges heard submissions on three consecutive days and delivered judgment just five days later. In contrast, a magisterial inquiry into the government’s transfer of three hospitals to Vitals Global Healthcare remains in limbo because, nearly two months down the line, a judge has still to decide on an appeal filed by three Cabinet ministers.
Of course, the UK Supreme Court was faced with a situation where time was running out with the possibility of delivering a judgment that would have been overtaken by events and would, therefore, be meaningless.
But even in the VGH case, time is also of the essence as it involves a request for an ‘in genere investigation’ to start, with the aim, among others, of preserving evidence. The law demands that the Criminal Court “shall decide on the application [of appeal] with urgency”. Still, the Criminal Court just sat on it and there is no indication when it will give judgment. Unfortunately, there appears to be no remedy against this inexplicable delay.
Two other ‘in genere investigations’ – on the sale of passports – have been pending for almost two years before two magistrates. The problem here appears to be one of resources but, surely, the Chief Justice can relieve them of some of their work so they can concentrate on these delicate cases.
The UK judges did not mince words in their judgment: “We are not concerned with the Prime Minister’s motive in doing what he did. We are concerned with whether there was a reason for him to do it.”
They recalled what had been declared in the 17th century, that “the King hath no prerogative but that which the law of the land allows him”. That also applied to Mr Johnson. And, indeed, to every head of State and of government where parliamentary democracy prevails.
Still, here the Prime Minister remains ‘King’, as the Venice Commission so eloquently pointed out in its latest report on Malta. It is the Prime Minister who is clearly the centre of political power, it remarked.
“In the constitutional arrangements currently in force in Malta, the Prime Minister is predominant. This, in itself, could be unproblematic if a solid system of checks and balances were in place... The predominance of the Prime Minister and the concentration of powers enabled by the Constitution shows that the system of checks and balances needs to be reinforced,” the Council of Europe’s advisory body on constitutional matters counselled. It recalled that Malta had inherited a British-inspired Constitution that was amended several times but did not follow the reforms undertaken in the UK as far back as the 1980s.
The rule of law would be that much stronger if our courts, too, occasionally reminded the Prime Minister he is not a ‘King’.