Giovanni Bonello: Misunderstanding the Constitution – How the Maltese Judiciary Undermines Human Rights
BDL Books
Legal literature in Malta has, over the years, expanded tremendously, both in terms of quality and in quantity. In decades past, legal literature was scant, and written by the same individuals on conventional topics. In recent years, though the authors remain somewhat predictable, the fields of law which these admirable individuals have chosen to write about have broadened, and include works on migration law, environmental law and media law among others.
The end of 2018 brought with it an Apollonian-Dionysian dichotomy of legal literature introducing as it did two new fields to the discipline: comedy and horror. First came Gustizzja bi Tbissima by Tonio Borg, a collection of humorous lawyer-related anecdotes, sourced by lawyers, primarily for the amusement of other lawyers. Borg’s book shares with its readers the more private and humorous side to court and from the amount of chatter around Valletta following its publication I deduce that it has been well received, at least by other lawyers. Indeed, at the outset, the book was intended to do one thing and it does it well, though, be that as it may, even after having read the book, my own conviction remains unaltered.
But, as it transpired, the light-hearted nature of Borg’s book was destined to serve a greater purpose. Shortly after its publication, the Apollonian contender to the proposition was published in the form of Misunderstanding the Constitution, an indictment of the Maltese judicial system and the often-frightening condition of Malta’s human rights record, by Judge Emeritus Giovanni Bonello. Maltese lawyers must have still been chuckling their way through Borg’s anecdotes when it became abruptly and painfully apparent that, in truth, there’s very little to laugh about after all.
With the exception of the foreword by Chief Justice Emeritus Vincent De Gaetano and the introduction by the dean of the Faculty of Laws, Professor Kevin Aquilina, the contents of Bonello’s book have been in circulation for some time. Misunderstanding the Constitution is an anthology; a collection of 21 case commentaries published periodically in the Sunday Times of Malta between January and October 2018. Individually the articles do not appear to have had the desired effect. But, as is often the case with anthologies, the cumulative effect created by collecting the commentaries in a single publication has successfully driven the message home with the book enjoying a string of positive reviews which will hopefully serve to reinforce the book’s message and widen its circulation.
Misunderstanding the Constitution is written in an enjoyable manner and, while often elaborate, is clear enough to be read by the lay person without eliciting any more fear than is strictly necessary or intended. Bonello employs humour frequently, however it is clear that this is nothing more than a technique to mask his bewilderment and frustration. This is to be expected when writing about how 85 per cent of the constitutional court’s decisions are overturned by the court in Strasbourg and about how freely the constitutional court continues to misconstrue the provisions of the Constitution notwithstanding.
Bonello employs humour frequently; however, it is clear that this is nothing more than a technique to mask his bewilderment and frustration
I particularly enjoyed the third chapter of the book. In this chapter Bonello discusses the constitutional court’s insistence that it is a court of last resort and that potential victims of human rights violations should first exhaust ‘ordinary remedies’ before they dare set foot on its doorstep. The fact that human rights cases are often thrown out by the constitutional court for this reason was not news to me, yet I was no less disgusted by the examples which Bonello brought to light. One example which Bonello brings relates the plight of workmen who contracted asbestosis while working at the government docks. The condition is life-threatening and so the workers naturally sued the state for a breach of their right to life. However, as Bonello put it, “the constitutional judiciary laughed their claims out of court in record time” and even condemned the ill men to pay the court costs. The judges of the court stated that the reason the case was being thrown out was that the workers had failed the sue for ordinary damages in the ordinary civil courts.
A case which I had never heard of, and which I discovered through Bonello’s book is the case of Edward Ferro, discussed by Bonello in chapter 12. Ferro had purchased a property for his daughter but not long afterwards the property in question was requisitioned by government in order to be used for a noble purpose: the residence of the housing minister’s canvasser. Ferro, justifiably outraged, took the matter to court, complaining that he had been evicted from his property. The Court, by employing a legal fiction, decided that since the property in question belonged to the government following the requisition, Ferro was unable to argue that he had been evicted from his property since the property was no longer his. Just like that Ferro’s case was thrown out and Justice wept.
When I first picked up the book I whet my palate by perusing the index. The 10th chapter of the book which criticises the various privileges enjoyed by government (but not by the rest of us) was, at least prima facie, the one which I looked forward to the most. I pointlessly rooted for the little-guy throughout and as I neared the conclusion felt vindicated for having singled out the chapter. No sooner had the thought crossed my mind that I reached the end of the chapter which Bonello ends, surprisingly, by stating that: “We Maltese are great suckers for sabotaging human rights through our silence.” The latter comment was used by Bonello to refer to a general inaction by citizens to challenge human rights violations when faced with them; nevertheless, this was not what I was expecting. While doubtlessly well-intended and most probably the fruit of the author’s own exasperation, the comment comes off as rather harsh and condemnatory in nature. Reading about the various breaches is (or at least should be) tiring, so it should come as no surprise to anyone that the victims of these breaches would be mentally, and often financially, exhausted, and consequently demoralised into inaction. For this they should certainly not be congratulated, though nor should they be condemned.
The book is indeed an exasperating read but it must nevertheless be read, not only by lawyers but also by lay society as a whole. Needless to say, lawyers are best placed to see to it that the lessons to be learnt in Bonello’s book are learnt, and quick. I say lawyers and not judges firstly since judges here in Malta begin their legal career as lawyers and secondly because changing the system, or at least the mentality which fuels it, will require an almost complete overhaul of the judiciary.
Coincidentally, this overhaul is scheduled to take place over the course of the next three years during which the vast majority of the judiciary’s vecchia guardia (including the entire court of appeal) shall retire and be replaced by the nuova promessa. Whether the new composition is indeed promising is, however, the prerogative of the minister. While, in truth, it is the minister alone who can determine whether the chaos outlined in Bonello’s book is destined to be relived or not, the University would do well to contribute as best it can.
To this latter end, I propose that Bonello’s book be made compulsory reading within the Constitutional Law credit and that it be given priority over works intended for comparative analysis since it is clear that there is still much to be learnt here at home.