The President of the Constitutional Court, Silvio Camilleri, took strong exception to what I said recently during the President’s Forum on the Constitution (May 12, 2013). He accuses me of “denigrating” the Constitutional Court.
No other Constitutional Court I know of has surrendered so alarmingly its sole institutional function
Now that is just not fair. The Constitutional Court does not need any help from anyone to feel demeaned. It has proved most accomplished at demeaning itself. It could not have let down the country and it citizens more spectacularly than it did, from its very inception to the present day.
It would be convenient to split into two a review of the Constitutional Court: pre-1987 and post-1987. Before 1987, it had generally become the squalid, craven accomplice in the most heinous abuses that characterised those troubled times. It rubber-stamped, almost as a matter of course, the worst outrages against the Constitution and against human rights.
It appeared to nourish this religiously-held belief that its function was to give credibility and ‘legitimacy’ to what was revoltingly reprehensible, and in its pursuit of utter subservience, it rarely faltered.
It encouraged the craving for abuse in those who needed little encouragement. It repeatedly sent out the message that the Court would not stand in their way, so please do not let such trivialities as human rights distract you. Thankfully, there were laudable exceptions, but rather few.
Ultimately, the most iniquitous culprit against democratic decency in Malta during that period was not the government, but the Constitutional Court. It had (and should still have) the specific function to curb those excesses but, in fact, preferred to endorse them. The Constitutional Court is excellent at reading the small print. It just fails to read the writing on the wall.
In 1981, I had documented in a long and very detailed study how the Constitutional Court had consistently cheated on its functions and on the nation – how it had shored and bolstered the abusive and the illegitimate. In those days, such were the chilling effects of intimidation and the pressing need to keep your head below the parapet, that no one, but no one, found the courage to publish it. And that book did not cover the more catastrophic collapse of the Constitutional Court between 1981 and 1987.
Many thrash Dom Mintoff for having suspended the Constitutional Court for almost three years. One could see that as his finest contribution to the promotion of human rights in Malta.
With the return of ‘normality’ in 1987, the Constitutional Court no longer laboured under the constraints of institutional intimidation, but very little changed all the same. Perhaps by force of habit, it went on reneging on its responsibilities with inspired abandon. Since then, it has worked hard, to borrow a fine phrase from Fr Joe Borg, to protect the unconstitutional over the constitutional.
This is hardly my imagination. The statistics, bleak as they are, speak for themselves. The European Court of Human Rights has reversed 85 per cent (right, 85 per cent) of the judgments of the Maltese Constitutional Court it has been called upon to re-examine on the merits.
That court, composed as it is of seven or 17 judges, has found that in 85 per cent of these cases the Constitutional Court of Malta had let human rights down. It had sided with those who wielded power, against the victims of abuse of power. It had preferred the violation of human rights to their protection. It had encouraged the perpetrators of human rights abuse in the belief that they were right, or that, anyway, they could get away with it.
It is not I who am demeaning the Constitutional Court. It has been very diligently doing it all along on its own. Eighty-five per cent of those who should have had their rights upheld by the Constitutional Court had them betrayed by it. Having this inordinately high percentage of its judgments rubbished by the supreme court of Europe hardly gives it the right credentials to paste patches on a reputation so visibly in tatters, or to implore respect. Malta’s is probably the most debasing record in the whole of Europe, in the annals of the European Court of Human Rights.
But perhaps its best exertions at demeaning itself the Constitutional Court has reserved for its capitulation in the face of Parliament. The belief held by the Constitutional Court that Parliament is the supreme power of the land is deeply mistaken. In Malta (and in almost all democratic countries) it is the Constitution that is supreme – above anything else. And the Constitution has expressly made the Constitutional Court its voice. It is the Constitutional Court, not Parliament, which determines whether laws are inconsistent with the Constitution, and therefore void.
Parliament legislates, yes, but “subject to the Constitution”. The Constitutional Court has the express function to exterminate any legislation it finds to be in violation of the Constitution of Malta. When the Constitutional Court determines that a law violates the Constitution, that law is, by sole virtue of that declaration, voided and extinguished.
But, through the connivance of the Constitutional Court, that unconstitutional law remains in force, awaiting the leisure and pleasure of Parliament in repealing it. If Parliament is not in the mood to repeal it (as has so often happened) the anti-constitutional law remains valid and enforceable. That means the Constitutional Court has suffered Parliament to make itself supreme to the Constitution and to the Constitutional Court, in matters of the validity of laws it has itself enacted. Malta is today ruled by constitutional laws, and by unconstitutional laws.
Trampling with manic fervour all over the most precious value enshrined in our basic law, that of the supremacy of the Constitution, the Constitutional Court has now imprisoned itself inside a perverse, suicidal doctrine: that it cannot do anything about laws which it finds to be in violation of the Constitution; that only Parliament is the arbiter as to whether Malta should by ruled by constitutional laws or by anti-constitutional laws; that it is still bound to apply and enforce those laws which it had determined to be anti-constitutional laws; and that the selfsame law can be constitutional and unconstitutional at the same time.
That court’s principal institutional function should have been to reverse any unconstitutional behaviour by Parliament and by the executive. Its only raison d’etre was to protect the Constitution against what savages it, against encroachments by the political powers. It reacted to the trust the Constitution placed in it... by telling Parliament that politicians can do what they like, when they like, how they like, as the Constitutional Court is powerless against parliaments that wound the Constitution, and is anyway looking the other way.
I have given long, detailed, juridical arguments why the Constitutional Court is spectacularly wrong in asserting it has no power to void anti-constitutional laws and that only Parliament can do that, if it feels inclined to do it (it generally does not feel inclined). My paper can be found on www.president.gov.mt (The Supremacy Delusion). I do not believe that a Sunday newspaper is the best forum to discuss technical legal issues. At the President’s Forum I could only, at best, give a rather summary abstract of my reasoning.
At present, Malta still enforces many laws which the Constitutional Court ages ago struck down as unconstitutional, and which Parliament, over the years, has not cared to repeal. And the courts still apply all those anti-constitutional laws which the Constitutional Court has found to violate the supreme law of the land. Paradoxically, it is the belief of the courts that, if you breach a law certified by the Constitutional Court to be an anti-constitutional law, you are in sizzling trouble.
The Constitutional Court still has one claim to recognition. It is possibly the only Constitutional Court in the whole democratic world that has abandoned in the hands of politicians any say as to whether anti-Constitutional laws should remain valid and enforceable, making it clear to them that, whatever they decide is of no concern to the Court, so they might as well retain those anti-Constitutional laws if they fancy them enough or believe they have more pressing matters to attend to. No other Constitutional Court I know of in the whole world has surrendered so alarmingly its sole institutional function.
Malta has been supremely lucky in that, so far, no government seems to have realised the full potential of the certificate of impotence the Constitutional Court has awarded itself. That court has encouraged governments and parliaments to ignore the Constitution, it has emboldened them to enact anti-constitutional laws to their hearts’ delight, as the Court has reassured them that in Malta there is now no authority that will invalidate anti-constitutional abuse, however grievous.
One day, some rogue Parliament will cash the blank cheque it has been handed by the Constitutional Court and will legislate systematically to destroy constitutional values and human rights. When that happens (it’s a miracle it has not happened so far) we will then be marching resolutely towards full dictatorship. We will only have the Constitutional Court to thank. It has made Malta safe for constitutional and human rights violators.