The moment you come across ‘non-exhaustion of remedies’ in any judgment by the Maltese constitutional courts, know it’s time to activate your bullshit detector alarm.

Over 61 years, a good part of the Maltese judiciary has proved itself relentless in its commitment to misapply constitutional norms to subvert the constitutionally guaranteed rights of individuals.

But, in misusing an inexistent non-exhaustion ‘rule’, they have scaled all the Everests and beyond, to frustrate many victims of human rights abuse and to let many human rights predators off the hook.

This is how it works: persons who deem themselves victims of human rights violations by the authorities hire a lawyer to seek redress in the constitutional courts.

The state advocate almost routinely pleads that other remedies were available to the applicant – what shameless cheek for the victim to disturb the constitutional courts.

I hardly blame the state’s lawyers for repeatedly pushing their luck, with droning regularity, seeing how many judges eagerly gobble the bait.

The courts then, just as monotonously, repeat that “the constitutional judiciary is a court of last resort which should be addressed only most exceptionally. The rule is that all other possible remedies have to be first exhausted before a constitutional court will look at your complaint”.

The court then slaps the applicant with rafts of precedents lifted from the Strasbourg European Court of Human Rights (ECtHR) to the effect that victims cannot ask for its protection unless they have first exhausted domestic remedies.

Right? No, wrong. Wrong in dazzling florescent neon glow. Abysmally mistaken on both counts.

The Constitution ordains exactly the polar opposite of what it is misquoted as requiring. And the brandished Strasbourg case law on procedure is not only irrelevant but often toxic when transposed uncritically into the local scenario. We will come to that later.

For the reader to know I’m not making this up, listen to the cocksure pomp and solemnity with which some Maltese constitutional courts blurt out constitutional heresy. One of the latest of the many: “This court religiously follows the rule that no use should be made of the constitutional procedure without first exhausting ordinary remedies. The practice has become too common in this forum for anyone deciding to institute a constitutional case without realising that this is a special and exceptional means that should not be wantonly abused.”

Now, which pond of inanities did they fish this nonsense from? Thankfully, the Constitutional Court, succumbing to irreligious temptations, revoked this recent religious judgment, all the more puzzling as the Constitutional Court had, in 2014, already established wise, clear and rational guidelines as to what remedies should be considered sufficiently “efficient” for the Civil Court to invoke ‘non-exhaustion of ordinary remedies’ and unprotect the victim.

The matter is regulated by Articles 46.1 and 46.2 of the Constitution. Have some courts ever bothered to read and attempted to understand them? Those constitutional norms, clearly and emphatically, ordain exactly the opposite. They state, as a first imperative, that persons who allege that their human rights have been or are likely to be violated in the future, shall apply to the constitutional courts (Civil Court, First Hall) for redress. That is the rule.

To make sure that even retarded morons understand what some judges fail to – which is the ordinary court to which your human rights complaint should be addressed – the Constitution then spells it out: “The Civil Court, First Hall, shall have original jurisdiction to determine any application made by any person” to protect his or her human rights which have been or are likely to be violated in the future.

Which pond of inanities did they fish this nonsense from?- Giovanni Bonello

Can it conceivably be clearer than that? It is the constitutional courts that have “original jurisdiction” to adjudicate any human rights complaint. When ‘constitutional courts’ are mentioned here, the reference is to the First Hall of the Civil Court.

To this, the Constitution then adds a proviso (an exception). The court may (exceptionally), if it considers that adequate means of redress are or have been available to the complainant, decline to grant remedies.

The Constitution mandates that the constitutional courts may, but only exceptionally, not give remedies only if “adequate means of redress” are available under other laws. If, for example, the victim could but fails to appeal a judgment to a court that has power to grant a full remedy, then the constitutional courts would be justified to refuse to consider the case because an appeal was, very obviously, an “adequate means of redress”. And in few other cases too.

There are two forms of redress which human rights violations should attract as a bare minimum – firstly and indispensably, a formal declaration from a judicial authority that the victims have suffered a violation of their fundamental constitutional rights.

This acknowledgement of violation is an imperative, an integral, part of the remedy, and without it there simply is no remedy. No other court, board or tribunal, other than the constitutional courts, has the power to issue this declaration of violation.

Consequently, any ‘redress’ those courts, tribunals or boards purport to offer should, by its very nature, not qualify as an “adequate means of redress” since it lacks this imperative, number one, element – a declaration of violation. A ‘remedy’ that comes without a declaration of violation therefore need not be attempted.

Another crucial form of redress for the violation of some human rights should be the possibility of award of ‘non-pecuniary compensation” – read, moral damages for pain and suffering. No court, board or tribunal other than the constitutional courts has any power to award moral damages.

Any so-called redress from them, which excludes in advance any possibility of the award of moral damages, should, of its very nature, never amount to “adequate redress” and therefore need not be attempted.

Article 46 of the Constitution blows to smithereens all this nonsense-on-steroids that taking your human rights complaint to the Civil Court should be a course of action absolutely extraordinary, to be resorted to only as a last option in the most exceptional cases.

No, the Constitution ordains exactly the opposite: it proclaims, and very emphatically too, that the ordinary, minimal, everyday forum for human rights complaints is the Civil Court and only most exceptionally may (not must) the Civil Court do a Pontius Pilate and wash its hands.

Despite this blinding clarity, we have had to witness the courts repeatedly pulling the Constitution inside out and (or is it to?) shortchange the victim. What should obviously have been the rule (constitutional cases in the constitutional courts) some judgments have now corrupted into being the impossible exception, while what was just as evidently meant to be the exception has now been hyped into a monstrous, insane ‘rule’ that ultimately denies any joy to human rights victims but offers plenty of joy to human rights predators.

In practice, many courts, indignantly and disdainfully, con out of any form of protection those victims of human rights abuse who apply to the civil courts – where the Constitution expressly directs them to apply – because they “they failed to exhaust other remedies”. What a perversion of the constitutional architecture, meant solely to promote the protection of human rights and instead short-circuited by the state lawyers and some courts to achieve the diametrically opposite outcome – their defeat.

Yes, but hasn’t the ECtHR churned out cartloads of case law to the effect that no one can access it unless effective domestic remedies have first been exhausted? So, shouldn’t what’s good for Europe be good for Malta too?

Yawn and, then, yawn again. The ECtHR and Malta are governed by totally opposite – not different, opposite – regimes. Malta is a sovereign state and the Maltese courts are sovereign courts while the ECtHR is a subsidiary court that is only tolerated to encroach into the sovereignty of the individual member states if and when they have failed to redress a human rights violation after the victims have tried their utmost in their own country to obtain redress domestically.

The ECtHR invades national sovereignty but it is only allowed to do that after the victim has first attempted, unsuccessfully, avenues of redress available in the contravening country.

This human rights holocaust has been going on almost from day one- Giovanni Bonello

Not to exceed its very restricted remit, the ECtHR will only touch a complaint if the victims have first endeavoured to access those sufficient remedies available in their country and have given the domestic state every opportunity to redress that violation inside their domestic jurisdiction, before external interference can snap in.

Exclusively after domestic remedies have been attempted, will the Strasbourg court consider invading the sovereignty of a member state.

That is why the ECtHR, very rightly, insists that domestic remedies should first be exhausted, that is why it applies this rule with the utmost severity. For Maltese courts to quote Strasbourg case law when they operate in a scenario that is the very antithesis of the Strasbourg court is as relevant as studying hairdressing to become a neurosurgeon but far more absurd.

Strasbourg case law is a godsend for our courts when it explains human rights but a curse when they quote and rely on decisions only meant to regulate the international court’s internal procedure.

The ECtHR’s procedural case law is only to be adopted when it promotes the protection of human rights, not when it undermines that protection.

Those irrelevant foreign procedural decisions do serve a purpose – they give some Maltese courts an excuse to salivate over them. That inapplicable Strasbourg case law allows them to look the other way while the most mighty of oppressors is mauling the most fragile of victims. Imma l-aqwa li ħlisna min kawża taħraq. What more can one want?

Bottom line: victims of human rights violations are kicked out of court by some outraged judges and, as an added bonus, are also punished to bear the costs of the case. The victims’ lawyers are slapped with a certificate of professional incompetence (your useless lawyers didn’t even know which court to file your claim in, how clueless of them).

At the same time, the human rights predators triumphantly walk away from the so-called courts of justice with a smirk on their face the depth of the Mariana Trench, giving the middle finger to their victims, thanks to a superlatively dumb case law now being “religiously” corralled on the side of evil, obstinately determined that no victim of that evil shall go unpunished.

Article 46 was inserted in the Constitution to guarantee the protection of human rights. The lawyers of the state and some courts have demeaned it to ensure the very opposite: the waterproof impunity of violators of human rights.

There are two actors in every human rights action: the victim of the violation and the author of that violation. Is one permitted to remind the courts, very discreetly, that they are there to protect the victim of the violation, not to assist the author of the violation to get away with it?

This is the very betrayal of their oath of office.

Let me make one thing clear. This human rights holocaust has been going on almost from day one. Constitutional protection and constitutional courts have been around for 61 years, both eligible for Kartanzjan. And it has nearly always been like this. Do not blame the present judges if, propelled by the force of inertia, they perpetuate the same inanities over and over and over again – some do a great job and it should be everyone’s duty to salute them. Others meekly follow precedent, lethal as it undoubtedly is.

Duplicate mistakes often enough and they morph into precedent, to be observed “religiously”. Repetition seems to have the virtue of alchemizing silliness into wisdom.

That courts can make mistakes reads like an almost hollow truism. What proves particularly disturbing is that, in the span of 61 years, I am not aware of many mistakes by the constitutional courts that ended favouring the victims of human right violations. Those ‘errors’ have, systematically and frequently, favoured the powerful state riding roughshod over the feeble victim and ensuring the impunity of the wrongdoer.

But these recurrent patterns of unredressed oppression ‘by mistake’ must surely be due to coincidence, mustn’t they?

Join me in a requiem for Article 46, the most relentlessly sodomised provision of the Constitution.

Giovanni Bonello served as judge of the European Court of Human Rights for 12 years and authored the bestselling ‘Misunderstanding the Constitution - how the Maltese judiciary undermines human rights’.