Issue link: https://maltatoday.uberflip.com/i/1264355
10 maltatoday | SUNDAY • 28 JUNE 2020 NEWS MATTHEW AGIUS THE Maltese government is holding out on requests from the Council of Europe's Venice Com- mission to automatically strike off unconstitutional laws, because of laws protecting low rents for peo- ple living in their homes since the late 1970s. Legal experts agree that the government's insistence not to apply the "erga omnes" (towards all) doctrine by immediately changing laws found to be illegal by a Constitutional court, is to prevent a mass eviction of peo- ple whose low rents have been protected by declared unconsti- tutional laws. But this system, adopted by the majority of countries around the world, has led to divergent views: is it better to have all cases dealing with the same le- gal principle decided in one fell swoop and potentially infringe the rights of third parties, or should every case be decided in isolation, increasing the burden on the courts and the individuals concerned? Lawyer Veronique Dalli argues for the latter option, saying the system as it stands protects vul- nerable persons in certain rent- ed properties. "As a rule, a judgment binds the parties to the case. The gov- ernment saw that third parties who are not litigants would not be affected by such judgments, where a breach of the Constitu- tion or the European Conven- tion on Human Rights is found. "In practice, there is an estab- lished legal procedure enshrined in the law: when a judgment finds a breach of the Constitution, this is transmitted to the Speaker of the House. The majority of such judgments are then reflected in laws which would be changed by Parliament with the aim of mak- ing such laws compatible with the Constitution or the Conven- tion." As Dalli says, however, the gov- ernment so far has felt it should not bind itself to an automatic mechanism or fixed term to re- flect unconstitutional sentenc- es into law. "The reason is that there could be judgments which would have large socio-econom- ic implications for our country, such as the ground rent sector and certain rented properties which are occupied by vulner- able persons. I believe the gov- ernment has an obligation to protect these persons." Not everyone agrees with this position of course. The retired European Court of Human rights judge and constitutional law expert Giovanni Bonello is critical of the Maltese system, which only allows the courts to declare an unconstitutional law invalid against the person who challenged it – but not erga omnes. "With the exception of the UK, almost all the rest of the democratic world follows [this] system. There is a supreme law – the Constitution – and Par- liament has to respect the Con- stitution when making laws," Bonello insists, saying that any law incompatible with the Con- stitution, should therefore be void. "Constitutional Courts are, or should be, the inflexible watchdogs over this supreme value of democracy – that noth- ing against human rights and the constitution survives in the legal order." Judge Bonello also says this doctrine meant that a law could be both "alive" and "dead" at the same time. "A law can be 'inconsistent with the Constitution' for either of two reasons – because it violates human rights, and because it vi- olates any other provision of the Constitution. Now the discovery of the century," he notes sardon- ically, "made by the Maltese con- stitutional judges, and by nobody else in the whole wide world, is Protected rents still holding back automatic change of laws ruled unconstitutional