In our contribution entitled ‘Undermining the constitution’ (March 4), we had written that the government’s attempt to disfigure the constitution through an ordinary law rather than following the qualified majority required by the constitution was an attempt at subverting the highest law of the land.
Last Tuesday, the Venice Commission (the Council of Europe’s Commission for Democracy through Law) ruled that that is so. The government cannot change the constitution by merely changing an ordinary law, namely the Interpretation Act, to alter the constitution itself and the unanimous case law of the Constitutional Court of Malta. Only a constitutional amendment passed by a two-thirds majority can do so.
Surprisingly, the justice minister was reported to have stated that he is “satisfied” by the Venice Commission’s report!
Let us rewind the clock to some months ago. The government, desirous of crippling the people’s right to a fair hearing in criminal proceedings before a court of law, moved a bill (No. 166) in parliament to alter the constitution. It declared that it was doing so to “align the position on administrative penalties with that of the European Convention”.
In this particular respect, the constitution happens to give a wider protection than the European Convention, in the sense that, in criminal proceedings, only a court of law presided over by a judge or a magistrate – and no other authority – can impose a hefty administrative penalty – some run into millions of euros – upon any individual.
The government proposed to change the constitution in this respect, earning the award of being the first Maltese government since Independence to reduce rather than enhance the human rights listed in our constitution.
The opposition opposed such bill. It would have been bizarre had any decent opposition in a democracy been willing to agree to a reduction of a human right enjoyed by all. Faced by this setback, the government then proposed a bill (No. 198) amending the Interpretation Act. In this bill, it gave its own version of what amounts to an administrative penalty of a criminal nature that was in direct conflict with the unanimous case law of the Constitutional Court. It tried to justify its actions by stating that it was not amending the constitution but only the case law regarding its interpretation.
The justice minister was reported to have stated he is ‘satisfied’ by the Venice Commission’s report!
Any first year law student would reply that, ever since the landmark US case of Marbury v. Madison in 1803, the supremacy of the constitution is ensured and safeguarded by courts of constitutional jurisdiction which ensure that all the organs of the state act within the constitution. Once a court establishes that a particular law is invalid because it is in breach of an entrenched constitutional provision, only a constitutional amendment requiring two-thirds majority of all MPs can change such case law.
The Venice Commission has now stated unequivocally that: (a) the government can pursue its plans in the infliction of administrative penalties only by amending the constitution itself, requiring a two-thirds majority of all members of parliament; (b) that it is not true at all that, just because our supreme law grants more rights than the European Convention on Human Rights does, it is in conflict with the convention as the latter expressly allows member states of the Council of Europe to grant more than the minimum rights enshrined in the convention; (c) it is not true that dissuasive and effective administrative penalties cannot be imposed by a court of law. Indeed, it called on the government to invest in the judicial system to better achieve such purpose.
The rights which we have acquired over the years through gradual and sometimes daring interpretation of our supreme law by our Constitutional Court cannot be squandered just because the government lost its case in its entirety before the Venice Commission to whom it reverted in the hope of getting an international endorsement of its harmful intentions.
Bill No. 166 amending the constitution is an attempt to reduce our constitutional rights and should be withdrawn. Bill No. 198 amending the constitution through the Interpretation Act without a two-thirds majority should also be withdrawn. We doubt whether bill No. 166 will ever achieve a two-thirds majority in parliament in its current formulation.
The solution for the minister of justice is to do what his colleague, the minister for competition did: amend ordinary law to allow only a court of law presided by independent and impartial judges or magistrates, rather than by ‘persons of trust’ who do not satisfy the impartiality criterion to impose punitive administrative penalties.
This is the minimum expected from those who cherish the enjoyment of human rights.
Kevin Aquilina is head of the Department of Media, Communications and Technology Law at the University of Malta. Austin Bencini is a constitutional lawyer. Giovanni Bonello is a former judge of the European Court of Human Rights. Tonio Borg is a former deputy prime minister and European commissioner.