Issue link: https://maltatoday.uberflip.com/i/1462882
by resorting to such a machi- nation, the Constitution's su- premacy provision would be brought to naught. 9. Whilst direction and con- trol over the WBRU is assigned to the environment minister by and under an Act of Par- liament, the PM has robbed that power from the environ- ment minister to assign it to the Gozo minister. Whatever the WBRU does under the su- pervision of the Gozo minister runs counter to the Constitu- tion. For if the whole notion of constitutional governance is that government is responsible to parliament and acts under the law, how can any WBRU decision, even if taken in terms of a written law (the Regula- tions), be exempted by the PM from being accountable to Par- liament? The Constitution is clear that the Cabinet is 'col- lectively responsible therefor to Parliament'. 10. Several laws were breached through the assignment of the WBRU to the Gozo Ministry: the Environment Protection Act; the Regulations; and the Interpretation Act. But does an unlawful assign- ment of government business by the PM annul all licences issued by the WBRU, even if it complies with the letter of the Regulations? The unlawful assignment has ensured that the environment minister cannot be individu- ally responsible to the House for the WBRU once it has been assigned to the Gozo Minis- ter in breach of the doctrine of individual ministerial re- sponsibility; the environment minister cannot exercise his powers of direction and con- trol over the WBRU under the Environment Protection Act, the Regulations, and the Inter- pretation Act because of the unlawful assignment; the Gozo minister cannot exercise any duties under the Environment Protection Act, the Interpreta- tion Act, and the Regulations as these laws recognize the environment minister as the competent minister; the Gozo minister is not individually re- sponsible to the House for the operation of the said WBRU once the Environment Protec- tion Act, the Interpretation Act, and the Regulations assign him no function whatsoever thereunder. The WBRU is in a situation of lawlessness: the Gozo Min- ister enjoys no power over the WBRU and is not answerable in the House for its actions. The environment minister is answerable for the Unit's oper- ations but it is not allocated to his ministry. Quite a constitu- tional mess indeed! The court should have tak- en a more holistic approach by unravelling government's behaviour that, through such a Macchivellian machination, managed to circumvent the Constitution and ordinary law and, through such measure, nullify not only the Constitu- tion, two acts of parliament (the Environment Protection Act and the Interpretation Act), and one subsidiary law (the WBRU that is 'established within the Ministry responsi- ble for the environment'). From the date when the WB- RU was assigned to the Gozo ministry, it ceased to act with- in the law; instead, it began to act outside the provisions of the Constitution and of ordi- nary law. Its operation became extra legem, tainted by vice, and, therefore, cannot attract the protection of the law for its operation even if, at face value, it was allegedly purporting to comply with the provisions of the Regulations. No recogni- tion, legitimacy and authority could be ascribed thereto as otherwise a court would be jus- tifying an unlawful administra- tive measure. The government would prob- ably argue that the WBRU has the vires to issue licences in terms of the Regulations. But when the WBRU was unlawful assigned to the Gozo ministry, the WBRU ceased to enjoy the protection of the Constitution and of the law, as it became ex- tra-constitution and extra-le- gal. This administrative meas- ure is not only null in itself but also null in its effects: quod nullum est nullum producit effectum. To argue otherwise, would simply nullify instead the Constitution, the Environ- ment Protection Act, the Inter- pretation Act, and the Regula- tions... in other words, the rule of law. Were the court simply to de- clare that the PM was in breach of the Constitution and ordi- nary law and stop there, such declaration would still not have sufficed for what the WBRU does outside the law is not au- thorised by law and therefore extra legem. Acting outside the law means that it cannot con- stitutionally and lawfully claim any authority or legitimacy to issue licences and perform any other duties assigned to it by the Regulations. maltatoday | SUNDAY • 27 MARCH 2022 OPINION 13