This short series will be dealing with what I, rather reluctantly, refer to as constitutional howlers. Our Constitution has been in place since Independence – over 50 years, that is. That was plenty of time to get to learn it, if not to love it. Generally speaking, we did neither. There have, time after time, been crass misunderstandings of its very basic concepts. It has often had its true values hollowed out, it has been demeaned, it has been rendered powerless, mostly by the very courts which the makers of the Constitution appointed to be its trustees. It was meant to be a powerful instrument for democracy, to promote transparency, good governance and the rule of human rights law. All in all they have been quite successful in defanging the watchdog.
I will be homing on only a few instances of this self-harm. Today I will reflect briefly on the “Declaration of Principles” contained in chapter 2 of the Constitution.
This chapter, placed towards the very beginning of our fundamental law, establishes the basic values on which the governance of Malta is to be based, like the right to work, the rights to social assistance and insurance, the protection of culture, of the landscape and of the artistic patrimony of the nation, the right to compulsory and free primary education, the promotion of private economic enterprise, and some more.
Parliament is almost sovereign to pass any law. Almost, because in making laws it has to respect some indispensable preconditions. These preconditions are that those laws must be (1) “subject to the provisions of this Constitution” and that they shall also be (2) “laws for the peace, order and good government of Malta” – article 65.
The Principles, and the Human Rights, are eminent among the “provisions of this Constitution” and so all laws passed by Parliament must be in conformity with them. Moreover, it is hard to see how any law can be deemed to be “for the peace, order and good government of Malta” if it is inconsistent with principles which are expressly set out to be “fundamental to the governance of the country”.
Any law passed by Parliament which does not respect the basic principles laid down by the Constitution is null and void.
Article 21, by which the chapter on the Declaration of Principles ends, then adds: “The provisions of this chapter shall not be enforceable in any court, but the Principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the state to apply these Principles in making laws.”
You would think that makes the purport of the Declaration of Principles perfectly clear: the Constitution does not want those principles to be specifically enforceable as private rights in favour of any particular individual, but considers them absolutely fundamental in the making of laws. Elementary, no?
The constitutional courts have been quick in hugging the first half of the proposition – those principles are not enforceable – but have failed to give the weight the Constitution called on them to give, to the second part – these principles are essentially fundamental and indispensable to law-making by Parliament.
The rot started after 130 doctors in government service were dismissed en masse in 1977. After their dismissal, a law was then passed prohibiting them from ever, then or in the future, working in private clinics and hospitals. The unemployed (and henceforth unemployable) doctors challenged this law, among others, on the ground that it struck against the very core of the doctors’ “right to work”, enshrined as a fundamental principle in article 7 of the Constitution.
A potent tool for ensuring good governance has languished, debased and unused, for over half a century
Forget it, said the spineless Constitutional Court that then rubber-stamped every abuse of power – the right to work is not an enforceable right! Very short shrift to it being a fundamental principle in making laws. What the constitutional courts of Malta said in practice is that laws which violate the basic principles established by the Constitution itself, are perfectly constitutional.
By then, the courts had fallen in love with their own impotence.
Given the craven and defeatist stance adopted by the courts on the uselessness and unenforceability of the Principles, no one, that I am aware of, has, since the doctors’ case, ever tried to challenge the validity of any law on the ground of its inconsistence with the principles. According to our constitutional courts, the Principles are a cute superfluity, they only voice pious intentions which the courts are then forced to disregard. Pretty verbiage, devoid of any legal weight.
But is that what the Constitution really means? Of course not. What article 21 means could not be simpler or clearer. It means that a person cannot sue the State to provide him or her with a job. That is what the Constitution means by saying that these principles are not enforceable in any court – there is no individual right for a person to have those values applied by the courts in his or her private favour. But then, that article, far more importantly adds that the legality of laws is to be established by reference to their conformity or otherwise with the principles it established, like the right to work.
Equally, a fundamental principle listed in the Principles is that “Primary education shall be compulsory and in State schools shall be free of charge”. This does not mean persons shall have the personal right to claim in court for their offspring to have free primary education – agreed. But what if Parliament were to pass a law making primary education no longer compulsory, or providing it only against payment? Does that mean that the law abolishing compulsory education, or ordering State schools to charge fees, cannot be challenged on the strength of the ‘Principles’? Doubtlessly it can – because those principles are “fundamental to the governance of the country and it shall be the aim of the State to apply those Principles in making laws”.
How can a law be constitutional if it goes against those very principles proclaimed by the Constitution itself to be “fundamental to the governance of the country”?
More examples: one principle mandates that “the State shall safeguard the landscape and the historical and artistic patrimony of the Nation”. If Parliament passes laws that, far from safeguarding the landscape, make it legal to violate it on a significant scale, I have no doubt that they could be successfully challenged on the ground that they are inconsistent with the provisions of the Constitution, which include, as a fundamental principle, the defence of the landscape.
Similarly, merely as examples. One listed principle orders the State to encourage private economic enterprise. Were Parliament to legislate in a way that undermines that principle in a significant way, any person would be entitled to challenge this violation in the constitutional courts.
The list of fundamental principles which Parliament has to respect in making laws, under pain of nullity, is quite long.
There you have it – a potent tool for ensuring good governance has languished, debased and unused, for over half a century. Thank those courts which dismissed these principles as valueless and scrap.
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