Issue link: https://maltatoday.uberflip.com/i/1264355
that if the court finds that a law violates constitutional human rights, then that law is invalid for the person who challenged it, but valid and enforceable for everyone else. Only a political Parliament can be benevolent enough to do something about it, and only if it feels like it." As Bonello notes, this situa- tion has the "absolutely daz- zling effect" of the very same law being valid and invalid at the same time – void for one, but certifiably in breach of the human rights for the rest. Bonello also adds that to ex- ercise any right of action, a plaintiff must satisfy the court that they have a personal inter- est in the matter under litiga- tion. "The Constitution itself urges anyone, with or without personal interest, to take the initiative to clear all rotten, anti-constitutional laws off the statute book." But Malta is in a situation where the self-same Consti- tutional Court has allowed the State to enforce anti-con- stitutional laws which in the first place incited people to challenge and destroy. "The Constitutional Court teaches that a judgement of nullity of a law only affects the plaintiff to an action, and no one else. It follows that when a per- son with no personal interest in the annulment of the law is the plaintiff… and obtains from the Constitutional Court a judgement of nullity – that judgement is totally useless, as it affects absolutely nobody at all – not the plaintiff, not the people, not the impugned law," Bonello said. Agreeing with Bonello, for- mer Commissioner for Laws and former MP, lawyer Fran- co Debono, argues that erga omnes should be the logical consequence of the intrinsic nature of fundamental human rights which are enjoyed by all without distinction. "In general Parliament acts swiftly to legislate and remedy situations declared unconsti- tutional by the courts. Inaction is the exception rather than the rule. So if the court finds a breach in one case, in theory that should automatically apply for all similar cases; and more- over Parliament should move to act immediately to rectify the situation where legislative intervention is needed." Debono says that if Parlia- ment overlooks a constitu- tional judgment and fails to act, this important and funda- mental mechanism would be dangerously eroded and under- mined. Seven years down the line since first proposing the reform in the first committee he had chaired on the matter, the situation hasn't changed, "probably due to the housing implications these rent law cases would have on society at large", he says, referring to Malta's rental protection laws currently being rendered un- constitutional by the courts. Debono had proposed a pro- cedure when a law is declared unconstitutional or illegal, by having the court serve the judgement on the Law Com- missioner, who will, within three working days, enter a no- tation in the Revised Edition of the Laws of Malta by way of an asterisk next to any offending provision or law, and a corre- sponding footnote explaining that it had declared null and void by the supreme court. "Probably it's that social hous- ing dimension which could see people end up without a home that constitutes the exception- al resistance to erga omnes in this area," Debono says. "A similar situation results in the field of cases relating to right to legal assistance for police suspects and the rule of disclosure... Even though the situation has been rectified by Parliament... yet hundreds of cases have been instituted, some still pending, sometimes with different outcomes even in similar circumstances due to changing stances adopted by local courts and ECHR at dif- ferent times in the last ten to fifteen years. "Erga omnes would have meant uniformity besides spar- ing the law courts from being inundated with a huge multi- tude of cases on the same mer- its, with different, sometimes conflicting outcomes." 11 maltatoday | SUNDAY • 28 JUNE 2020 NEWS Judge Giovanni Bonello (left), former Laws Commissioner Franco Debono, and lawyer Veronique Dalli (right) "With the exception of the UK, almost all the rest of the democratic world follows [this] system" - Giovanni Bonello