2 - Tonio Borg

Tonio Borg The perils of positivist thinking in Public law

Tonio Borg LL.D, Ph.D, K.O.M. is a former European Commissioner and former Deputy Prime Minister and Minister of Foreign Affairs of Malta. He is a resident lecturer in public law at the University of Malta.

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1. Introduction

T

he positivist approach to legal interpretation is based on a particular philosophical idea of law; namely, that law is a command by a superior to an inferior in the interest of society, a strict application of the law is a must and no further interpretation is necessary except the clear wording of the law. Naturally, this approach, laudable though it might seem, can create problems. Laws are created in a contest, historical, social or political. The law drafters cannot create perfect legislation, leading to loopholes and unclear provisions. But, above all, the reasonable interpretation of statutory provisions is necessary in order to prevent unreasonable consequences or conclusions.

A purview of Maltese jurisprudence in public law, as well as particular incidents in Malta’s constitutional history, will reveal the dangers of adopting positivist approaches in this sphere of the law. The most spectacular example of such a danger arose in the constitutional crisis of December 1974 which ushered in a republican form of Government. The 1964 monarchical constitution, granted on Independence Day, contained an article which proclaimed the supremacy of the Constitution, subject to certain exceptions; namely, the possibility of amending the Constitution through a three tier form contained in Article 66, and the exceptions made to a host of particular ordinary laws as they stood on the coming into force of the Constitution.

These encompassed the main Codes of law, as well as an exemption of pre1962 laws from the right to property contained in Article 37.

This provision was the subject of heated legal and political debate in December 1974 when the Government expressed the intention of amending the Constitution without having to resort to a referendum. Agreement had been reached in the House, by a large majority surpassing two-thirds, as to the main features of the amendments which included, apart from the main thrust towards a change from monarchical to Republican government, the automatic composition of the Constitutional Court and other matters. Some provisions which had to be amended required not only a two-thirds majority in the House, which the amendments enjoyed, but also a referendum. To avert the referendum requirement, a legal ploy was excogitated: it was discovered that Article 6 itself, the supremacy clause, was not entrenched. Article 66 provided that an un-entrenched constitutional provision could be amended 26

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by an absolute majority of the members of the House of Representatives.

Consequently Article 6 was amended through such majority, the supremacy of the Constitution was put in abeyance, the amendments were introduced, and, once everything had been suitably amended, the door was shut once again and supremacy reasserted, this time entrenched by a two-thirds majority.

In order to arrive at such a legal stratagem, Government consulted the Attorney General. It was known that a written advice was given, the same one which was shown to the Opposition in 1974 before it consented to this unorthodox way of amending the Constitution. The written advice by Dr Edgar Mizzi has now come to light. It adopts a positivist approach, which incidentally was accepted by Malta’s legislature. No one contested the means used to change the Constitution. Professor J.J. Cremona, the author of the original Constitution himself, concludes that though there was an interruption in the legal continuity by the unorthodox method used to change the Constitution, such irregularity was cured by general acquiescence1. The argument was simple: the supremacy clause was not entrenched, and consequently could be altered by an absolute majority.

In the advice rendered public recently and deposited at the National Public Library, which is dated 9th December 1974,2 a few days before the enactment of the constitutional changes, the Crown Advocate General stated: This is not a casus omissus for section 66 specifically provides not only that section 6 may be altered but also how it may be altered. The case is expressly covered in law and is expressly excluded from entrenchment. ... Some might say that it is a case of a drafting error and could support the view by invoking the paramount importance of the section in question and of the principle which it enunciates, namely the supremacy of the Constitution … they could add the possibility of amending 6 by a mere majority would stultify completely the exacting requirements 1 See JJ Cremona: Birth pangs of a Republic: Section 6 of the Maltese Constitution: Selected Papers Vol. II (1990-2000 (PEG 2002) 129. See also Tonio Borg A Commentary on the Constitution of Malta (Kite) (2016) 31-39.

2 Memo dated 9 December 1974 to the Prime Minister signed by the Crown Advocate General. This memo is evidently a draft before a formal one was typed. The official one could not be found. Dr Mizzi’s son Dr. Henri Mizzi found it in his deceased father’s papers recently and graciously gave me a copy; the original has been deposited by Dr. Henri Mizzi at the National Library (Bibliotheca).

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of subsections (2) and (3) of Section 66. These are of course real difficulties but to ignore the clear wording of subsections (1) and (5) of Section 66 is at least equally difficult. The fact that section 6 is, by the very terms of the Constitution, subject to alteration by an Act of Parliament approved by a mere majority of all the members of the House, remains incontrovertible. The Constitution expressly excludes section 6 from entrenchment.

The advice goes on also to make a moral argument: The action by your Government is not only legally possible but also morally justifiable once it is clear that the purpose of the amendment is that of giving to the country, by peaceful means and by avoiding as much as possible cause for animosity, a constitution acceptable to the two parties represented in the House and consequently to the country as a whole.

That argument was true. The stratagem, legally unorthodox though it was, calmed the troubled waters then, and ushered in the republican form of government with the least possible political tremors. However, the argument remains that legal continuity was jeopardised, and the idea of constitutional supremacy subjected to political convenience and expediency.

There is also no doubt that this written advice was the same one shown to the Opposition. In Kif Sirna Repubblika3, Ugo Mifsud Bonnici, then an Opposition MP, stated: Within the party there were those who wanted to seek the opinion of English constitutional jurists…in fact that is what happened but the advice given was not at all conclusive or unanimous and this explains the reason why the Nationalist Party insisted that the advice of (Crown Advocate General) Edgar Mizzi be reduced to writing and shown to us.4 On this point it is pertinent to point out that there are at least fourteen 3 Ugo Mifsud Bonnici Kif Sirna Repubblika (PIN) (1999)26.

4 ‘Fi hdan il-Partit kien hemm min xtaq li niehdu il-parir ta’ avukati Kostituzzjoanlisti Inglizi …fil-fatt hekk sar izda il-pariri xejn ma kienu konkluzivi jew unanimi u dan jispjega ir-raguni li minhabba fiha il-parti Nazzjonalista insistiet illi il-parir tal-Avukat Edgar Mizzi, l-avukat tal-Istat, jigi mnizzel bil-kitba u muri lilna.’

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Commonwealth countries whose Constitution does not contain a supremacy clause at all. Those which have a Constitution which contains one have had such provision entrenched. There is, however, one country whose Constitution contains a supremacy clause which is not entrenched, and that is Trinidad and Tobago. In that country’s Constitution the amendment mechanism in Article 54, requiring a qualified majority of two-thirds and in some cases four-fifths of the members of the country’s Legislature, lists a number of sections but ignores the supremacy section; namely, Article 2. It is naive to think that a mistake was committed twice: in Trinidad and Tobago in 1962 when the country became independent, and in Malta in 1964 by omitting to entrench the section relating to supremacy of the Constitution.

The more plausible explanation is that it was presumed that the supremacy clause is part of the DNA of any written constitution. This position was held

by Prof J.J. Cremona, who as Chief Justice in Luis Vassallo v Prime Minister5 stated that the supremacy of a Constitution stems from its very nature, citing Chief Justice Marshall’s dictum in Marbury v Madison 6 that ‘it is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it.’

I find it remarkable that those Commonwealth countries who do not have a supremacy clause in their Constitutions have decided that their Constitution is supreme; and the Maltese Constitution which has a supremacy clause was amended in 1974 as if it did not have one!

One can compare in stark contrast the position in India as regards supremacy and the way the Indian Supreme Court has treated the subject; anything but positivist! The Indian Constitution does not contain an express supremacy clause except as regards human rights; i.e. the Constitution declares the human rights chapter as being supreme vis a vis any measure, legislative or administrative. As to the remaining sections, the Constitution is silent. In Gopalan v. State of Madras7 the Supreme Court of India ruled that such supremacy clause was included as a matter of abundant caution; even without such clause, the human rights chapter would have been considered as supreme. But more interestingly, the Supreme Court has classified the supremacy of the entire Constitution to be basic doctrine which cannot be changed. As Professor Durgas Das Basu states: 5 6 7

(CC) (27 February 1978).

(1803) (1 Cranch 137) (1950(SCR)88(100)

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So even though the supremacy of the Constitution is limited to conflict of any measure with the human rights provisions of the Constitution, case law has determined that supremacy of the Constitution applied to all the provisions of India’s supreme law. 8 The positivist approach adopted in Malta in 1974 has created its own problems; for if it is possible to amend the supremacy clause in such a manner, then it can happen again. This time it is true the section is entrenched, but not by the highest tier; i.e. two-thirds majority and a referendum; which means that those provisions such as the five year lifetime of Parliament can be amended without resorting to a referendum but through a two-thirds parliamentary majority by suspending Article 6 once again, which needs only a two-thirds majority to change!

2. The Turbulent Summer of 1998 A second incident, this time in 1998, linked in part to the 1974 amendments, relates to the position of the Speaker in the House. According to Article 52(2) of the Constitution, the Speaker, even if chosen from outside the House, is considered to be a member of the House. When Government was considering moving forward with the constitutional amendments in 1974, with or without the Opposition’s approval on the basis of the positivist interpretation of section 6, such changes still required the approval by an absolute majority of the House.9 Does one count the Speaker in order to establish this majority? At the 1971 General Elections, Government had only won by a one-seat majority in the House: 28 out of 27. If one were to include the Speaker, the total number would be 56, and an absolute majority of that would be 29. It so happened that in January 1974, an Opposition MP10 crossed the floor and Government obtained its 29th seat in the House. Of course, this could have been by pure coincidence.

The fact that it was probably not stems from the fact that the constitutional 8 Durga Das Basu Commentary on the Constitution of India Vol I (8th Ed 2007)725.

9 Article 66 of the Constitution provides that where a provision is not entrenched , then an absolute majority suffices to alter such provision. In ordinary matters a simple majority (i.e. 50 per centum plus one of the members voting) is enough. To amend an un-entrenched provision of the Constitution, an absolute majority is required i.e. fifty per centum plus one of all members eligible to vote whether present or not at the time of voting.

10 Mr. Alfred Baldacchino crossed the floor on 30th January 1974.

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amendments of 1974 inserted a rule that the Speaker is considered to be a member of the House except for purposes of establishing a majority required to amend the Constitution under Article 66,11 an oblique admission to the fact that Government was probably given the advice that the Speaker should be counted unless there is an express provision of the Constitution excluding him from such determination.

This apparently innocuous amendment raised important constitutional issues in 1998. The Labour Government, having won the October 1996 general elections by a one-seat majority, faced rebellion within its ranks, particularly from Mr. Mintoff’s opposition to Government policy. In July 1998, Mr Mintoff voted against a Government Resolution transferring public land to a private consortium entrusted with the Cottonera Waterfront Project.

Prime Minister Alfred Sant declared that Government would consider such the Resolution as a matter of confidence. Mr. Mintoff still voted against such Resolution which, with the Opposition voting against, was defeated in the House.

When the Leader of the Opposition at the next sitting drew the attention of the Speaker that Government had lost its majority in the House, the latter gave a Ruling which stated that losing a motion considered to be one of confidence was not equal to a formal motion of no confidence, and that in any case, since the Speaker was a member of the House, the required majority to secure approval of a no confidence motion was 35 and not 34 out of a 69-seat legislature. 12 The Speaker ruled13 that: The Chair refers the entire House to paragraph (a) of sub article (5) of Article 76 of the Constitution which states that if the House of Representatives passes a resolution supported by the votes of a majority of all the members thereof that it has no confidence in the Government, and the Prime Minister does not within three days 11 Proviso to Article 52(2) of the Constitution 12 Article 81 of the Constitution provides that ‘if the House of Representatives passes a Resolution supported by the votes of a majority of all the members thereof that it has no confidence in the Government, the President may remove the Prime Minister from office. Such power however can only be exercised if within three days the Prime Minister does not resign or advice the President to dissolve the House.’ 13 Ruling by Speaker Miriam Spiteri Debono (Eight Legislature) Sitting No 240 13 July 1998).

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either resign from office or advice a dissolution, the President may dissolve Parliament. If one were to accept for one moment that the resolution was a motion of no confidence owing to the political interpretation given to it by Government, if one refers to the words “supported by the votes of a majority of all the members thereof” that motion would still not have been deemed to be approved, since the total number of members of this House is 70 and not 69.14 This positivist interpretation of the Constitution is controversial to say the least. How can one add a non-voting member; i.e. a member who does not enjoy an original vote but only a casting one, in order to determine an absolute majority of members? It is logically evident that by ‘all members’ one is referring to members who are entitled to vote, not those who are not.

This absurd result of positivist thinking would lead to the absurd conclusion that in order to form a government, a party needs only a one-seat majority in the House, but in order to be removed from office, there must be a threeseat majority!15 Against this positivist thinking is the general principle that the rules relating to the government’s confidence in the House are the result of time-honoured English conventions, reduced in writing, but still retaining their conventional character16. All parliamentary democracies envisage an Executive which sits in Parliament. This gives Government an advantage compared to the strict separation of the Executive and Legislature in the US Constitution. Under our parliamentary system the Executive practically dominates the House and all legislation put forward by it is as a rule approved. It however contains one hidden disadvantage for Government. If Government loses the confidence of the legislature at any moment in time, 14 ‘Is-Sedja tirreferi il-Kamra ghall-artikolu 76(5)(a) li jipprovdi li “jekk il-Kamra tad-Deputati tghaddi Risoluzzjoni li jkollha voti favur taghha ta’ maggoranza tal-membri kollha taghha li ma ghanshiex fiducja fil-Gvern, u il-Prim Ministru fi zmien tlett ijiem la ma jirrizenja mill-kariga tieghu u lanqas jaghti parir ghax-xoljiment, il-President jista’ jxolji il-Parlament ”; jekk wiehed jaccetta ghal mument li r-Risoluzzjoni kienet mozzjoni ta’ sfiducja minhabba interpretazzjoni politika li taha il-Gvern, jekk wiehed jirreferi ghall-kliem “li jkollha vot favor taghha ta’ maggoranza tal-membri kollha” dik il-mozzjoni xorta ma kenitx tkun ikkonsidrata li ghaddiet, billi n-numru totali ta’ membri ta ‘ dil-Kamra hu 70 u mhux 69.’

15 See TOM Tonio Borg: A Dangerous Precedent : ‘If the Speaker’s ruling is correct then the President can appoint a Prime Minister only if he is satisfied that there is at least a three seat majority in favour of his appointment …unless of course one conveniently argues that to acquire the confidence of the House a majority of one is enough, but to lose that confidence there has to be a majority of three against the government!’ See also in support of such an interpretation Austin Bencini: Controversy over Speaker’s ruling builds up (TOM) (18 July 1998); for an opposite view, see Edgar Mizzi The Speaker’s Ruling (TOM17 July 1998) and The Big Difference (TOM)( 23 July 1998) 16 See Ian Refalo: Il Gens 10 July 1998.

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even by a single vote, its term of office comes to an end. Tampering with such a cardinal principle distorts and adulterates the very notion of parliamentary government.

In the same ruling, the Speaker also rejected the notion that failure to pass a confidence motion amounted to a motion of no confidence. In that particular debate relating to the granting of public land for the purpose of a development at Cottonera, Government, following a first defeat of the motion, declared that it would consider a second motion regarding the same as a matter of confidence. This it did to warn recalcitrant MPs on its own side that voting against the project would be tantamount to a vote of no confidence. It is a politically accepted form of arm-twisting used by several governments with slim majorities in the face of a rebellion within its ranks; however, using such a tactic also means that if the motion is not approved, one has to draw the consequence for such failure as well. One cannot accept the rose without accepting also the thorns attached to it. The Speaker’s ruling amounted to the proverbial heads I win, tails you lose!

Finally, it is neither legitimate to argue that the apparent lapsus was intentional in order to safeguard government’s position in times of political turmoil within one’s own party or when the party in Government does not have a clear majority in the Legislature. The need of an absolute majority to sanction a vote of no confidence was not introduced under the 1961 Constitution when Government’s strength in the Legislative Assembly was only 25 seats out of fifty. Indeed, under the 1961 Constitution, such a motion needed only a majority of those present and voting, that is to say, a mere simple majority. In any case, in 1962 following the crossing of the floor by an Opposition MP, Government enjoyed a majority of two seats. The absolute majority requirement was only introduced in the 1964 Independence Constitution.

3. Elastic Preambles The Demicoli case17 today has achieved European, if not world, recognition.

The European Court of Human Rights ruled that the House of Representatives in Malta could not preside over proceedings which were criminal in nature for it was not an impartial adjudicating authority considering that the victims 17

Demicoli v. Malta (ECHR )(27 August 1991) (13057/87)

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of slander acted as judges in the final verdict of guilt.

Few remember, however, that the Constitutional Court had ruled that the law was in order. In doing so, it resorted to a rather bizarre, dangerous and positivist interpretation. It decided that even though the right to a fair hearing under Article 39 did not contain any exception in favour of parliamentary privilege, including the right of Parliament to conduct criminal proceedings against any individual, the fact that parliamentary privilege was mentioned as an exception to Article 35 (personal liberty) and Article 43 (freedom of expression) allowed the Court to apply an exception to one right to another right which contained no such exception! It stated that: The Court would first like to remark that Article 32 of the Constitution of Malta under Chapter IV entitled Fundamental Rights and Freedoms of the Individual, after listing the said rights and freedoms, continues to state that �the subsequent provisions of this Chapter ... shall have effect to secure protection to the rights and freedoms aforesaid subject to such limitations to such protection as can be found in such provisions ..� It is clear therefore that according to the Constitution the limitations which the Article 32 refers to, need not necessarily result from the specific provision granting such right or freedom, but may emerge from the other provisions under the same Chapter of the Constitution.

(Emphasis added).

The dangers of such a pronouncement are self-evident. Each and every human right, depending on its contents and importance, has a specific list of so-called permissible statutory derogations. Those applicable to the right to life are not the same as those applicable to freedom of expression. Public morality and defence are exceptions to the freedom of expression but not to the right to life.

The judgment of the European Court of Human Rights reversed this obnoxious decision of the highest court in Malta. It of course applied the European Convention on Human Rights. It ruled that Article 6 had been contravened owing to the lack of impartiality of the legislature acting as an adjudicating authority in a case of a criminal nature.

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4. Re-Trial in Human Rights Cases A similar positivist approach by our highest court has taken place in deciding whether the legal remedy of a new hearing (ritrattazzjoni) applicable in all civil cases, applies to constitutional human rights cases as well. The Rules of Court since 1964 had provided that in human rights cases the provisions of the Code of Organization and Civil Procedure, and therefore all the provisions relating to a new hearing, were mutatis mutandis applicable to such cases, unless in direct conflict with the Constitution.

Up to 1985 there was no issue with re-hearings being requested in human rights cases. Indeed, in the Ferro case,18 the Constitutional Court was seized with a request for re-hearing; it did not dismiss the request because the remedy did not exist, but because it came to the conclusion that there were no grounds to sustain such a request on the merits.

It was only in 1985 that the Court was seized with re-hearing requests in two politically loaded cases,19 one instituted by the Opposition party, the other by a prominent Government Minister, in which it interpreted the Constitution as excluding the hearing of new cases owing to the fact that the jurisdiction of the courts of constitutional jurisdiction is special and therefore only an express provision of the law could allow re-hearing cases.

It appointed the two cases on the same date and dismissed them both simultaneously. A politically convenient solution to a thorny question in pseudo- Solomon fashion. It ruled: Since the jurisdiction granted to it and the First Hall of the Civil Court is a special one, and the functions and the powers of each one of them in the exercise of such jurisdiction are indicated in the said Articles 46 and 95, it is not lawful that one of these courts exercises jurisdictional functions and other powers which are not envisaged in such articles.

In 2005 Parliament amended Article 811 of the Civil Procedure Code relating to new hearings, guaranteeing such new hearings in cases of judgments of the Civil Court of the First Hall in its constitutional jurisdiction, but 18 Edward Ferro v. Housing Secretary (Const. Court) (CC) 19 June 1973.

19 Carmel Cacopardo v. Minister for Works (CC) (25 June 1986) (Vol. LXX.I.42) and Joseph Galea noe v. Minister for Works (CC)(25 June 1986) (Vol. LXX.I.48).

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remained silent on courts of appellate constitutional jurisdiction, presumably because Article 811 already referred to ‘judgments given in second instance .’ Wasn’t the Constitutional Court a court of second instance? It seems that the provision was so interpreted. In Jovica Kolakovic v. Attorney General20, the Constitutional Court decided on retrial request in a constitutional matter, rejecting it on the merits.

In another case,21 the Court accepted to hear a retrial request but again rejected it on the merits. In 2015, the Constitutional Court reverted to its previous positivist and restrictive interpretation: The Constitution did not envisage the granting of a right to request a new hearing which is an extraordinary right: and the Court does not deem it lawful to grant to itself this extraordinary right to order a new hearing when the Constitution itself does not grant such right. … The Maltese legislator amended Article 811 of the Code of Organization and Civil Procedure but granted the right of a retrial after judgments of the Civil Court First Hall in its constitutional jurisdiction and deliberately excluded this remedy following judgments of the Constitutional Court. It is being said deliberately because the Government of the day was certainly conscious of the abovementioned judgments but still did not consider proposing the extension of the remedy to judgments delivered by this Court. 22 This means that the Constitutional Court was not considered as a court of second instance and appellate jurisdiction. This positivist interpretation is even more legally weird when one considers that re-hearing appeals, as a rule, is limited only to decisions by appellate courts; for if a party to a cause fails to appeal a case, it cannot then request a rehearing of the judgment delivered by the court of first instance. It could never have been the legislator’s intention to limit re-hearing only to cases before the court of first instance, the more so when reference was made in Article 811 to judgments ‘given in second instance’.

20 21 22

(CC) 28 April 2014) 26/10 William Vella pro et noe v. Commissioner of Land et (CC)(30 May 2014) (10/12) Architect Joseph Barbara v Prime Minister (CC) (13 January 2015 (65/07)

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5. Positivism and Juridical Interest A similar trend can be seen in the way the courts have dealt with the issue of juridical interest or legal standing in public law. They have forcefully applied the notion of direct personal juridical interest as understood in civil law to the public law sphere, not only in cases of judicial review of administrative actions but also in constitutional cases.23 In the Constitution, human right cases must be instituted by a person who claims a contravention of the human rights provisions in relation to him. This has been interpreted as full juridical interest even though the European Court of Human Rights has interpreted the stricter notion of “victim� under Article 25 of the European Convention on Human Rights, as allowing persons or non-governmental organisations who do not have a direct personal interest but have sufficient interest to institute an action before the Court. 24 As regards non-human rights cases, the Court, adopting a positivist approach, has ruled that unless a constitutional case falls within the strict parameters of Article 116 of the Constitution, which provides for the so called actio popularis, then juridical interest is required. Since Article 116 refers only to challenging of laws on the grounds other than human rights, then, arguing a contrario sensu, a non-human rights constitutional action is exempted from the juridical interest requirement only if one challenges the validity of a law; if one challenges a decision or order by a public authority, interest is required.

The dangers of this pronouncement is that the strict application of the juridical interest doctrine, as expounded by civil law jurists in private law, to constitutional cases would lead to situations where express provisions of the Constitution are rendered un-justiciable. If a Minster is appointed on the advice of the Prime Minister to Cabinet without being elected as a Member of Parliament as required by our Constitution, or if Malta joins a military alliance in breach of the Constitution, no citizen can challenge such appointments; for who could possess such direct personal interest?

23 See Tonio Borg: Juridical Interest in Constitutional Proceedings Ghaqda Studenti Ligi (GHSL) on line 17 February 2017 and Giovanni Bonello When Civil Law trumps the Constitutional Court Id-Dritt Law Journal Vol. XXIX:(GHSL) (2019) p.427 24 See in this regard the strict application and interpretation of juridical interest in the case Simon Busuttil v Attorney General et (CC)(29 October 2018)(86/17) where the apex court in Malta ruled that a member of Parliament who filed an application before the duty Magistrate for a criminal investigation to commence, and which was acceded to, did not then have legal standing before a court of appellate jurisdiction which had the power to revoke such a Magisterial decree

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This was affirmed in two cases. In the first, a number of non-governmental organizations in 1988 challenged Government’s invitation to a fleet of Royal Navy ships to anchor in Maltese ports, alleging that such concentration of warships infringed Malta’s neutrality enshrined in the Constitution. Plaintiffs lost the case on the merits, but graver still, their request was rejected because of lack of juridical interest. Once what was being challenged was not an instrument having the force of law, the issue fell outside the ambit of Article 116. If so, interest had to be provided. This same reasoning was applied years later in 2013 when two Opposition MPs argued that, had it not been for an error committed by the counting agents of the Electoral Commission during the March 2013 General Elections, they would have been elected through the normal procedure and not through a corrective electoral mechanism.

The Court ruled that once the two MPs were elected they had no juridical interest to question the method of their election. 25 This judgment is also in direct conflict with judgments26 delivered preWorld War II by the Court of Appeal to the effect that, even though no legal provision existed, an actio popularis was always admissible in electoral cases for voters have a right to see to it, even through judicial means, that their representatives have been regularly elected.

It is a pity that when Malta was a colony there was no need to prove any personal interest to challenge the regularity and validity of an election to the Legislature, but post-Independence, one needs to prove such interest!

A blind application of civil law in public law produces similar bizarre consequences.

In Maltese civil law, vicarious liability is regulated by the Civil Code. An employer, for instance, is liable in tort for the actions of his employees only 25 Claudette Buttigieg v Electoral Commission (CC)( 13 March 2013) (526/13) and Frederick Azzopardi v Electoral Commission (CC)(13 March 2013)(525/13) 26 Giuseppe Micallef Goggi v. Emanuel Armando Mifsud (CA) (11 April 1930) (Kollezz. Vol. XXVII.I 495): ‘It was never put in doubt under the several Constitutions which had effect in these Islands, including the current one, that it is the right of any citizen to propose the popular action in matters relating to elections. This is the right to judicially request the annulment of a political ,election, even though there is no specific legal provision on the matter.’ ‘Non fu mai dubitato sotte le varie Costituzioni che ebbero vigore in queste Isole, compresa la presente, che compete a qualsiasi cittadino l’ azione popolare in materia di elezione; il diritto cioe’ di agire in giudizio per domandare l’annullamento di una elezione politica, quantunque non vi sia un preciso disposto di legge in proposito.’

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as regards “culpa in eligendo”: negligence in choice. In one case,27 regarding the failure of the Commissioner of Police to protect the right of students to stage a silent march in Valletta in 1978, which was disrupted by thugs waiting for the students, the court found that although the Police in charge that day had failed in their constitutional duty to protect the students’ fundamental right to freedom of assembly, the defendant Commissioner of Police was not responsible on the ground that there had been no culpa in eligendo.28 The Constitutional Court thankfully reversed this judgment and found for the student marchers since the Commissioner was responsible by law for the supervision of the Police Corps and should have taken extra precautionary measures once he had been warned by the organisers about threats of disruption of the event.

6. The difference between Compulsory and Forced In 1977 a partial strike by government medical doctors was crushed by locking out and subsequently dismissing such doctors from public service, but graver still, enacting a law whereby such striking public servants could not exercise their profession in private hospitals29 in perpetuity, unless they declared in writing that they would not resort to strike action again and return to their employment with Government. This lifelong prohibition applied even after Government, through dubious means, dismissed the doctors from the public service!

The action was, as expected, contested in the courts of constitutional jurisdiction; prohibiting striking government doctors from working in private hospitals was an indirect form of forced labour: if the doctors did not return to work, and pledged to perform the full range of their duties, they could not earn a living with a third party with whom they had no dispute! Government seemed to be saying: you either work for me, or you won’t work for anyone else.

Some of them, whose work and profession was intimately linked to hospital, 27 Francis Zammit Dimech et noe v Commissioner of Police (Constitutional Court) (30 November 1987) (Kollezz. Vol. LXXI.I.86) 28 Art 1037. Where a person for any work or service whatsoever employs another person who is incompetent, or whom he has not reasonable grounds to consider competent, he shall be liable for any damage which such other person may, through incompetence in the performance of such work or service, cause to others.

29 According to a practice still applicable today, government consultants were allowed private practice in order to entice the best medical consultants to work in State hospitals.

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had to emigrate and work abroad. 30 This far reaching law was declared to be perfectly valid by our Constitutional Court. It dismissed claims that it infringed freedom to form a trade union, freedom of expression and freedom from discrimination, or that it amounted to forced labour. The Constitutional Court said that, if at all, this was a very indirect form of forced labour and that while the European Convention on Human Rights (which at that time was not part of our legal system, nor could anyone petition the European Court in Strasbourg for breach of his rights in Malta) used the words forced or compulsory labour in Article 4, the Maltese Constitution in Article 35 referred only to forced labour, full stop.

The Court quoted the Iversen case31 where the applicant had distinguished between forced and compulsory labour arguing that the concept of compulsory labour was a wider one, covering indirect forms of forced labour, which encompassed his case i.e. that of sending fledgling medical doctors as part of their work with the National Health Service to God-forgotten remote places in Northern Norway. It does not seem that the European Commission of Human Rights accepted this distinction; so, the Court actually referred to a submission by applicant - who incidentally lost the case - without referring to the decision on the merits itself.

The Constitutional Court, in cryptic language, then concluded: The challenged amendment, properly speaking, considering its own wording, imposes non-labour in private hospitals to those who elect not to do what it prescribes; and if appellants state, as they are stating, that this brings about force labour for them in Government hospitals, the connotation of what is compulsory for purposes of forced labour, in its intention and raison d’être, is so indirect, apart from other considerations regarding the nature of forced labour, that in the opinion of the Court, such amendment clearly does not fall under the prohibition as formulated in Article 35 of our Constitution.

One was not being forced to work; on the contrary one was being forced not to work. These sophistic and byzantine distinctions served only to 30 The industrial dispute was only resolved after a change in Government in 1987. It lasted ten years (1977-87) 31 Iversen v. Norway (Appl No 1468/62 Yearbook VI p 278 et seq.

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shamefully allow a far reaching and obnoxious law to remain on our statute books for a decade.

7. Not all is gloomy: just most of it There have been exceptional cases where the Courts have refused positivist interpretations. The most clamorous example was the Church Schools case.32 In a human rights case filed by the Catholic Church in Malta, it was alleged that a law which precluded Catholic Schools from charging tuition fees, enacted with the rallying political war cry of Either free, or Nothing, was in breach of a number of human rights provisions guaranteeing religious freedom including the right to manage schools belonging to a particular faith or Church.

When the case was appointed before the court of first instance, one judge after another abstained for a variety of reasons. One stated that he had given legal advice to one of the Congregations years before the event (it is still not clear what the subject matter of the advice was); others abstained because some relative of theirs attended a Catholic School as a student.

It so happened that finally there were only four judges left to try the case; one presiding over the court of first instance and three composing the Constitutional Court as an appellate court. When a preliminary decision on evidence was given by the lower Court, Government appealed to the threemember Constitutional Court. It immediately requested the abstention of one of the judges whose son attended a Catholic School.

The Constitutional Court, in a landmark historical judgment33 applying the doctrine of ius necessitatis, ruled that once only three judges were left, there was no room for challenging or abstention; those three judges would not relinquish their duties for if they were to abstain, the Court would not be constituted. At that time the assignment of duties at the Law Courts was a prerogative of the government of the day. It stated: 32 Monisgnor G. Mercieca pro et noe v. Prime Minister et (CC) (22 October 1984) (Vol. LXVIII.I. 42 (137/84).

33 Mgr. Joseph Mercieca v. Prime Minister et (CC) (22 October 1984) (Kollezz. Vol. XLVIII.I. 42) (137/84)

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Malta is a republic founded on work and the respect of the fundamental rights and freedoms of the individual (which should colour the interpretation of the entire Constitution otherwise such statement would be only a futile boast – something presumably not permissible in a serious document such as the Constitution of the country. The Court cannot fathom how in the light of the first subsection of the first section of the Constitution, it can possibly sideline and jettison the best practical safeguard in a democracy, namely that the legislator willed that the Court be practically always constituted and functioning. 34 This remarkable judgment then reserved a final surprise. After the Constitutional Court delivered its justification as to why none of its members would abstain, it then dealt with the merits of the abstention request just the same and decided that this was not justified at law. It could have simply stated that at the beginning and decided the case. Instead it first delivered its statement in favour of the ius necessitatis for posterity and to create a precedent about the non-application of abstention requests in such cases, and then coolly, effectively and calmly dismissed the request for abstention on the merits.

8. Conclusion This cursory look at some of the judgments based on positivist thinking have revealed the dangers of adopting such an approach and interpretation in public law actions; constitutional actions are not about splitting hairs in legal interpretation; they are about interpreting a living instrument which adapts itself to the times but retains its core values, which should not be interpreted in a positivist way. Other Supreme Courts have created judicial doctrines such as the basic doctrine theory whereby the Indian Supreme Court does not allow any changes to the republican form of government, the supremacy of the Constitution and the separation of powers amongst 34 ‘Malta hija repubblika demokratika bbażata fuq ix-xogħol u fuq ir-rispett għad-drittijiet u l-libertaijiet fondamentali tal-individwu (li żgur għanu jlewwen l-interpretazzjoni kollha tal-Kostituzzjoni, għax altrimenti jkun biss ftaħira u tfanfira – ħaġa li mhix presumibbli f’dokument serju bħalma hi l-Kostituzzjoni ta’ pajjiż, il-Qorti ma tistax tara kif, fid-dawl tal-imsemmi l-ewwel inċiż tal-ewwel artikolu tal-Kostituzzjoni, hija tista’ lealment tiskarta, iġġenneb u tarmi l-aqwa salvagwardja prattika tad-demokrazija f’pajjiżna li l-leġislatur ried li prattikament tkun dejjem ikkostitwita u funzjonanti.’

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other things, even if the required majority to amend the Constitution backs such changes.35 Perhaps one would be asking too much for our apex Court to be so adventurous; but a change in mentality and approach is needed that confirms it is a supreme court in matters dealing with delicate relationships between citizen and State, and that the rights of the individual need to be protected in the widest sense possible.

35

Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 ;AIR 1973 SC 1461

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