In approaching the claims advanced by ADPD and its candidates, one cannot but record a measure of admiration for the intellectual ambition of their challenge. Even for readers who may ultimately accept the outcome reached by the Constitutional Court, the applicants’ submissions remain striking for their clarity, inventiveness, and disciplined attempt to expose a structural blind spot within Malta’s electoral constitutionalism: the lived phenomenon whereby substantial electoral support may repeatedly fail to crystallise into representation, while constitutional “corrective” mechanisms are triggered only within the parliamentary sphere already occupied by the larger parties. It is precisely because their argument is intelligent and interesting—because it is not a mere political lament, but a carefully framed constitutional critique—that the decision merits a calm academic reading.
Let us examine the facts.
The litigation brought by ADPD and its candidates was, at its core, a familiar democratic lament: a sizeable number of votes—4,747 across candidates—translated into no parliamentary seat, while post-count constitutional “corrective” adjustments and the gender mechanism operated only within the two-party parliamentary universe. The claim, put at its most intuitive, is that a constitutional architecture that perpetually rewards only those who already enter Parliament is difficult to reconcile with the moral promise of political equality. The Court’s answer, however, did not turn on whether the complaint feels normatively persuasive. It turned on whether Maltese constitutional adjudication—as currently authorised—permits the judiciary to declare a constitutional provision invalid by measuring it against other constitutional provisions or against the European Convention as domestically incorporated. On that narrower question, the reasoning is not irrational – to me, it is a stringent, text-anchored account of competence, hierarchy, and legal method.
The background is important. The appellants complained that, once the March 2022 election result was “adjusted” under the Constitution and the electoral regulations, their party’s votes were effectively ignored, and they argued that the corrective mechanism (Articles 52 and 52A) and the gender mechanism (tied, in their submissions, to other provisions) produce discriminatory effects against smaller parties and chill free association and free electoral choice.
The First Hall dismissed the claims, and the Constitutional Court confirmed the dismissal, primarily by embracing two linked propositions: first, the Constitution cannot be treated as “inconsistent with itself” within Maltese constitutional litigation, second, the European Convention’s domestic effect, via Chapter 319, expressly excludes the Constitution, so the Convention lens cannot be used to strike down constitutional text.
- The Court’s first move is jurisdictional, not emotional: Article 6 as a gatekeeper of the object of constitutional review
The appellants’ sharpest attack was conceptual: the First Hall had, in their view, confused “supremacy” with “perfection” by assuming that because the Constitution is supreme, it cannot contain internal tensions.
In political theory, that criticism has force: constitutional texts are historical compromises, they are amended, and they can embed competing values. Yet the Court’s response belongs to a different register. It treats the judicial power of constitutional invalidation as a conferred power, the exercise of which must stay strictly within its legal parameters. That framing is already visible in the passage reproduced and adopted in the appeal decision through the First Hall’s reasoning on Article 6. The First Hall had emphasised that Article 6 speaks only of “any other law” being inconsistent with the Constitution, and therefore becoming ineffective to the extent of inconsistency.
The First Hall’s key point can be captured in its own words:
“Skont l-Artikolu 6 fuq ċitat, trid tkun ‘xi liġi oħra’ li mhiex konsistenti mal-Kostituzzjoni sabiex tkun ‘bla effett’.”
English translation: According to the cited Article 6, it must be “some other law” that is inconsistent with the Constitution for it to be “without effect”.
The Constitutional Court then carries that thought forward in its own “Konsiderazzjonijiet”, stressing that constitutional “inconsistency” (in the operative sense that triggers judicial nullification) is a category that applies only to non-constitutional norms. Its reasoning is explicit:
“Għalhekk huwa ċar li meta l-Kostituzzjoni titkellem dwar inkonsistenza mal-Kostituzzjoni, din l-inkonsistenza tista’ tinstab biss f’xi liġi oħra, u ċjoè liġi li mhijiex il-Kostituzzjoni.”
English translation: Therefore it is clear that when the Constitution speaks of inconsistency with the Constitution, that inconsistency can be found only in some other law, namely a law that is not the Constitution.
Seen charitably, this is not a metaphysical claim that the Constitution is flawless. It is a claim about the judicial remedy: the Court reads the constitutional review mechanism as one designed to police the Constitution’s superiority over ordinary law, not to arbitrate internal constitutional tensions by striking down parts of the constitutional text itself. That may disappoint those seeking a substantive resolution of the democratic deficit alleged. But it is a coherent (and orthodox) way of preserving the distinction between constitutional adjudication and constitutional redesign.
- “No internal hierarchy” is a method choice: equal constitutional norms, harmonisation where possible, not invalidation
A second strand of the Court’s logic is the insistence that constitutional provisions are “all equal” in rank and cannot be treated as if one “outvotes” another. The Court puts it in strong terms:
“Huwa ormai stabbilit illi d-dispożizzjonijiet tal-Kostituzzjoni jitqiesu li huma kollha ugwali, b’dan li ma jistax ikollok xi dispożizzjoni tal-Kostituzzjoni li tkun aqwa minn oħra.”
English translation: It is by now established that the provisions of the Constitution are all regarded as equal, such that there cannot be a constitutional provision that is stronger than another.
This proposition performs an important doctrinal function. If all constitutional norms are equal, then “conflict” is not resolved by invalidating one norm using another, it is resolved—if at all—by interpretation, harmonisation, or political amendment. In other words, the Court selects a model of constitutional unity: the Constitution is to be read as a coherent instrument unless and until the constitutional amending authority changes it. It is exactly here that the appellants’ moral argument and the Court’s legal method pass each other. The appellants want the Court to construct an enforceable hierarchy (rights over electoral engineering, for example). The Court answers that the legal architecture does not furnish it with that hierarchical tool.
This is also where the reasoning can be described as “not irrational”: it protects legal certainty. If courts could declare constitutional provisions “void” because they conflict with other constitutional provisions, the judiciary would, in effect, become a continuing constituent power—constantly recalibrating constitutional bargains through adjudication. The Court refuses that role. It may be criticised, but it is neither incoherent nor arbitrary, it is an institutional choice grounded in textual cues and in a separation-of-powers instinct.
- Article 66 and the constitutional amendment monopoly: the Court frames reform as political, not judicial
The Court reinforces this institutional stance by linking it to the constitutional amendment procedure. It recalls (through adopted jurisprudence) that constitutional change is the domain of Parliament acting under Article 66.
The excerpt quoted from Arnold Cassola captures the logic: Article 52A is part of the Constitution, it was introduced through the prescribed process, and therefore it is not judicially impeachable as conflicting with other constitutional provisions. The quoted reasoning includes:
“…peress li skont Artikolu 66 tal-Kostituzzjoni, huwa biss il-Parlament li jista’ jibdel il-Kostituzzjoni.”
English translation: …because according to Article 66 of the Constitution, it is only Parliament that can change the Constitution.
Even if one remains sympathetic to the appellants, this move is intelligible. The Court is saying, in effect: if the complaint is that the electoral constitution entrenches a two-party settlement and marginalises third forces, that is a critique of the constitutional design. Design defects—assuming they are defects—belong to the amending forum, unless the Constitution itself authorises the judiciary to prune its own text. The Court finds no such authorisation.
- The Convention argument fails not on “Europe”, but on domestic incorporation: Chapter 319’s built-in exclusion of the Constitution
The appellants’ second aggravation sought to reintroduce rights-review via the European Convention, arguing that the Convention should have constitutional status or, at least, should be usable to test constitutional provisions.
The Court’s reply is starkly domestic: whatever the Convention’s international standing, its effect in Maltese law is mediated by Chapter 319, and Chapter 319 defines “ordinary law” in a way that excludes the Constitution.
The Court quotes the operative provision:
“Fejn ikun hemm xi liġi ordinarja li tkun inkonsistenti mad-Drittijiet tal-Bniedem u Libertajiet Fundamentali, l-imsemmija Drittijiet u Libertajiet Fundamentali għandhom jipprevalu, u dik il-liġi ordinarja għandha, safejn tkun inkonsistenti, tkun bla effett.”
English translation: Where there is any ordinary law that is inconsistent with Human Rights and Fundamental Freedoms, those Human Rights and Fundamental Freedoms shall prevail, and that ordinary law shall, to the extent of the inconsistency, be without effect.
Then it anchors the exclusion through the definition:
“’liġi ordinarja’ tfisser kull dokument li għandu s-saħħa ta’ liġi ukull regola ta’ liġi mhux miktuba, minbarra l-Kostituzzjoni ta’ Malta,”
English translation: “ordinary law” means every instrument having the force of law and every rule of unwritten law, excluding the Constitution of Malta.
From this, the Court draws a clean conclusion: the domestic statute that makes Convention rights actionable simultaneously blocks their use against the Constitution.
Again, the point is not that the appellants’ grievance lacks normative appeal, it is that the legal path chosen cannot reach the destination because the legislature has fenced the route. A critic may argue that this produces an accountability gap, but the Court’s step is doctrinally consistent, and it rests on explicit statutory text.
- Why the outcome can be sympathetic yet “not irrational”: the Court refuses to convert a representational critique into a justiciable invalidity claim
A sympathetic reading of the appellants’ complaint would stress lived democratic experience: voters may support third parties for years without representation, while corrective adjustments and gender balancing operate only within the already-represented party set. The Court does not deny that electoral systems generate winners and losers, instead, it insists on a basic distinction between (a) the fairness of the electoral settlement and (b) the justiciability of that settlement under existing Maltese constitutional remedies.
Indeed, the State’s counter-argument, recorded in the judgment, is that the PRSTV system is candidate-centred and district-structured, with district quotas rather than a national party quota, and that the corrective mechanisms are triggered only after the PRSTV count concludes, serving a specific constitutional purpose (proportionality among parties that actually enter Parliament, and gender balance).
Whether one finds that settlement normatively attractive is a different question from whether a court can re-engineer it by declaring parts of the Constitution “null and without effect”. The Court’s insistence is that the latter would require an authority the Constitution has not granted.
In that sense, the Court’s logic is “not irrational” because it is shaped by three stabilising commitments: textual constraint (Article 6 and Chapter 319), institutional role (courts interpret and apply, Parliament amends), and systemic predictability (constitutional provisions do not self-annul through litigation). Those commitments may be contested on political morality grounds, but within a positivist account of Maltese constitutional adjudication, they hang together.
This decision can be read as an exercise in judicial minimalism of a particular kind: not the minimalism of avoiding controversy, but the minimalism of refusing to fabricate jurisdiction where the constitutional text and the incorporation statute do not supply it. The Court does not vindicate the representational anxieties of ADPD – rather, it redirects them—implicitly—towards constitutional reform. For an academic reader, the case is therefore valuable less as a meditation on the merits of proportional representation and more as a window into the Maltese constitutional order’s self-understanding: the Constitution is supreme, internally co-equal, and politically amendable, but not judicially divisible. That is a contestable philosophy. Yet, as the Court frames it, it is a philosophy rooted in text, method, and institutional boundaries—and for that reason it cannot fairly be dismissed as irrational.
