Malta’s protected rent regime holding back automatic change of unconstitutional laws

The Maltese government is holding out on requests from the Council of Europe’s Venice Commission to automatically strike off unconstitutional laws

udge Giovanni Bonello (left), former Laws Commissioner Franco Debono, and lawyer Veronique Dalli (right)
udge Giovanni Bonello (left), former Laws Commissioner Franco Debono, and lawyer Veronique Dalli (right)

The Maltese government is holding out on requests from the Council of Europe’s Venice Commission to automatically strike off unconstitutional laws, because of laws protecting low rents for people living in their homes since the late 1970s.

Legal experts agree that the government’s insistence not to apply the “erga omnes” (towards all) doctrine by immediately changing laws found to be illegal by a Constitutional court, is to prevent a mass eviction of people whose low rents have been protected by declared unconstitutional laws.

But this system, adopted by the majority of countries around the world, has led to divergent views: is it better to have all cases dealing with the same legal principle decided in one fell swoop and potentially infringe the rights of third parties, or should every case be decided in isolation, increasing the burden on the courts and the individuals concerned?

Lawyer Veronique Dalli argues for the latter option, saying the system as it stands protects vulnerable persons in certain rented properties.

“As a rule, a judgment binds the parties to the case. The government saw that third parties who are not litigants would not be affected by such judgments, where a breach of the Constitution or the European Convention on Human Rights is found.

“In practice, there is an established legal procedure enshrined in the law: when a judgment finds a breach of the Constitution, this is transmitted to the Speaker of the House. The majority of such judgments are then reflected in laws which would be changed by Parliament with the aim of making such laws compatible with the Constitution or the Convention.”

As Dalli says, however, the government so far has felt it should not bind itself to an automatic mechanism or fixed term to reflect unconstitutional sentences into law. “The reason is that there could be judgments which would have large socio-economic implications for our country, such as the ground rent sector and certain rented properties which are occupied by vulnerable persons. I believe the government has an obligation to protect these persons.”

Not everyone agrees with this position of course. The retired European Court of Human rights judge and constitutional law expert Giovanni Bonello is critical of the Maltese system, which only allows the courts to declare an unconstitutional law invalid against the person who challenged it – but not erga omnes.

“With the exception of the UK, almost all the rest of the democratic world follows [this] system. There is a supreme law – the Constitution – and Parliament has to respect the Constitution when making laws,” Bonello insists, saying that any law incompatible with the Constitution, should therefore be void. “Constitutional Courts are, or should be, the inflexible watchdogs over this supreme value of democracy – that nothing against human rights and the constitution survives in the legal order.”

Judge Bonello also says this doctrine meant that a law could be both “alive” and “dead” at the same time.

“A law can be ‘inconsistent with the Constitution’ for either of two reasons – because it violates human rights, and because it violates any other provision of the Constitution. Now the discovery of the century,” he notes sardonically, “made by the Maltese constitutional judges, and by nobody else in the whole wide world, is that if the court finds that a law violates constitutional human rights, then that law is invalid for the person who challenged it, but valid and enforceable for everyone else. Only a political Parliament can be benevolent enough to do something about it, and only if it feels like it.”

As Bonello notes, this situation has the “absolutely dazzling effect” of the very same law being valid and invalid at the same time – void for one, but certifiably in breach of the human rights for the rest.

Bonello also adds that to exercise any right of action, a plaintiff must satisfy the court that they have a personal interest in the matter under litigation. “The Constitution itself urges anyone, with or without personal interest, to take the initiative to clear all rotten, anti-constitutional laws off the statute book.”

But Malta is in a situation where the self-same Constitutional Court has allowed the State to enforce anti-constitutional laws which in the first place incited people to challenge and destroy. “The Constitutional Court teaches that a judgement of nullity of a law only affects the plaintiff to an action, and no one else. It follows that when a person with no personal interest in the annulment of the law is the plaintiff… and obtains from the Constitutional Court a judgement of nullity – that judgement is totally useless, as it affects absolutely nobody at all – not the plaintiff, not the people, not the impugned law,” Bonello said.

Agreeing with Bonello, former Commissioner for Laws and former MP, lawyer Franco Debono, argues that erga omnes should be the logical consequence of the intrinsic nature of fundamental human rights which are enjoyed by all without distinction.

“In general Parliament acts swiftly to legislate and remedy situations declared unconstitutional by the courts. Inaction is the exception rather than the rule. So if the court finds a breach in one case, in theory that should automatically apply for all similar cases; and moreover Parliament should move to act immediately to rectify the situation where legislative intervention is needed.”

Debono says that if Parliament overlooks a constitutional judgment and fails to act, this important and fundamental mechanism would be dangerously eroded and undermined. Seven years down the line since first proposing the reform in the first committee he had chaired on the matter, the situation hasn’t changed, “probably due to the housing implications these rent law cases would have on society at large”, he says, referring to Malta’s rental protection laws currently being rendered unconstitutional by the courts.

Debono had proposed a procedure when a law is declared unconstitutional or illegal, by having the court serve the judgement  on the Law Commissioner, who will, within three working days, enter a notation in the Revised Edition of the Laws of Malta by way of an asterisk next to any offending provision or law, and a corresponding footnote explaining that it had declared null and void by the supreme court.

“Probably it’s that social housing dimension which could see people end up without a home that constitutes the exceptional resistance to erga omnes in this area,” Debono says.

“A similar situation results in the field of cases relating to right to legal assistance for police suspects and the rule of disclosure... Even though the situation has been rectified by Parliament... yet hundreds of cases have been instituted, some still pending, sometimes with different outcomes even in similar circumstances due to changing stances adopted by local courts and ECHR at different times in the last ten to fifteen years.

“Erga omnes would have meant uniformity besides sparing the law courts from being inundated with a huge multitude of cases on the same merits, with different, sometimes conflicting outcomes.”

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