[WATCH] Constitutional courts must stand up to parliament – Giovanni Bonello

Former European Court of Human Rights judge Giovanni Bonello

In the first part of a two-part interview on Reporter, former European Court of Human Rights judge Giovanni Bonello expresses his concern on the fact that several laws have been declared 'unconstitutional' by the Constitutional courts, and yet have unaccountably remained in place. This because Parliament has not yet changed or removed them.

"I believe that the Constitutional courts have taken a wrong turn since the beginning of human rights in 1961. The role of such court is to rule whether a law is constitutional or not. However, when it decides that a law is 'unconstitutional' nothing happens until parliament changes it. It has sort of given parliament the licence to supersede its ruling," Bonello tells Saviour Balzan.

"So until parliament repeals such legislation, the Constitutional court tells the courts that the law must still be applied, even though it would be unconstitutional."

Bonello said this was a grievous matter and insisted that the Constitutional court should stand up to parliament. "It shouldn't go on, giving the impression that its job is to simply give an opinion, while parliament decides in its own time what to do with that particular law. Some laws have been declared unconstitutional over 10, 15 years ago, and yet they are still applied today," he said.

"For me, when the Constitutional court declares a law unconstitutional, it should be the end of the story and the law automatically becomes null."

Second part of the interview will be aired tonight on Favourite Channel at 7:45pm

Miriam Dalli joined MaltaToday.com.mt in 2010 becoming assistant editor f...

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"The Constitutional court tells the courts that the law must still be applied, even though it would be unconstitutional." We truly live in a country of the absurd Not even Ionesco in his theatre of the absurd would conceive such a nonsensical and illogical situation. A constitutional court insisting that the courts act unconstitutionally is just an amazing statement worthy oonly of being posed in a philosophy of law exam or in "The law is an ass" seminar.

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This shows how the arrogant Gonzi Government is blatantly violating the Constitution and illegally collecting millions of Euros of fines from the pockets of the citizens. In fact, after the decision in the mentioned case of Maria Victoria Borg et, another case has been instituted against the Prime Minister "Cit 1118/09RCP fl'ismijiet - Borg Joseph et vs Onorevoli Prim Ministru et to declare the reserved parking regulations unconstitutional. This case was filed on 16/11/2009 and the next hearing which is for the presentation for the report is on 19.04.2012 at 0900. Those who are issued with a ticket for parking in resident only areas should not pay and send a petition and if the petition is not granted contest the charge and if the local tribunal still fines them they should appeal because the arrogant Gonzi regime is illegally taking money from your pockets. The authorities are doing this because they know that many people will not contest the fine and simply not to waste time, but if everybody started contesting the fines including with an appeal the authorities will find that the people are united against their illegal fines.

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This shows beyond a shadow of doubt that the reserved parking system is discriminatory against non-residents. Furthermore, reference can be made to a report by David Darmanin published by Malta Today on Sunday 6 July 2008 http://www.maltatoday.com.mt/2008/07/06/n3.html with the heading "More than 16,000 fines issued illegally for ‘reserved parking' " where it was reported that apart from the illegal fines, residents in a cul-de-sac in Attard had asked ADT to reserve a few parking spaces for two hours for residents only and, quoting from the report, “Ultimately however, the best solution would be to assign the only 5-6 parking spaces available in the area as ‘residents only parking’ between 12:00 and 14:00.” Within a few days, the ADT replied to inform the complainants that: “Residents Only Parking and Access for Residents Only are not approved by the Traffic Management Unit since these are discriminatory.”

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This is not all. The Firsh Hall of the Civil Court in the case Citazzjoni Numru. 949/2004 Maria Victoria u Joseph konjugi Borg vs Sindku u Segretarju Ezekuttiv in rapprezentanza tal- Kunsill Lokali Pieta` presided by ONOR. IMHALLEF LINO FARRUGIA SACCO decided on Seduta tal-31 ta' Jannar, 2007 that "...Tiddikjara li l-impozizzjoni ta’ zona riservata ghar-residenti hija ‘ultra vires’ is-setghat moghtija lill-Kunsill Lokali li jaghmel ‘bye-laws’ a tenur ta’ l-Att XV tal-1993 dwar il- Kunsilli Lokali fuq dan l-aspett, minbarra li hija mizura preferenzjali;". Notice the last part "minbarra li hija mizura preferenzjali" which means that since it is preferential measure favouring the residents it is discriminating against non-residents against Article 45(1) of the Constitution. This case has also been upheld by the Court of Appeals presided by S.T.O. PRIM IMHALLEF VINCENT DE GAETANO, ONOR. IMHALLEF JOSEPH A. FILLETTI,ONOR. IMHALLEF GEOFFREY VALENZIA, Seduta tad-19 ta' Mejju, 2009, Appell Civili Numru. 949/2004/1, decided that "....Ghall-motivi premessi, u ghalhekk mhux neccessarjament ghall-istess ragunijiet kollha kif migjuba fis-sentenza appellata, tichad l-appell u tikkonferma dik issentenza."

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Furthermore, Article 45(2) of the Constitution clearly states that "Subject to the provisions of sub-articles (6), (7) and (8) of this article, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority." This means that all the wardens, their companies, the local councils and the Commissioners for Justice who are applying and enforcing these regulations are clearly violating the Constitution because they are using a discriminating law (regulations) to discriminate against non-residents. Furthermore, Article 46(3) of the Constitution states that "If in any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the said articles 33 to 45 (inclusive), that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this sub-article and, subject to the provisions of sub-article (4) of this article, the court in which the question arose shall dispose of the question in accordance with that decision." It is pertinent to ask whether this matter has been brought up before any Local Tribunal and whether it has been acceded to.

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Judge Giovanni Bonelli is perfectly correct. The Gonzi Government is so arrogant that laws declared unconstitutional or which clearly breach the Constitution are still applied discriminating against the citizens. A typical example are the reserved parking for residents where residents can park without any hindrance while non-residents have either to pay extra and cannot park except in particular spaces like in Valletta or can only park for a limited time. These regulations are against the Constitution Article 45(1) which states that no law can be discriminatory either in its provisions of its effects. Clearly, the reserved parking is discriminating against non-residents against the provisions of the Constitution.

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Judge Giovanni Bonelli is perfectly correct. The Gonzi Government is so arrogant that laws declared unconstitutional or which clearly breach the Constitution are still applied discriminating against the citizens. A typical example are the reserved parking for residents where residents can park without any hindrance while non-residents have either to pay extra and cannot park except in particular spaces like in Valletta or can only park for a limited time. These regulations are against the Constitution Article 45(1) which states that no law can be discriminatory either in its provisions of its effects. Clearly, the reserved parking is discriminating against non-residents against the provisions of the Constitution.

[WATCH] Constitutional courts must stand up to parliament – Giovanni Bonello

Former European Court of Human Rights judge Giovanni Bonello says laws that the Constitutional court has declared ‘unconstitutional’ 15 years ago, are still applied today.