Legal arguments are not written only because something is imminent. They are often written to correct misthinking and to set the record straight. They may be advanced to alert, to provoke counter-argument, or precisely because they may be partially—or even intrinsically—mistaken. That is how serious scholarship evolves. Legal writing in the public sphere is therefore not necessarily reactive to events in the offing; it is frequently reflective, sometimes anticipatory, and occasionally corrective.
For that reason, it is worth stating explicitly that my contribution entitled Honesty in Constitutional Governance, published earlier today in Times of Malta, is not animated by any belief that a specific constitutional development is about to occur. But that should not inhibit writing. If academic and legal commentary were permissible only when change was imminent, scholarship would be reduced to a form of technical servicing—mere machine operation rather than critical inquiry.
And, in any event, reality has a habit of arriving unannounced.
This is the article verbatim:
Honesty in constitutional governance
Constitutional supremacy is often spoken of as though it were timeless. We are told the constitution stands above politics, binds parliament absolutely and certain commitments are beyond revision. This belief is comforting, suggesting our legal order’s fundamental values are shielded from shifting political winds. But it is mistaken.
The Maltese constitution does declare itself supreme law. Ordinary legislation that conflicts with it is void. Courts are empowered – indeed ‘required’ – to strike down laws that breach constitutional provisions. Yet what is often overlooked is that the constitution also tells us how it may be changed. That second fact fundamentally qualifies the first.
Unlike some constitutional systems, Malta does not recognise any provision as unamendable. There is no ‘eternity clause’ protecting certain principles from revision. Even Article 6, the supremacy clause itself, may be amended – albeit only with the support of a two-thirds majority in parliament. That requirement is demanding but not prohibitive. Supremacy in Malta is entrenched, not eternal.
This is not a drafting accident. It is a constitutional choice.
Entrenchment raises the political cost of constitutional change. It forces broader consensus, prolonged debate and public scrutiny. What it does not do is make change legally impossible. And that distinction matters. Too often, entrenchment is spoken of as a moral shield rather than a procedural safeguard. It is neither. It is a device that slows constitutional change and exposes it to political accountability – not one that forbids it.
Once this is recognised, a further, more uncomfortable truth follows. If the constitution allows parliament, acting under heightened procedures, to amend even its most fundamental provisions, then responsibility for morally consequential constitutional change cannot be displaced onto the courts. It lies with parliament – and ultimately with the electorate that sustains it.
This has implications for how we think about constitutional adjudication. Courts play a vital role in enforcing the constitution against ordinary laws and executive action. But they are not authorised to invent additional limits on constitutional amendment simply because they find certain outcomes ‘morally objectionable’. Once the amendment procedure is followed, courts face a constitutional fact, not an interpretive opportunity.
Judicial moralism – the idea that courts may block constitutional change by appeal to unwritten moral principles – may be attractive, particularly when rights appear under threat. But in a system like Malta’s, it risks doing more harm than good. It relocates responsibility from politically accountable institutions to judges insulated from electoral consequence. It allows politicians to blame courts for outcomes they themselves have constitutionally authorised. And it encourages citizens to treat constitutional degradation as legally impossible rather than politically chosen.
This is not an argument against constitutional values. Nor is it a defence of rights-regressive reform. It is an argument about honesty in constitutional governance. A constitution that permits amendment, even under demanding conditions, promises a process forcing political actors to own the consequences of their decisions.
That process does not operate in isolation. Malta is part of a wider European legal and political order. Constitutional amendments that undermine judicial independence or fundamental rights may be domestically valid yet attract serious external consequences: reputational damage, political pressure and even financial conditionality at EU level. These mechanisms do not invalidate national constitutions but ensure constitutional choices are not cost-free.
Those consequences do not erase responsibility; they reinforce it.
But the most uncomfortable implication of all is this: if a political community tolerates morally questionable constitutional change, constitutional law cannot save it from itself. Courts may delay, expose and discipline. They cannot redeem. ‘Constitutional failure’, where it occurs, is not a technical glitch in the legal system. It is a political failure – one that belongs to those who govern and to those who permit them to do so.
Therefore, the myth of absolute constitutional supremacy is appealing precisely because it shields us from this reality. It suggests someone else – judges, lawyers, the constitution – will intervene before things go too far. But Malta’s constitution makes no such promise. It entrusts its own fate to democratic procedure, not to judicial virtue.
That choice requires us to stop pretending that constitutional law can substitute for constitutional responsibility.
