Judicial activism

For all intents and purposes, there is no effective separation of powers between the Executive and the Legislative. What remains, therefore, are the Courts.

A couple of weeks ago, the Constitutional Court handed down a judgment that a man’s rights had been breached by the application of rules that impose a 55% penalty whenever a traveller is caught carrying over €10,000 in cash. The man in question was Igaale Ali Muuse, who was arrested at the Malta Airport three years ago after being found in possession of €165,548 in cash. Muuse had declared that he had no cash over the €10,000 allowed in terms of law.

A Magistrates’ Court had found him guilty of the charge and sentenced him to a fine totalling €85,601. Muuse appealed that judgment and requested a constitutional reference, challenging the current regulations on the grounds of disproportionate punishment, legal arbitrariness, and a lack of judicial discretion. The First Hall, Civil Court in its constitutional jurisdiction threw out the applicant’s claim, stating that Muuse had suffered no breach of rights.

Muuse appealed and the matter landed before the Constitutional Court, which has now upheld Muuse’s claims. Citing EU case law, the Court observed that these cash control measures stemmed from EU directives aimed at setting up a system of controls to prevent money laundering and financing of terrorism throughout the EU. Although the EU left it to each member state to introduce a penalty that was “effective, proportionate and dissuasive”, the Court disagreed that the Maltese regulations are such.

The Court noted that, when somebody is accused of carrying more than €30,000, the excess sum is deposited by the Police with the Tax Commissioner for a maximum term of 90 days, dujring which the Police investigate the source of funds and, if any criminal activity is suspected, further criminal action is taken against the accused. In Muuse’s case, the competent authorities had enough time to investigate, for example to establish whether the money was the fruit of money-laundering, but no further action was taken, observed the judges.

Whilst voicing doubt about the source of Muuse’s money, the Court said that the regulation “reduced the judicial process to a mechanical exercise” and totally did away with the Court’s role of applying its discretion to the facts of the case. The Court thus declared that the regulation interfered in a disproportionate manner with the applicant’s fundamental property rights and it struck it down as unconstitutional.

Photo: Pixabay

Why is this case important? The mundane answer would be that the Constitutional Court has once again found the Police totally incapable of doing their job properly, just charging people with a crime and hoping that the Judiciary will mechanically hand down a favourable judgment. But that is myopic. To my mind, the Constitutional Court is confirming once again that it is digging down to the basic principles at the heart of our constitution and interpreting them in ways that constrain the wide liberty previously enjoyed by the Legislative and Executive branches of Government. It seems that, when in doubt, the Court is no longer willing to bow to the latters’ predilection for expansiveness.

Many years back, Justice Emeritus Giovanni Bonello used to rail in the newspapers that our Constitutional Court was a farce. Ok, he might not have used those exact words, but that’s what he intended. For example, in an article on the Online Law Journal (26 February 2015), he had pointed out that the courts of Malta had what was probably the poorest record of success in the European Court of Human Rights (ECtHR) in Strasbourg among all the other European jurisdictions. About 85% of Maltese cases which were examined and determined on the merits by the ECtHR saw the judgements of the Maltese courts being overturned.

In an article in The Malta Independent (24 May, 2020), Judge Bonello claimed that the Constitutional Court had ‘betrayed its duty to repeal unconstitutional laws and was vended to politicians’. In another article under the heading ‘Will we ever get it right?’ in the 24 October, 2022 issue of the Times of Malta, he had accused the constitutional courts of routinely refusing to issue interim measures that would protect plaintiffs in human rights cases.

Separation of powers

This brings me to the question of the separation of powers. Our Constitution is designed to provide for a government sufficiently strong and flexible to meet the needs of the Republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it lays down a balance between society’s need for order and the individual’s right to freedom. To these ends, the Constitution created three independent and co-equal branches of government. 

One of the earliest and clearest statements about the risk that the branches might not be equal was that given by French social commentator and political thinker Montesquieu in 1748: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the power of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.”

One might argue that the legislative and executive powers in Malta are separate. But the Parliament members elected for the governing party, many of whom are in hock to the Exeuctive for providing them with second jobs on government authorities and entities, vote en bloc for anything proposed by the Executive. For all intents and purposes, there is no effective separation of powers.

The Courts’ authority

What remains, therefore, are the Courts. Our Constitutional Court has increasingly been exercising its authority to invalidate legislation or executive actions which, in its considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

The supreme example of this judicial authority was the annulment of the Vitals/Steward Health hospital deal. Had it not been for the Court, we would still be lumbered by a “ħniżrija” that had bled the Maltese people of hundreds of millions of euros. Rather than enjoying the proverbial majjalata, we had become the roasted pigs. Another recent example was the annulment of a Wasteserve €600 million waste plant award which, though on very narrow ‘conflict of interest’ grounds, also pushes forward the good governance agenda.

Other instances of the Court interpreting the provisions of the Constitution for the public good, rather than to accommodate the government, have been various court cases where building developments were found to be in breach of environmental provisions. Perhaps, the grounds for the Court’s decisions were often technical or legal, but at least the authorities are not getting their way all the time.

When the Constitutional Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

I believe that we are seeing the Constitutional Court also increasingly use what is known as statutory construction or interpretation ̶ that is finding ambiguities in the words of a law that must be resolved by the judges. The process is one where the Court looks at the plain language of the law to determine its original intent, for example by ascertaining the intent of the legislature, looking at legislative history, and other related sources.

This gives the Court room to annul laws, particular sections of laws, or decisions that would create an absurd result which it might be said that the Legislature did not intend. In such cases of ambiguity, the court is free to interpret the laws themselves. Once the court interprets the statute, other courts usually will not go through the exercise again, but rather will enforce the statute as interpreted by the Constitutional Court.

A period of ‘judicial activism’?

A friend of mine with whom I discussed this development recently, said that in his opinion we are entering a period of ‘judicial activism’. In other countries, most notably the United States, this has become a pejorative term – a camouflage for the substantive aversions of both liberals and conservatives to certain very sensitive issues. Prime examples of these would be abortion and gun control in the United States. In the UK it would be the question whether the European Convention on Human Rights should take precedence on laws passed by an anti-immigrant government in the House of Commons and/or the House of Lords. In Poland it was whether the European Court of Justice had the right to annul laws that made the Judiciary extremely subject to government interference.

Frankly, I think that my friend was reading a tad too much into recent Constitutional Court activity in Malta. Not that judicial activism might not be a good thing. Yes, if activism means willing engagement in applying the law and the Constitution to scrutinise the acts (or omissions) of the executive and legislative branches. No, if activism means rendering legal judgments based on a judge’s public policy preferences.

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