When the Constitution is not supreme…

It may have been overshadowed by former US ambassador Douglas Kmiec's controversial comments about God (and all that)... but one of the more radical proposals floated at last Saturday's forum on Constitutional reform concerned a long overdue shake-up of the country's beleaguered justice system: namely, the possible introduction of a Supreme Court.

Initially the subject was raised by Professor Ian Refalo - Malta's foremost Constitutional lawyer - who took the opportunity of the morning session to illustrate an apparent anomaly undermining the position of Malta's Constitutional court as the 'supreme law of the land'.

While, in theory, the Constitutional Court's interpretation of any given law is supposed to be the final word on the matter, Refalo explained that, in practice, it doesn't quite work that way. Turning to the composition of the Court as it stands, Refalo noted how the independence of the judiciary - coupled with the fact that Malta's juridical system appears not to recognise the 'precedent' system, as epitomized by the British model - sometimes resulted in the same court delivering conflicting verdicts, based on different interpretations of the same laws.

"In theory, the law should work the same way for everyone," he reiterated when contacted about his proposal yesterday. "If, for argument's sake, the Constitutional court one day rules that such-and-such a thing is 'green', you don't expect the same Court to afterwards rule that the same object is suddenly 'red'. It's a matter of consistency. The same law cannot be given different interpretations by different judges, or depending on different circumstances."

And yet, in the present system, there appears to be nothing stopping a different composition of the Constitutional Court from reaching vastly different conclusions, even when faced with a similar or identical set of circumstances.

Matters are not helped by the ever-increasing workload of individual judges, which has had the unforeseen consequence that the composition of the Constitutional Court is rarely the same. And as different judges inevitably come to the Court from different backgrounds and with different outlooks, the overall effect only adds to an impression (justified or otherwise) that 'inconsistency reigns supreme'.

Nor is this the only shortcoming affecting the operations of the same Court.

"Ideally, when a question arises over interpretation of a law, one would expect any decision reached by the Constitutional Court to be final," Refalo explains. "You certainly don't expect to have to go back to court for a new decision every time the same disagreement arises... again, and again, and again."

Sure enough, however, this is precisely what happens in practice, as - unlike the situation with the USA's Supreme Court rulings - a local Constitutional Court verdict can, in fact, be overruled (if only by another Constitutional Court verdict).

It was this concern that prompted Prof. Refalo to suggest a wide-reaching reform of the Constitutional Court that would bring it one step closer to the concept of a 'Supreme Court' along the lines of the American model.

And he is not the only one to voice similar concerns. Former European court of Human Rights judge Giovanni Bonello had earlier made a similar point, though not in the context of a national discussion on Constitutional reform.

Interviewed by this newspaper, Bonello drew attention to the fact that the 'highest court of the land' turns out under scrutiny not to be as vertiginous as its title suggests.

"Our legislative model is based on the notion of the supremacy of the Constitution: which technically implies that there can be no authority above Constitutional law," Bonello explains. "But in practice it doesn't seem to work that way. What happens when the Constitutional court rules a law to be unconstitutional? For me, that should be the end of story. If the Constitution really is supreme, then any law declared 'unconstitutional' should be automatically declared null and void..."

Like Refalo, Bonello adds that this is not how things pan out in practice. "In Malta, everyone seems to have accepted that in such cases, the Constitutional Court's ruling would only be applicable to the particular case in which it was handed down. The law itself, however, will remain in place until it is repealed by Parliament... even though it has been declared unconstitutional."

Bonello further noted that in several cases in the past, Parliament never got round to repealing such legislation... with the result that the statute book still contains a number of laws that have been declared technically illegal.

"In practice we have effectively subverted the principle of the supremacy of the Constitution, upon which our legal is supposed to be based. The result is that Parliament is free to pass as many unconstitutional laws as it likes, and those laws will remain in place until Parliament itself decides to remove them..."

This is the case at present, but it remains to be seen whether the situation will be addressed as part of an ongoing process of Constitutional review. Provided, of course, that the same process is not once again hijacked by other, less relevant concerns...