The right to, what?
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The right to, what?

The judgment of the Court of Appeal (Inferior Jurisdiction) in the case of Robert Galea v Major John sive Vanni Ganado et (41/2017/1) will surely send shockwaves throughout the legal community for the way it highlights the constitutional absurdity of a court’s legal impotence to decide against a law whose constitutionality is – by way of generous euphemism – deemed suspect, because of a legislative intervention of its brother in the trias politica – Parliament. It is a manifestation of a court eloquently protesting against its inability in its ordinary capacity to shoot down a law which was specifically promulgated to nullify judgments delivered by constitutional courts, and instead, be forced to apply it.

This case revolved around the now infamous article 12 of Chapter 158 of the Laws of Malta (Housing (Decontrol) Ordinance), enacted back in 1979. This was a law which pretty much sought to transform hundreds of private individuals into social housing providers, compelling them to keep renting their properties at a low rent, even against their own will. It did so by choosing a class of contracts of temporary emphyteusis, and dictating that on the expiration of the period agreed to, the owner could not take back his property. Instead, the emphyteusis automatically converted into lease in perpetuity, under a regime of very limited increases in the rent the owner could receive. Time and time again, our courts and the European Court of Human Rights have scorned this article at law and declared it to be in flagrant breach of the fundamental right to property, found both in the Constitution of Malta and the European Convention of Human Rights.

In a peculiar role reversal, Parliament seems to have muscled the court of constitutional jurisdiction out of the function given to it by the Constitution of Malta (think: the highest law of the State) and enacted a law that sought to effectively nullify a decision by that same court

Last year, Malta tried to alleviate its constant and numerous shootdowns of this law by adding a new mechanism by means of Act XXVII of 2018: article 12B. On the owner’s request, the occupant is subjected to a means test, and those who pass this test shall have the right to continue occupying the property, for a rent of not more than the equivalent of two per cent of the market value of the property, part of which will be paid by the State. This law applies to new cases, as well as those who have already been subject to a decision of court of constitutional jurisdiction.

The facts of the case were as follows: Plaintiff owned a property which was subject to the protected lease under article 12 of Chapter 158 of the Laws of Malta. He had sought to challenge this article at law before the Civil Court, First Hall (Constitutional Jurisdiction). This was at a time when Act XXVII of 2018 had not yet been introduced. In its judgment, the court in its constitutional capacity once again declared article 12 of Chapter 158 of the Laws of Malta to be in breach of the plaintiff’s right to property, and considered that defendants could no longer rely on this article at law to protect their occupation of the property.

The plaintiff then proceeded to request the Rent Regulation Board to declare that without the protection of article 12, defendants no longer had the right to retain the property, and that therefore, they shall vacate the property. The Rent Regulation Board acceded to the request, but the defendants appealed, stating that in the meantime, Act XXVII of 2018 had come into force and that the Rent Regulation Board ought to have applied it.

In its judgment, the Court of Appeal made a thorough analysis of the situation and the newly enacted law. It noticed how in effect, the newly introduced Article 12B (11) states that even a landlord who had a favourable judgment of the court of constitutional jurisdiction (basically, paving the way for his tenant’s eviction) could not proceed to request the eviction of the occupier without first availing himself of the procedure under the new law.

In its judgment, the Court of Appeal cautiously noted that one may have reservations on this new law (Act XXVII of 2018), more so when one would have obtained a judgment by a court of constitutional jurisdiction, and now having to face yet another hurdle against taking back one’s property. It added that this new law adds yet another element of frustration for owners.

It sadly noted that as a court of appeal in its ordinary jurisdiction, it lacked competence to actually decide about the constitutionality of this new law, and further noted that it could not order a constitutional reference on the matter at its own accord. It reluctantly varied the judgment of first instance, but opted to send back the acts of the case to the Rent Regulation Board to give chance to the plaintiff to decide on his next step.

The Court was correct to cautiously note the oddness of this new law. In a peculiar role reversal, Parliament seems to have muscled the court of constitutional jurisdiction out of the function given to it by the Constitution of Malta (think: the highest law of the State) and enacted a law that sought to effectively nullify a decision by that same court. Ironically, a judgment declaring a law unconstitutional is nullified by another subsequent law which is arguably unconstitutional in its own right!

Yes, the intention of this law must have been noble – to protect vulnerable tenants facing imminent eviction. But as Samuel Johnson famously said: “The road to hell is paved with good intentions”, and hell is what these owners of properties might describe their never-ending ordeals in order to take back their property. It is perhaps a situation where a painkiller is being mistaken for the cure.

The judgment of Robert Galea v Major John sive Vanni Ganado et (41/2017/1) is perhaps one of the first to highlight the frustration to be created by Act XXVII of 2018. But it will not be the last. This new law is certain to be the subject of many talked-about judgments for years to come, indeed, as this law will inevitably – sooner or later – go back before the scrutiny of the Constitutional Court.

Carlos Bugeja is senior associate at Azzopardi, Borg & Abela Advocates.

www.abalegal.eu

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