2.13.1I have some concern about the apparent reluctance/incapacity of the Court of Justice to engage (possibly due to the absence of fuller Treaty powers) in an in-depth review of EU law and of national implementing law by fully applying the constitutional principles applicable, including the principle of subsidiarity, the principle of proportionality (including to national measures adopted to implement EU law) and settling human rights ‘values issues’, from an EU legal order per-spective, thus omitting to give, in many cases where such clarity is warranted, a clear indication to the Member States that EU law is considered valid and applicable/inapplicable in certain ways. In exercising this jurisdiction, the Court of Justice would be guided by the (possibly revised) principles referred to in Sect.2.12.3above.
2.13.2 Exceptions have on the whole been made due to necessity and as propor-tionate, as in the case overall of the European Arrest Warrant. Nevertheless, the system may be permitting a lowering of standards in the European context, and permitting Member States to deny certain Treaty rights without fullest account-ability. In my view, the ex ante and ex post controls in place against possible excesses can be improved, even from an‘efficiency in integration’perspective, for doubts and differences in Member States need to be ironed out before the stage of implementation if EU law is to be applied uniformly throughout the Union at the point when this is supposed to happen. At that stage it should be clear that the EU measure is legitimate, both because it is consonant with EU constitutionality and fully respectful of essential national constitutionality. Any shortcomings have probably been due to inadequate awareness, itself possibly due to the Union decision-making structures not being fully geared to the constitutional dialogue needed between the Union institutions and the Member States, and also due to some deficiency in the rules to be applied in such debate, i.e. the constitutional metarules –such as the reach of the principles of subsidiarity and proportionality (including the ability to raise a reasoned objection on the basis of the latter principle as part of theex antemonitoring of EU proposals in national parliaments).
In my view, as long as the system ensures that subsidiarity and proportionality are applied at all levels, and access to a court in order to test their application is guaranteed, then the Court of Justice must be permitted to review Union acts and also national implementing acts for conformity with such acts. An EU Constitutional Court, as has been advocated by some over the years, might be the best candidate for such a role. At this point it then becomes important for the European Convention regime to operate with effectiveness upon the EU legal order, including upon the judgments of the Court of Justice, without unquestioned and
irrebuttable presumptions as to equivalence of protection or compliance, but with application of a review function over the prior control by the Court of Justice over the exercise of any margin of appreciation. The ECHR’s minimum floor of pro-tection would operate as such, preventing action from swinging beyond the extreme on any one side of a conflict of rights (values) issue. There would end the role of the European Court of Human Rights in Strasbourg (ECtHR). Otherwise, it would be for the Court of Justice (or a Union Constitutional Court) to determine whether an EU law was or was not respectful of EU constitutional law in all its aspects – including respect for common constitutional traditions and the essence of each Member State constitution.
2.13.3 No constitutional issues have been raised by the Maltese courts in a pre-liminary ruling request. However, as a matter of personal opinion following on from previous replies, the responsiveness of the CJEU will take the form of a revised role for the CJEU–or for a Union Constitutional Court if one were created.
The Court would have a defined constitutional jurisdiction modelled on the very multi-level or horizontal (as I prefer) constitutionalism of the Union. Due deference would need to be paid to the essence of each national constitution, and to national identity as protected therein, while the principles of constitutional validity would be fully and better articulated and enforced at each ‘level’ (in each sphere).
Comparative law techniques would serve as the basis for identifying and inter-preting rights as part of the common constitutional traditions of the Member States.
Similar rules would apply for establishing common values, which could also be articulated in the Treaty. Besides a strict review of EU measures, I would also favour dialogue about diversity, possible convergence through dialogue and then a degree of EU-level judicial review of national implementing measures for their observance or failure to observe the limits of the permitted exceptions to the exercise of Treaty rights and respect for recognised human rights and fundamental freedoms. The Treaty and the Charter oblige Member States to observe the Charter in implementing EU law. The EU Court must exercise full competence in this matter, including as to the limits on any margin of discretion permitted a Member State, while taking due account of such essential constitutional‘essence’as may be asserted.
2.13.4 In my view it would be legitimate to ask national institutions to be more pro-active in upholding the rule of law at Union level by ensuring a proper mesh with the national level. This could be done through proper implementation by the legislature or proper guidance by the national constitutional court, which could perhaps be given anadvisory jurisdictionin such matters,62without encroaching on
62 I envisage a kind ofex anteadvisory constitutional jurisdiction, where the court indicates how in abstractoit would tend to view a certain issue from the constitutional perspective. This is different from the situation that exists in Malta, where the Constitutional Court has no advisory jurisdiction. It simply sees itself as having no competence to declare laws invalid, and it is of no effect if the ECtHR has declared them to be in breach of the Convention and therefore of the European Convention Act of Malta. This reduces the judgments of the ECtHR to mere‘advisory’
parliamentary privileges such as the latter’s role in monitoring the principle of subsidiarity and, I would add, proportionality, which is also properly seen as a constitutional principle. The national constitution should make as clear as possible what is within its essence (within the meaning of Art. 4(2) TEU) even if this means a new constitutional exercise at national level, possibly on the basis of a template to be prepared by the drafters of this Treaty provision.63It is important that reference also be made to the other key constitutional value of the Union, namely solidarity, to emphasise the obligation to safeguard human and fundamental rights but above all the dignity of the person in all circumstances of Union action in each Member State. In this way the human dignity of the citizen will be placedfirst and foremost in the EU constitutional schema that consists both of the Treaty and national constitutions in the context of human and fundamental rights protection. True two-way loyalty, solidarity and goodwill in a properly synchronised constitutional space in the Union, offering respect for national identity and essential constitutional provision in each Member State, arguably require a fuller monitoring mechanism than only in relation to the principle of subsidiarity and only in virtue of a rather large number of objections. As far as respect for Art. 4 TEU is concerned, anex anteobjection procedure, and anex postjudicial review by the Court of Justice in dialogue with the national constitutional court, might be contemplated. The author believes that the opportunity should be taken as it arises to refine and develop Art. 4 (2) TEU, possibly by identifying the essential values constitutive of national identity (possibly on a ‘compatibility with common traditions’ test) and as high-lighted in apposite national constitutional provisions.
3 Constitutional Issues in Global Governance
3.1 Constitutional Rules on International Organisations and the Ratification of Treaties
3.1.1 As to transfer of powers, reference has been made above to the ‘EU amendment’made to Art. 65 of the Constitution on the exercise by Parliament of its legislative power. Not framed expressly as a transfer of power clause, but rather as an enabling and delimiting (limitation) clause that focuses on the exercise – by objective or purpose– of legislative power by the Parliament of Malta, the clause does not in express terms‘permit’but rather appears to‘recognise’the (therefore, presumably, inherent) capacity of the Maltese Parliament to transfer legislative
opinions, except in the case of the solution proposed here, where the judgment of the Constitutional Court would be applied.
63 Art. 4(2) TEU could be further developed from a synchrony, and mutual respect and loyalty, perspective.
power pro tempore and pro tanto to the EU institutions or any international organisation or other entity by assuming international obligations which have that effect.
There is a general listing of particular objectives and of specific values and principles to be upheld when participating in international co-operation, such as might condition, and delimit the scope for, the exercise of this power. The power under Art. 65 must be exercised ‘for the peace, order and good government of Malta’ and‘in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations in particular those assumed by the treaty of accession to the European Union signed in Athens on the 16th April, 2003 [emphasis added]’. The words in italics indicate by reference that the objectives must be in conformity with the principles of international law and Malta’s obligations under the Treaty of Accession to the EU.
The provision therefore enshrines a loyalty obligation to the international rule of law and to the objectives and values that Malta shares as a member of the inter-national community governed by interinter-national law and as a Member State of the European Union.
Additionally, Art. 1(3) of the Constitution declares that‘Malta is a neutral state actively pursuing peace, security and social progress among all nations by adhering to a policy of non-alignment and refusing to participate in any military alliance…’
(see further in Sect.3.1.3).
By Art. 3(1) of the Ratification of Treaties Act, Act V of 1983,64where a treaty is one which affects or concerns (a) the status of Malta under international law or the maintenance or support of such status, or (b) the security of Malta, its sover-eignty, independence, unity or territorial integrity, or (c) the relationship of Malta with any multinational organisation, agency, association or similar body, such treaty shall not enter into force with respect to Malta unless it has been ratified or its ratification has been authorised or approved in accordance with the provisions of the Act. The Act then provides in Art. 3(2) that in the case of (a) or (b) above, or where the treaty contains a provision which is to become, or be enforceable as, part of the laws of Malta, the ratification or the authorisation or approval of the ratifi -cation shall be by Act of Parliament. Article 3(3) expressly provides that no treaty shall become, or be enforceable as, part of the law of Malta except by or under an Act of Parliament. Here then, we have a strong form of dualism as far as concerns treaties falling within the scope of Art. 3(1). On the other hand, as to treaties that do not fall within the scope of Art. 3(1), Art. 5 provides that the Government’s powers are not similarly constrained. Authorisation to ratify the Treaty of Accession of 16 April 2003 was given to the Government by Art. 6 of the European Union Act 2003.
There are no provisions in the Constitution specific to any international organ-isations or institutions other than the EU via reference to the Treaty of Accession of 2003.
64 http://justiceservices.gov.mt/LOM.aspx?pageid=27&mode=chrono&gotoID=304.
3.1.2Article 65 was amended by Art. 7 of the European Union Act 2003 to include express reference to the ability of Parliament to legislate‘in conformity with’the obligations assumed by membership of the Union.65It does not use the language of power to transfer or delegate powers. The wording appears to effect a‘clarification’ of the‘breadth’of the Maltese Parliament’s powers, which are assumed to include the power of transfer or delegation to organisations such as the EU. This would tally with the minimalist logic of a‘nation-oriented’or‘domestic-centred’constitution that sees and presents things from a domestic perspective (the powers of Parliament and their extent, rather than expressly conferring a transfer of power competence which would allow it to be said that a transfer had taken place) even if international obligations are undertaken that will at least pro tempore radically alter the leg-islative dynamic and bring into play a multilevel system of governance and con-stitutionalism. I believe this was partly a matter of constitutional culture, and perhaps partly a matter of deliberate political judgment as to what was acceptable to the people in 1993, as well as practicable (including acceptable to the opposition) in terms of constitutional amendment in order to ‘accommodate’ the idea of EU membership, as well as partly the fact that the future of Europe debate was still in train and academic rationalisations about European constitutionalism were in their youth, if not infancy. The language is the neutral language of stating that Parliament may legislate in order to transpose/transform a treaty (and obligations thereby assumed) into Maltese law–the classic dualist approach to international treaty law – without really addressing the fundamental constitutional issue of transfer of powers head on. In other words, the relative obligations are regarded as‘assumed’ already by the treaty of accession, but made binding in Malta by virtue of the European Union Act passed in accordance with the parameters set out in Art. 65.
Again, it seems that all drafting was done by the Advocate General’s office.
3.1.3 The courts, the Government or Parliament have not sought to re-open the question considered in the previous paragraph. On the other hand, it is different with regard to Malta’s neutrality, which might be seen as an obstacle to full international co-operation whether at EU or even global level. Malta’s neutrality was introduced, defined and enshrined in the Constitution in 1974, with amendment in 1987, in Art.
1(3) of the Constitution which reads:
Malta is aneutral stateactivelypursuing peace, security and social progressamong all nationsby adhering to apolicy of non-alignmentand refusing to participate in any military alliance. Such a status will, in particular, imply that: (a) no foreign military base will be permitted on Maltese territory; (b) no military facilities in Malta will be allowed to be used by any foreign forcesexceptat the request of the Government of Malta, and only in the following cases: (i) in the exercise of the inherent right of self-defence in the event of any armed violation of the area over which the Republic of Malta has sovereignty, or in
65 Art. 65 of the Constitution reads: ‘65. (1) Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Malta in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations in particular those assumed by the treaty of accession to the European Union signed in Athens on the 16th April, 2003.’
pursuance of measures or actions decided by the Security Council of the United Nations; or (ii) whenever there exists a threat to the sovereignty, independence, neutrality, unity or territorial integrity of the Republic of Malta; (c) except as aforesaid, no other facilities in Malta will be allowed to be used in such manner or extent as will amount to the presence in Malta of a concentration of foreign forces; (d) except as aforesaid, no foreign military personnel will be allowed on Maltese territory, other than military personnel performing, or assisting in the performance of, civil works or activities, and other than a reasonable number of military technical personnel assisting in the defence of the Republic of Malta;
(e) the shipyards of the Republic of Malta will be used for civil commercial purposes, but may also be used, within reasonable limits of time and quantity, for the repair of military vessels which have been put in a state of non-combat or for the construction of vessels; and in accordance with the principles of non-alignmentthe said shipyards will be denied to the military vessels ofthe two superpowers[emphasis added].
As I have written elsewhere,66it is arguable that the second clause of paragraph (e), in particular, may be regarded as redundant in light of the ending of the Cold War (at least thefirst one, for we may be on the threshold of the second). It has also been argued that the entire provision centres around a policy of‘non-alignment’(as between‘the superpowers’–which may now bemorethan the‘old’two, at least in prospect), rather than strict neutrality, and that non-alignment is not afixed concept in international law but must bear reference also to the climate of the time when the provision was adopted. This type of reasoning calls much into question, also in light of the evolution of the role and competence of the Union in the sphere of Foreign and Security Policy. One recalls the duty of loyalty under the Treaty but also the objectives of the Union especially post-Lisbon. Indeed, the provision speaks of an
‘active’neutrality, one that is intended to actually permit Malta to be pro-active in the pursuit of peace, security and social progress among all nations. This does not indicate a passive stance. While participation in a military alliance is excluded (Malta was told in the course of membership negotiations that the EU was not such and was not to become such), the ban on the use of Maltese facilities by foreign military forces is open to a number of exceptions, one of which is the pursuance of measures or actions decided by the Security Council of the United Nations. This all shows that the matter is not clear cut, and that some think that an attempt at
‘clarification’of Malta’s international active neutrality status should be made in any constitutional review exercise that may be undertaken if this status is to be generally understandable within the context of our membership of the EU and within the new global context. Therefore, the neutrality clause is one clause that has been identified as being in need of review/revision in light of developments relating to Malta’s EU role and to changes on the international scene.
3.1.4The declared constitutional commitment of Malta to the social progress of all peoples will be commented upon in response to question 3.5. Suffice to point out
66 See Xuereb2001,2006. See also EC Directorate, Ministry of Foreign Affairs, Department of Information Report, 1990, pp. 153–154.
here that Art. 1(3) commits Malta to actively pursue some global desiderata.
Malta’s neutrality was seen as a means to that end. The commitment is to actively use our status as a non-aligned independent state with a wide range of commercial, cultural and philosophical ties as well as proximity to the two main sides of the Mediterranean putting us on the frontier with the Arab world and Africa, and placing us at the centre of all Mediterranean states, and to do so for peace, pros-perity and justice. Malta’s foreign policy has rested on these pillars ever since. It might be termed Malta’s international vocation, as enshrined in its Constitution.
Any revision of the Constitution can be expected to build upon the perceived international vocation of Malta going forward into the future. I therefore certainly do not exclude the possibility of developing this clause into one mandating a more general pro-active and active approach to upholding democracy, the rule of law and human rights in the context of global governance, while placing this also in the context of EU membership.
3.2 The Position of International Law in National Law
3.2.1–3.2.2As emerges clearly from Art. 65 of the Constitution, and Art. 3 of the Ratification of Treaties Act of 1983 as amended, Malta is in principle a dualist state.
Although there has been no real debate on this in Malta, Malta is aware of the fact that some other Member States adopt a monist stance–at least when it comes to membership of the EU, but often as a general stance. There have been no arguments in favour of abandoning the dualist stance, although again Malta is aware that the European Union Act 2003 has the effect of making ‘directly applicable’EU law directly applicable in Malta, and that this is not a strict dualist position, but then it is recognised that EU law is not ordinary international law. In short, in my view constitutional constructs and doctrines apply as modified and transformed in the EU membership context. We need to be constantly aware of thesui generisnature of the EU and its legal order. It is this new order that can then help explain, inform and give language to the new constitutionalism in Malta itself and at the same time to the regional and world orders now evolving.
3.3 Democratic Control
3.3.1There have been occasional calls for a greater roleex antein foreign affairs for the Maltese Parliament. For example, it was a cause of some chagrin when a commitment was given in relation to Partnership for Peace involvement (re-activation) without any reference, far less discussion, in the House, leading to
the resignation of the head of the Maltese representation in Brussels.67 Another example is the granting of permission for warships to use Maltese shipyards.
In terms of thinking about Parliament’s involvement at the stage of imple-menting international commitments, a useful starting point is the case of the EU, with two key examples being the need to transpose directives and the ex ante scrutiny or ex post challenge of Commission proposals/adopted legislation for compliance with the principle of subsidiarity. A key development, in the author’s view, would be theex ante scrutiny of a European Commission proposal or any Union act for compliance with human rights in accordance with the national con-stitution. Issues have arisen in Malta in relation to the principle of proportionality, where Malta took the position that a proposal went against the principle but had to accept the Commission’s stance that the procedure of ex ante control does not extend to this principle, despite the wording of the title of Protocol No 2. The Latvian example on the IMF conditionality given in the questionnaire shows that other issues can arise, in the broader context of global governance, in relation to other general principles of law, which should be recognised as having constitutional status.
3.3.2The Constitution neither expressly permits nor prohibits the holding of ref-erendums on international organisations or international treaties. This does not mean that a referendum may not be held, but simply that it has no constitutionally binding effect, so that any result is binding only in political terms. Such was the referendum of 2003 on the question whether Malta should join the European Union.
3.4 Judicial Review
3.4.1There is no mechanism in Maltese law for the review of Treaties and measures adopted under international law, separate from the challenge of the Maltese implementing decisions or laws under the Constitution. In this connection, the institution of a mechanism at EU level for the challenge of a prospective EU measure for breach of some general principle of law would allay the need for an individual Member State to raise the issue of validity of EU law under constitu-tional lawex post, for it would raise the issue as a‘constitutional’issue under EU law of the validity of the measure of another international organisation directly within the EU. There should, however, be some mechanism which would permit a Member State to participate in the Union review process. Similar thinking ought to take place in the context of global governance.
67 Vella, M. (2012, April 20) Update 2 Government reacts to Labour motion for Richard Cachia Caruana’s resignation. Malta Today. http://www.maltatoday.com.mt/news/national/17598/labour-motion-calls-for-resignation-of-richard-cachia-caruana-20120420#.
3.5 The Social Welfare Dimension of the Constitution
3.5.1The debate as to‘social Europe’at the time of the referendums on the Treaty establishing a Constitution for Europe (the so-called and ill-fated‘Constitutional Treaty’) was closely followed in Malta. The social dimension of the Treaties is an important one in Malta’s eyes. The accountability of the institutions, and of all decision-makers, including in the economic sphere, and of the new ‘European’ regulators, is a matter of real interest, which many in Malta trust will continue to be addressed at all levels and especially throughout the sphere of economic and financial governance. It would be well for the principles and liabilities to be expressly spelt out and for appropriate investigative mechanisms to be put in place, thus mirroring political accountability under the national constitutions. There is every reason to extend this, possibly by EU initiative, to non-EU, globalfinancial and economic institutions.
3.5.2 Malta has not been subject to a bailout and austerity programme. It has watched with concern as others have defaulted or been rescued, and it has been with a degree of chagrin that Malta has had to accept the imposition of central solutions against the wishes and to the sacrifice of whole populations while proper accountability and punishment appear to have been lacking both in the public and in the private spheres in those Member States in which the worst defaults were committed. Nor have Member States been able to agree easily on the solutions, demonstrating that solidarity could be better organised and underpinned by the European constitutional level.
3.6 Constitutional Rights and Values in Selected Areas of Global Governance
3.6.1Regarding the proposition about the erosion of constitutional rights, the rule of law, judicial review, democratic control, or accountability in the face of global threats or pressures, Malta has not remained entirely untouched but has, in general, not had to adopt draconian anti-terrorist legislation and so on of its own beyond what has been adopted at European Union or other wider international level.
References
Aditus et al. (2014) NGO Submissions to the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties (Human Rights & Equality Consultation) March 2014. http://aditus.org.mt/
Publications/scopinginput_032014.zip.
Azzopardi A. (2012) Malta. In: Laffranque J. (ed.) The Protection of Fundamental Rights Post-Lisbon, Reports of the XXV FIDE Congress Tallinn 2012, Vol. 1, Tartu University Press, Tallinn, pp. 627–640.