Court of Appeal highlights constitutional anomaly

In a noteworthy decision, the Court of Appeal has highlighted a constitutional anomaly through which the courts are legally unable to shoot down a law specifically promulgated to nullify judgments by the constitutional courts and are instead forced to apply them.

The judgment in the case of Robert Galea v Major John sive Vanni Ganado et revolved around an article in the 1979 Housing (Decontrol) Ordinance. That infamous law effectively sought to transform hundreds of private individuals into social housing providers by compelling them to keep renting out their properties at a low rent, at times against their will.

This law was repeatedly rejected at European level as a breach of the right to property  found both in the Constitution and the Eueropean Convention of Human Rights.

Last year Malta tried to address the problem by adding a new mechanism by means of Act XXVII of 2018. 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 2% 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: Galea owned a property which was subject to the protected lease under article 12 of the Housing (Decontrol) Ordinance. He had sought to challenge the legality of this article before the First Hall of the Civil Court, in its Constitutional Jurisdiction. This was at a time when Act XXVII of 2018 had not yet been introduced. In its judgment, that court once again declared article 12 of that law to be in breach of the right to property and stated that the defendants could no longer use this article to justify their continued occupation of the property.

The plaintiff then proceeded to request the Rent Regulation Board to declare that without the protection of article 12, the defendants should now vacate the property. The Rent Regulation Board upheld 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 should have applied the new law.

In its judgment on the case, the Court of Appeal presided by Mr. Justice Anthony Ellul, noted how effectively, the newly introduced mechanism stated that even a landlord who had a favourable judgment of the court of constitutional jurisdiction, making his tenant's eviction possible, could not proceed to request the eviction of the occupier without first availing himself of the procedure under the new law.

The Court of Appeal expressed its reservations on this new law, which it said added yet another layer of frustration for property owners, but noted that as a court of appeal in its ordinary jurisdiction, it lacked competence to actually decide about the constitutionality of the new law and could not order a constitutional reference on the matter of its own accord.

The judge therefore varied the judgment of the Rent Regulation Board by revoking the parts which ordered the eviction, but also 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.

 

from The Malta Independent https://ift.tt/2EGqWPx
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