Constitution Matters | Giovanni Bonello

I once remarked that the Casino Maltese in Valletta evokes a rather curious sensation of time standing still. And just to compound this impression, four years after first interviewing former ECHR judge Giovanni Bonello there in 2008, we not only settle on the same venue for our second interview... but we also find ourselves seated at more or less the same table, placing the same order (one cappuccino, one espresso lungo) with the same waiter.

There are however a few differences. The place is slightly noisier than usual on account of a full-day conference taking place upstairs. Besides, several of the issues we discussed in our last interview - among them, the perceived unwieldiness of Malta's judicial system, the lack of any right to a lawyer while in police custody, and the incompatibility of justice and home affairs portfolio - have since been addressed (to a greater or lesser degree) on a national level.

Still: I can't help but note a wry comment passed by magistrate Antonio Mizzi - quoted in that same morning's papers - while presiding over a case filed by circus organiser Silvio Zammit.

As if to illustrate the persistent relevance of these same old concerns, Mizzi raised a laugh in open court by observing that: "I have been living in this circus (i.e, the law-courts) for a long time..."

Giovanni Bonello sees the funny side to it; but at the same time observes that the underlying reality is far from amusing.

"I can appreciate the humour, naturally. I'm just not entirely sure about the analogy itself," he begins. "Circuses are primarily there for entertainment: they are supposed to make you laugh. The law courts, on the other hand, represent the epitome of human passion and misery: everything from greed, to hate, to violence, to despair... I wouldn't want to make a circus out of the tragedy of mankind..."

Still, you could argue that the comment does chime in with popular perceptions of the law-courts as being cumbersome and chaotic... if not downright nonsensical at times.

Bonello nods. "Yes, no doubt; and it is a perception that is common to the law-courts in most countries too. Up to a point this is also inevitable. Courts are contentious places by their very nature; whatever they decide will invariable please one party and at the same time displease the other. It is to be expected, then, that in every country, in every legal system, you will find those who are dissatisfied with how the courts operate. And with very few exceptions - because there are instances when people know perfectly well that they are in the wrong - most people who lose their case in court will be convinced that they were all along right, and therefore the victims of an injustice. I'm not saying our law-courts are perfect, mind you. But popular perceptions are often also fuelled by this inevitable sense of disgruntlement..."

These same perceptions also seem to have played a part in the recent pressure that resulted (amid much political brouhaha) in a split between the justice and home affairs portfolio: previously united under the aegis of minister Carm Mifsud Bonnici, but now divided between Mifsud Bonnici and Chris Said.

Leaving aside the political dimension... how does Judge Bonello react to this development, having been among those who advocated precisely such an eventuality as long ago as 2008?

"First of all I would distinguish between theory and practice. In theory there is no doubt to my mind that it was a good move. The two roles can be seen to be incompatible: without going into the merits of the individuals concerned, it remains a fact that the same person cannot foster both the interests of the administration of justice and internal security... at least, not without changing hats several times a day. But in practice it remains to be seen whether the initiative will work in the long run..."

This is a theme to which Bonello will return throughout our exchange: law being after all a primarily practical affair, and initiatives like these being best measured by results, not merely intentions.

Here he reminds me that even if the decision was correct, the reasons for which it was taken were ultimately more theoretical than practical in nature.

"I don't believe Malta was on the verge of revolution because the two ministries had not been separated," he says with a half-smile. "Like I said before it was the right thing to do, for a number of reasons... but at the same time it was clearly not a matter of urgency."

I get the impression, however, that as a country we tend to go about such matters in the most painful way possible. The Cabinet reshuffle is a classic case in point: practically every relevant voice in the country (with the possible exception of the Justice Minister himself) seemed to agree that the change was both timely and necessary. And yet, for all this consensus it still somehow managed to precipitate a political crisis.

Another example - also raised in our first interview - involves the presumed right to legal assistance while under arrest. Back in 2008, Bonello had argued quite pointedly that the government had no justifiable reason to continue delaying the introduction of this right any further. And yet it still took several more years to finally push the changes through, and even then, the final outcome turns out under scrutiny to be considerably less than we were originally given to expect.

Bonello agrees that our approach to this issue has been more tortuous than was really necessary.

"I remember when, back in 2001, a law was finally passed to ensure that persons in police custody would have access to a lawyer. The country had heaved a sigh of relief. But then the same law wasn't enforced for another eight years - and that means another eight years of uncertainty..."

Throughout that period, he continues, the legislators were sending 'mixed messages'.

"On the one hand they signalled that they wanted this right to be in place: otherwise, why would they have passed the law? But by leaving it unenforceable in practice, they also sent out the message that they didn't really want it after all. Eventually it took a Constitutional Court verdict to bring matters to a head: ruling that any confession obtained by the police in the absence of legal assistance is to be considered null and void..."

Bonello asserts that it was only at that point - i.e., when government had no real option, and when there was a very real danger that a number of criminal convictions might be overturned on appeal - that the legal notices were finally published, and the law came into effect.

All the same, he argues that certain intrinsic flaws remain unresolved.

"I am still not entirely happy with the law as it stands, for the simple reason that it only provides for legal assistance before interrogation, not during. This is less than a half-measure: in fact I would say it's at best a quarter measure..."

While conceding that a balance still needs to be struck between the rights of the individual, and the protection of society as a whole, Bonello voices concern that the traditional approach to criminal investigation has been too heavily dependant on securing confessions.

"In years gone by... all the way to the Inquisition, if you go back far enough ... this was done even through use of physical violence. Thankfully we've taken huge strides forward since then: but even if those days are behind us, it is still wrong to leave a person alone, without assistance, in a possibly adverse ambience where they would be at their most vulnerable...". 

Allowing access to a lawyer only before interrogation may be an improvement over no access at all; but it still leaves the individual at an apparently disadvantageous situation vis-à-vis the investigators.

"Personally I would prefer to see the police registering successes in the fight against crime because they are cleverer and forensically better equipped than criminals... and not merely because the entire system is weighted in their favour..."

Moving onto another apparently unresolved issue: earlier Bonello had noted how the Constitution was 'the supreme law of the land'.

But in the meantime I can't help but note a gradual cheapening (or dilution, if you prefer) of the same Constitution: the document being routinely trotted out by politicians who seem to treat it (and here I stress that this is only an impression of mine, albeit founded on close observation) for all the world as if it were a panacea to all their own political problems.

The present administration has in fact consistently sought to amend the Constitution in a wide variety of ways - starting with a national campaign to lift the abortion ban out of the Criminal Code, and Constitutionally entrench it with the declared aim of limiting the options of future generations when it comes to legislating for themselves.

The latest attempt to reconfigure the Constitution takes the form of a proposal by Prof. Kevin Aquilina, Dean of the Faculty of Law, to legally codify the precise circumstances in which a Cabinet minister ought to be assume his political responsibility.

I have two questions about this: one, isn't there a danger that, by constantly tinkering with the Constitution in this way, we may eventually distort it into something that no longer serves the same original scope and legal function? Two... what does Bonello himself make of a Constitutional proviso to regulate such matters as a minister's decision to resign? (Or to put the question another way: if a minister is left with no option but to resign under constraint by law... wouldn't that, by definition, longer count as a 'resignation' at all, but a dismissal?)

Regarding the first consideration, Bonello asserts that he is all in favour of updating the Constitution... "so long as it is not trivialised in the process; so long as it does not become a receptacle for every whim that is topical at the moment..."

He continues: "There are certain norms and rights that are so basic that I don't want Parliament to go about tinkering with them in future - for instance, fundamental human rights. So long as those are entrenched, I would say: so much the better. They are too important to be dependant on something as transient as a national majority..."

As for the second issue, Bonello admits he is somewhat confused by the current proposal to 'regulate' ministerial responsibility by means of Constitutional amendment.

"I have a lot of respect for Prof, Aquilina, and have no doubt he would have thought this proposal through properly. Still, I haven't understood the aim. It sounds a lot like reinventing the wheel to me..."

Such matters as ministerial responsibility and culpability are by definition political concepts, he argues; and as such it is debatable how effectively they can be regulated at law.

"There is already a tried and tested system in place for that purpose, and it is essentially political in nature. Every five years a political party will seek a mandate, and will be judged by the electorate on the basis of its performance, and so on..."

This in turn suggests that it is in the nature of such matters to regulate themselves; not only that, but Bonello also perceives a potential danger in making any such legislation too circumstance-specific.

"Putting too many safeguards will start eating away at the underlying notion of 'collective responsibility', which by the way is a very British concept," he points out. "Bear in mind that in the British system it is Parliament, and not the Constitution, that is supreme. Even so, the more you codify any given law, the more loopholes you will invariably create. Admittedly this does not apply to criminal law: which does have to be as specific as possible. To give a basic example: you can't pass a law which makes 'ungentlemanly conduct' a criminal offence, without specifying exactly what is meant by 'ungentlemanly conduct'..."

Turning from a hypothetical to a very real scenario, Bonello recalls how a law had been passed locally some 30 years ago to criminalise the act of 'making an unreasonable profit'.

"Eventually it was challenged in the Constitutional court, which found that the law was too generic to be applicable in practice. After all, how much profit is considered 'unreasonable'? By whose definition? And according to what criteria? "

It is a consideration that works both ways. Coming back to the proposal currently before parliament, Bonello envisages a scenario where, no matter how many specific circumstances are proscribed, there could always be a single case in which the circumstances do not reflect those written into the law. In this scenario, he indicates that the same law could conceivably be invoked to side-step ministerial responsibility; thus defeating the very purpose it originally intended to achieve. "Though having said all this, I must admit I do not have strong opinions in the matter either way..."

While we are on the subject of the Constitution, Bonello volunteers another dimension which - by way of contrast - he does consider to be a very serious matter: the fact that several laws have been declared 'unconstitutional' by the Constitutional courts, and yet have unaccountably remained in place, as Parliament never took the initiative to repeal them.

"Our legislative model is based on the notion of the supremacy of the Constitution: which technically implies that there can be no authority above Constitutional law," Bonello explains. "But in practice it doesn't seem to work that way. What happens when the Constitutional court rules a law to be unconstitutional? For me, that should be the end of story. If the Constitution really is supreme, then any law declared 'unconstitutional' should be automatically declared null and void..."

However, Bonello adds that this is not how things pan out. "In Malta, everyone seems to have accepted that in such cases, the Constitutional Court's ruling would only be applicable to the particular case in which it was handed down. The law itself, however, will remain in place until it is repealed by Parliament... even though it has been declared unconstitutional."

Bonello further notes that in several cases in the past, Parliament never got round to repealing such legislation... with the result that the statute book still contains a number of laws that have been declared technically illegal.

"In practice we have effectively subverted the principle of the supremacy of the Constitution, upon which our legal is supposed to be based. The result is that Parliament is free to pass as many unconstitutional laws as it likes, and those laws will remain in place until Parliament itself decides to remove them."