Malta chasing 'moving train' in European human rights landscape

Malta could find itself in a "highly improbable" legal conundrum where it would either have to amend its Constitution's supremacy supremacy or leave the European Union.

Speaking at the launch of the book  ‘Malta and the Court of Justice of the European Union’ authored by Joseph Izzo Clarke, Maltese judge in the Court of Justice of the EU, Anthony Borg Barthet, explained that Malta cannot invoke the supremacy clause in Malta's Constitution to derogate from its European obligations – creating a theoretical conflict between Maltese and European law.

As Borg Barthet said, his is a theoretical consideration: Malta remains bound by EU law even if the Constitution says that it is superior to any other conflicting laws.

Currently, under Maltese law, the Constitution, in virtue of Article 6, establishes its superiority, explaining that “if any other law is deemed to be inconsistent with the Constitution,” the latter shall prevail and declare any conflicting laws void.

However, the supremacy of EU law supersedes this, and consequently, any other laws of member states which are deemed to be inconsistent or in conflict with laws of the European Union are to be ignored. In addition, in any cases, the European laws would take effect.

Despite this fact, Borg Barthet explained, as opposed to Ireland’s constitution, the supremacy of EU law is not explicitly stated within Malta’s constitution.

Nevertheless, parliament must legislate laws so they are in accordance with its European obligations and European treaties.

“According to the European obligations Malta assumed when it became a member of the European Union, Malta cannot invoke its constitutional supremacy to derogate from its European obligations.”

“If parliament makes a law which goes against Malta’s laws and obligations under the European treaties, Malta cannot say that this goes against the constitution of the EU, and its supremacy,” Borg Barthet said.

Consequently, he explained, there is a conflict of theory between the supremacy of the EU and Malta’s Constitution. “In such a situation, Malta would either have to amend its constitution, apply for a derogation from EU law, or leave the EU entirely,” he explained.

Notwithstanding this conflict, Borg Barthet, who was explaining whether Malta is aware of its role vis-à-vis the EU law, underlined that he could not imagine where this conflict may arise, and insisted that this conflict is only in theory but not in fact. 

Meanwhile, Borg Barthet argued that when it comes to cases inside the European Court of Human Rights, Malta, just like the majority of EU members, was chasing a “moving train.”

“Malta loses the majority of its cases mainly because the Court is actively promoting the human rights and its role is not to declare whether a country is complying with EU law,” he said.

While explaining that certain cases are a loss from the start, Borg Barthet argued that today, the Court was analysing rights which are not as fundamental.

On his part, Joseph Izzo Clarke, the author of ‘Malta and the Court of Justice of the European Union’, a commemorative book celebrating Malta’s accession to the EU and Malta’s judiciary collaboration with the European Court of Justice in Luxembourg, underlined the important role of translation in the functioning of the Court of Justice, as well as the role of the Maltese language.

He explained that through translation, the courts could convey its message to the Maltese judiciary, who in turn could interpret it uniformally. In addition, he argued that through translation, the courts could understand the parties of a court action, which on the other hand, the parties could communicate with the courts.

Among its chapters, the publication takes a look at the role of the European Court of Justice and its judiciary relationship with the Maltese courts; the preliminary decisions that originated in Malta; direct actions against Malta as well as historic jurisprudence.