Legislative shortcomings

No one would deny that the best law is one that is concise, clear and certain. How many of our laws come close to that ideal? To date, we cannot provide a clear and certain answer to such a question.

Since 1980, we have had a law commission entrusted to review legislation, propose consolidation where necessary and ensure that language conflicts between the Maltese and English versions are resolved. It may also carry out other work assigned to it by the justice minister.

The present law commissioner describes the consolidation of legislation as “an ongoing project” rather than an annual exercise of legal repeals and updates. Indeed, it was only once, in 2014, that an exercise was carried out to clean up Malta’s statute book. The outcome was that 36 outdated laws and 116 legal notices were repealed. Another nine laws were consolidated. The spring-cleaning exercise, dubbed Repeals Day, was part of the government’s attempt to cut bureaucracy and simplify public administration.

We still have too many outdated laws in our statute book. File photo: Times of Malta

To come closer to the ideal of having concise, clear, and unequivocal laws, efforts must be made to improve our legislative framework and the efficiency of our justice system. The number of new regulatory authorities, the layer of government and the size of jurisdiction have exaggerated our country’s legislative load.

Growing complexity in society and international relations means we have more legislation than before.

The notion of law represents a basic conflict between two different needs, namely, the need for uniformity and the need for flexibility.

Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalised, citizens can plan their activities with a measure of certainty and predict the legal consequences of their conduct. This is even more necessary in the case of certain laws, notably the law of contract or property. Uniformity and certainty of the rules of law also bring stability and security to the social order.

We still have too many outdated laws in our statute book, with some of them sounding quite hilarious to the younger generations. Too many laws have served their purpose but are still to be found in our codified laws and can still technically be enforced. Others, still, might even appear to be in contradiction with other laws, not least the constitution itself.

Even more serious and confusing is when a law is declared unconstitutional by our courts and, yet, is left untouched by our legislator so that, again, technically speaking, our ordinary courts would still be obliged to apply and enforce it.

Good listing practices, sunset clauses for temporary laws, regular updates of quantifiable provisions of laws and eliminating frivolous government litigation are other suggestive measures that can enhance justice in our country.

In the meantime, the power of lawyers remains in the uncertainty of the law.

Mark Said – Msida