Human rights litigants applying for ‘interim measures’ from the constitutional courts have lately become the flavour of the month in Malta. Sadly, the resolve of constitutional courts to thrash their applications, with a fervour that verges on the manic, rarely lets them down.

Interim measures are provisional orders requested from the constitutional courts by plaintiffs in human rights actions who claim that their human rights are being, or are likely to be, violated.

They ask the courts to protect them temporarily before their lawsuit is finally decided, to stop an occurring violation from continuing or to prevent a threatened violation from actually happening.

The courts almost invariably raise their hands in horror and alarm. They routinely refuse to issue any preventive measures. As if! They repeat, with the jangling perseverance of a religious mantra, that “interim orders are extraordinary measures” to be issued only “in very exceptional circumstances” exclusively to “prevent irreparable harm”.

These courts throw at the applicant tons of cut-and-paste (and highly irrelevant) case law from the European Court of Human Rights in Strasbourg (ECtHR) to prove how right they are not to do anything about it.

They are not. They are wrong at the top of their voice. That is obfuscation gone berserk. I am compelled to summon all the respect I have for the courts and for some judges not to say: nonsense! I have the profoundest admiration for the non-pasteurised judiciary. I only begrudge those who are asleep at the wheel.

I want to make it perfectly clear that I am not criticising the judges who now put their name to these skewed decisions. They deserve unqualified appreciation and support. They are only following ‘precedent’, previous bad law until recently seemingly written in stone. It is the misleading ‘precedents’ that are wholly to blame. The judges are as much victims as the casualties they unprotect.  

This self-inflicted punishment of victims of human rights harm is one of the many we’ve now almost normalised.

The enjoyment of fundamental human rights by every person in Malta is governed primarily by two superior laws – the Constitution, on the one hand, and the European Convention on Human Rights, on the other. Are they carbon copies of each other?

In the substantive rights they protect, they can be very similar but in almost everything else they are based on entirely different and opposite concepts and norms. Quoting from the decisions of one to buttress the other is not unuseful – it’s insane.

Rule of thumb that rarely goes wrong: it generally makes great sense for the local courts to quote the ECtHR decisions in matters of human rights. It generally makes great nonsense to quote the ECtHR decisions in matters of its own procedure.

The most important, and relevant, difference between the Constitution and the European Convention is that the Constitution regulates, in a sovereign manner, a sovereign state. The Convention, on the contrary, constitutes a tolerated encroachment into the sovereignty of those individual states that have ratified it.

The Strasbourg European Court of Human Rights fundamentally acts as an intruder in the sovereignty of the member states. It is a subsidiary authority which is only allowed to trespass into the internal affairs of sovereign states after – repeat, after – a violation of human rights has already occurred and the sovereign state has failed to redress that violation. 

No access to the Strasbourg court is allowed before all remedies available in the domestic courts against the violation have been exhausted.

According to the express wording of the Constitution, preventing future violations of human rights should be the primary function of the courts- Giovanni Bonello

It is only after a violation has already happened that the European Court is permitted to interfere to redress that violation. That court has almost absolutely no power to prevent a future violation from happening. Fail to understand this and you’d better stick to gardening.

But does the ECtHR sometimes issue interim measures? Yes, though only limitedly to special circumstances and for reasons entirely distinct from the domestic scenario. We will come to that later.

How different all this is from our Constitution. According to the Constitution (Article 46.1), the constitutional courts in Malta have three clear and primary functions: to redress violations of human rights that have already happened, to put a stop to violations that are actually still happening and to prevent violations of human rights that are likely to happen in the future. Am I the only one who has never found these three most basic (and distinct) norms spelt out in any judgment of our constitutional courts throughout the 61 years of their history?

Our Constitution mandates, and unambiguously, that preventing future human rights violations from happening is not, as some of our courts doggedly and embarrassingly regurgitate, an “extraordinary measure” to be resorted to “only in exceptional circumstances”. On the contrary, according to the express wording of the Constitution, preventing future violations of human rights should be the primary, the minimal, the everyday, the ordinary function of the courts.

I doubt anyone in their senses would prefer the courts to allow a threatened violation of human rights to take place when the Constitution expressly commands the courts to act to prevent any violation that is likely to occur. What sense does it make for the courts to look the other way, to allow a violation to happen, when they are still in time to prevent it and then fumbling around to see how to remedy the very violation they could and should have stopped from occurring but did not?

The Constitution not only orders the courts to prevent future violations of human rights from happening. It actually confers on the courts the most unlimited powers to do so, without any restraints whatsoever. To make sure the courts prevent future violations of human rights from taking place and redress violations that have already happened, the Constitution empowers the courts “to make such orders, issue such writs and give such directions” that they consider necessary to prevent the future violation of human rights or to reinstate violations that have already happened.

I don’t believe any other law gives such vast, no, limitless powers to any other court as our Constitution gives the constitutional courts to prevent future violations of human rights.

Despite the clear duty the constitution imposes on the courts to block breaches likely to happen, despite the unrestrained powers the constitution confers on the courts to prevent likely future violations of human rights, most of our courts have, so far, almost invariably abdicated these basic obligations and slept on their mighty powers. Laudable exceptions have been few and far between.

And they make sure everyone notices how utterly they abandon their duties. Many judges prefer to let the ship sink, when it is still possible to keep it afloat, and then, after it has sunk, scratch their heads to find out if it is feasible to somehow refloat it. Irrational, anyone?

The Malta situation is exactly the opposite to that prevailing under the European Convention of Human Rights.

Differently from our constitution, which expressly orders the courts to prevent likely violations of human rights, the European convention, because of its subsidiary nature, on principle prohibits the Strasbourg court from preventing likely violations from happening. The convention only empowers the European court to interfere after human rights have already been violated and the domestic authorities have failed to prevent that violation or to redress it.

On principle, the European court can’t even start to touch a case unless human rights have already been breached. Differently from our constitution, the European convention does not even mention interim measures to prevent future violations because that would go frontally against its very reason for existence as subsidiary to domestic sovereignty.

Some Maltese courts, which have the express constitutional obligation and the means to prevent future violations of human rights, find a hundred squalid pretexts to wriggle out of their most elementary duty- Giovanni Bonello

Interim measures in the Strasbourg court (known as Rule 39) are not even contemplated by the convention but are merely judge-made law. Please note that they are only, only and exclusively, used to prevent feared violations of human rights being committed or threatened during the duration of some already pending Strasbourg proceedings. Only in these extremely limited and exceptional circumstances, to protect applicants from frustration of pending Strasbourg proceedings, do the judges take those extraordinary steps.

 Being very conscious of the convention’s subsidiary nature and cautious not to trespass upon national sovereignty, the European judges are on principle precluded from ordering interim measures when human rights are likely to be violated in a European country. But the judges (not the convention) have, very rightly, given themselves the power to protect applicants from urgent and irreparable harm occurring just before, or once they have opened, a case in Strasbourg.

At the same time, they have also established that they will only use interim measures as sparingly as possible, as an extraordinary measure, as a last resort and only in the most exceptional circumstances to prevent irreparable harm to complainants when they have submitted their urgent claim to Strasbourg. This, solely to prevent new violations of human rights happening during the hearing of the Strasbourg case. That explains why they are so miserly in issuing interim measures during the hearing of a case.

Malta, on the contrary, enjoys a wholly opposite regime, by which the constitution actually orders its sovereign courts to nip in the bud any likely future violation of human rights and confers on the judges all the almighty powers necessary to prevent in advance any expected violation of human rights.

 To quote the case law of the Strasbourg court – which, repeat, in principle only has the power to intervene after human rights have already been violated – in the Maltese courts, whose primary duty is exactly to prevent likely violations of human rights, is to compound the laughable with the irrelevant. Not rocket science, is it?

Some Maltese courts, following ‘precedent’, are gargling with the unrelated case law of an alien system to justify the very opposite of what our system expects of them. They are trying to solve one crossword puzzle with the clues of another. They are using a Polish/Hungarian dictionary to translate English into Maltese. Very helpful, no doubt.

It is lamentable to record how the Strasbourg European court, nowhere authorised by the convention to grant interim measures, has still contrived ways and means of issuing them while some Maltese courts, which have the express constitutional obligation and the means to prevent future violations of human rights, find a hundred squalid pretexts to wriggle out of their most elementary duty.

It is equally lamentable to record that the very first article of the constitution proclaims, with hollow discord, that Malta is a republic built on the respect for human rights. Courts of this republic built on the respect for human rights will allow you, with the utmost ease, to guarantee in advance the future payment of a sum of money but will then make it next to impossible for you to guarantee the enjoyment of your human rights. You have first to wait for them to be violated.

This is treason by misinformation against the constitution. This is the conspiracy of the shortsighted. This is decimated access to justice. And should you bother?

You should. Because tomorrow it could be you.

Giovanni Bonello served as judge at the European Court of Human Rights for 12 years and authored the bestseller Misunderstanding the Constitution – how the Maltese judiciary undermines human rights.