Watch: ‘The Constitution works as is – if it is respected’ – Judge Bonello

Tista' taqra bil- Malti.

Laws which were found to be unconstitutional have remained valid and binding, despite being declared unconstitutional by the Constitutional Court, Judge Emeritus Giovanni Bonello says. interviewed Judge Emeritus Giovanni Bonello who was appointed to the European Court of Human Rights in 1998. The conversation focused on the Constitution and its upholding, and will be aired on 103 this Saturday. 

A public consultation process was launched by President George Vella in middle of summer and will run for three months. Judge Emeritus Bonello was asked whether he agrees that the Constitution needs an overhaul.

Read: President Vella encourages public to be active in the Constitutional reform

Speaking to the former human rights judge stated that the Constitution as it is, is good, albeit a few changes “here and there” would be needed. He explained that the Constitution is ultimately “a piece of paper”. Emphasizing that it is the upholding of the Constitution and respecting its values that is essential rather than its formal drafting. 

Using the constitution that was drawn up for the USSR as an example, Bonello said that in terms of safeguarding human rights it was “good”; however, what history shows us is that little from what was written was in actual fact upheld. 

Judge Emeritus Bonello explained that the Constitution, as the country’s supreme law, clearly provides for instances when a law is found to be in breach of the constitution; in cases such as these, the law is “null and void”. However, he observed that in Malta what happens is that while the court would declare such a law “unconstitutional” these laws still remain in place. 

He compared this to other countries where the constitution does not provide clearly that laws declared “unconstitutional” subsequently became “null and void”. Bonello added that what happens in Malta is that despite the Constitution providing for such instances clearly, the Courts still wait for the politicians to change the law. He remarked that this goes to show that although one might have a “perfect” Constitution, its upholding is more important. 

Old rent laws, competition laws and arbitration laws have all been found unconstitutional by the Courts. However, these laws were not removed. This leads to a situation where individuals affected are required to go through decades in litigation just for the Courts to conclude the same thing. 

In June this year, the First Hall, Civil Court in its constitutional jurisdiction declared for the umpteenth time that a “forced landlord-tenant relationship” for an indefinite time and at a rent far below the current market value is unconstitutional and violates human rights. The case, the most recent in a long line of Maltese and Strasbourg (European Court of Human Rights) cases was instituted by the owners of a house in Żejtun leased to a couple in 1995. The property was being leased at €23 per month while an architect had estimated the property should be leased at €522.50 per month at current rental value. The landlords sued the Attorney General and the lessee couple for a breach of their right to the full enjoyment of their property as safeguarded under the Constitution and the EU Convention and won.

Landlords were denied the right to revise the rent in line with market prices under Chapter 69, the Reletting of Urban Property (Regulation) Ordinance. Since leases signed prior to the 1st June 1995 were protected by law. 

Yet, and just like all other cases before this one, any landlord stuck with a pre-1995 tenant needs to go to court (and waste years and thousands in legal fees) only to have the Court conclude again that the law – which is still there – is in fact unconstitutional.

Malta’s current Constitution was adopted on 21 September 1964 (Independence). As it stands, the Constitution provides for a three-tier entrenchment of its rules setting different thresholds for amendments according to the importance of the provision or rights granted.

The first tier, the lowest threshold, requires an absolute majority of all members of parliament to vote in favour of the change, that would be 50% +1 of all MPs in office or over 34 MPs. The normal threshold in parliament is a simple majority that is 50% +1 of those in parliament on the day. This tier protects all clauses other than those protected by higher tiers. 

The second tier, the middle threshold, protects certain clauses by requiring a vote in favour by two thirds of all members of parliament. That is 50+ MPs. This threshold (2/3 of MPs) protects the majority of clauses of the Constitution other than the most essential. A change in Malta’s name would require a 2/3 vote. 

The third tier of the Constitution requires not only an absolute majority of two thirds of all MPs to vote in favour, but also a popular referendum which would approve such vote. The most essential rule of all protected by this third tier is that an election needs to be held every five years, the rule that ensures that Malta remains an electoral democracy. What happens in between those five years, though, relies on our MPs respecting the Constitution and its democratic values.