The supremacy of the Constitution of Malta

Abstract

The study is about the supremacy of the Constitution of Malta .The evolution of the concept of supremacy is analysed in the light of Maltese constitutional development. It encompasses the period starting from British Rule, Malta’s acquisition of Independence which brought with it a new ‘supreme Constitution’, the nodal events of the 1974 amendments which were to provide a very lasting effect on the present understanding of supremacy as is evidenced by the various interpretations, at both the national and international level, given on the effects the 1974 events had on the present concept of supremacy. Emphasis is made on the inter-linking between strict legal interpretation and political events which took place during these periods, forming what the study terms as “the unwritten constitutional practices of the Maltese" which provided a sub-stratum of conventions in regard to the formal colonial Constitutions promulgated by the British authorities. The lack of consensus between the political parties on the 1964 Independence Constitution signified the undermining of the very concept of the new Constitution’s Supremacy and the consequent extension of the unwritten constitutional practices of the Maltese into the years following Independence. All these issues on supremacy are seen in the light of the constitutional manner through which Malta became a Republic. The formalistic legalistic rendering of the entrenchment clauses surrounding article 6 of the Constitution served at first to undermine the Constitution’s supremacy. However subsequent agreement on the contents of the constitutional amendments and on the manner in which the supremacy clause was to be entrenched, created a new conventional reality of the ‘two-party State’. This is in recognition of the political reality which underscored the constitutional reality of Malta since independence, in that every General Election always returned the same two political parties to Parliament. The study includes a theoretical approach on the historical, conventional and political developments covered by the study and considers the notion of supremacy at the normative level. The backdrop of the Commonwealth experience is provided to throw light on legal and judicial interpretations within the Commonwealth on constitutional amendments involving supremacy clauses with particular attention on those occurring at the time the 1974 amendments took place. The author considers various constitutional situations which arose following the 1974 amendments in order to trace how the two-party political reality has gone beyond being a conventional, political sub- stratum and in effect making its formal appearance in the Letter of the Law and of that of the Constitution of Malta. The question of whether the Constitution of Malta is to-day still in effect supreme, as it purported to be at Independence, is considered by reviewing the role played by the Constitutional Court of Malta and the manner in which the Court has perceived its role as the ultimate guardian of the Constitution’s supremacy. In turn attention is given to the manner in which the balance between the institutions had to be revised to cater for anomalous situations experienced when the Constitutional Court of Malta was not composed due to failure by the Executive to appoint the full judicial complement of the Court. In this regard the role of the Commission for the Administration of Justice is described in the light of constitutional challenges it faced on its constitutional legitimacy. A purview of how the judiciary has interpreted, often in a contrasting manner, its role in the application of the provisions of the Constitution’s supremacy, leads the author to question the efficacy of the supremacy clause itself. The author invites a possible re-thinking of the role and the powers of Malta’s highest Court. The study purports to look at the notion of the supremacy of the Constitution of Malta seen from its own perspective. A part of the study is dedicated to possible scenarios which Malta’ entry to the European Union might bring about. Malta has not seen a legal challenge on the effect which accession to the European Union might have on the supremacy of Malta’s Constitution. The author postulates possible approaches to the mater, based on the manner in which constitutional courts within the European Union have approached the issue. Particular attention is given to the Courts which share with Malta a Constitution which is defined supreme. The author attempts at giving an interpretation of supremacy which goes beyond its negative connation namely of the invalidation of laws inconsistent to the Constitution. Due recognition is given to a new understanding of the concept of supremacy within a wider understanding of the inter-play between domestic and international law at the constitutional level.