Critical analysis of “Honesty in constitutional governance” by Robert Musumeci

In his Times article (TOM, 19.01.26) Robert Musumeci advances a central claim: that Malta’s Constitution “entrusts its own fate to democratic procedure, not to judicial virtue”, because every constitutional provision is amendable if the correct parliamentary procedure is followed.

In this brief I intend to accept the descriptive premise that Malta lacks an express eternity clause while challenging the normative and legal conclusions drawn from it. I submit that Musumeci’s assertion risks collapsing the distinction between democratic legitimacy and legal validity, and it understates how constitutional supremacy, the rule of law, and judicial independence operate as substantive constraints within a constitutional democracy even where formal amendment is possible.

Constitutional supremacy is not a slogan, but a legal architecture

Constitutional supremacy means that the Constitution is the highest norm within the domestic legal order. It is not merely a statement that courts may strike down ordinary laws. It is the structural principle that public power exists only within constitutional authorisation, and that all institutions, including Parliament, are constituted and limited by the Constitution.

Musumeci is correct to say that Article 6 renders inconsistent ordinary law void, and that courts are required to disapply unconstitutional legislation. But he then treats the existence of an amendment procedure as a “qualification” that almost empties supremacy of its protective force.

This assertion is conceptually flawed. Supremacy and the possibility of amendment are not opposites. They are complementary parts of constitutional design. Supremacy answers the question “what prevails today”. The possibility of amendment answers the question “how may tomorrow’s higher law be made”. The second does not cancel the first; it presupposes it. Indeed, the amendment procedure itself is an expression of supremacy, because it prevents constitutional change through ordinary politics and requires a legally prescribed route.

In constitutional terms, supremacy is not “eternal” in the sense of metaphysical permanence. But it remains juridically supreme at any given time. A constitution that can be amended is still supreme; it is simply not immutable.

Musumeci’s central error: democratic outcomes are not automatically “legal” in the constitutional sense

A democratic outcome is a political fact. Legality is a juridical status. The two can overlap, but they are not the same. Musumeci repeatedly implies that once an amendment procedure is followed, courts face “a constitutional fact, not an interpretative opportunity”, and that judges cannot “invent additional limits” based on “unwritten moral principles”.

This framing is misleading in two ways.

First, it assumes that constitutional adjudication becomes mechanical the moment the word “amendment” appears. That is not how constitutional law works. Courts must still determine whether the purported amendment is in truth a valid constitutional amendment, whether the correct procedure was followed, whether the amendment is coherent with the constitutional order, and whether it is a disguised attempt to do indirectly what the constitution does not permit directly. These are not “moral” questions; they are classic rule of law questions about competence, form, and constitutional identity.

Second, it insinuates that judicial review of constitutional change is necessarily illegitimate “judicial moralism”. That is an overstatement. In many constitutional systems, courts have recognised limits on amendment not because judges prefer a moral outcome, but because an amendment that destroys the constitution’s essential character is no longer an amendment. It is a constitutional replacement or rupture, requiring a different democratic mandate.

Even in the absence of an explicit eternity clause, a constitution can contain implied structural principles, such as separation of powers, judicial independence, legality, and effective protection of fundamental rights. These principles are not optional ornaments. They are constitutive of what makes a legal order a constitutional democracy rather than a majoritarian state.

Entrenchment is not merely “political cost”: it is a legal safeguard for constitutional stability

Musumeci describes entrenchment as a mechanism that raises political cost but does not create legal impossibility. That is true as far as it goes, but incomplete.

Entrenchment serves at least three legal functions that Musumeci underplays.

Firstly, it protects minorities against transient majorities by requiring cross-party agreement for foundational changes. Secondly, it protects institutional independence by making it harder for a government to rewrite the rules of accountability during a crisis or scandal. Finally, it protects constitutional continuity by reducing the risk of “constitutional capture”, meaning the use of legal forms to consolidate power and immunise the executive from scrutiny.

If entrenchment is reduced to “political accountability”, the constitution becomes little more than an instruction manual for how a parliamentary majority may legally entrench itself. That is precisely the danger constitutional supremacy is meant to prevent.

“Responsibility lies with Parliament and the electorate”: politically true, legally insufficient

Robert Musumeci argues that responsibility for “morally consequential constitutional change” cannot be displaced onto courts and lies with Parliament and the electorate. As a matter of political ethics, this is unobjectionable. But as a constitutional proposition, it is dangerously incomplete.

Courts are not only moral commentators. They are guardians of legality. Their constitutional function is not to “redeem” the political community, but to ensure that power is exercised within legal bounds, including bounds that protect the democratic process itself.

A citizen can vote out a government only if elections remain meaningfully free and fair. An electorate can judge wrongdoing only if there is access to information, investigative capacity, and independent adjudication. Parliament can be held accountable only if constitutional rights such as expression, association, and due process remain enforceable.

Therefore, the idea that “constitutional law cannot save it from itself” is rhetorically powerful but legally misleading. Constitutional law does not guarantee political virtue, but it does secure the conditions under which political responsibility can be exercised. When those conditions are undermined, “leave it to the electorate” becomes circular, because the electorate’s capacity to correct abuse is what is being damaged.

Executive interference with judicial determination: the modern route to constitutional degradation

Finally, I must address what seems to be Musumeci’s implicit comfort with the proposition that courts should not resist “politically chosen” constitutional outcomes. The core problem in contemporary constitutional breakdown is rarely an open coup. It is legalistic executive interference that preserves democratic rituals while hollowing out judicial control.

One of the most common mechanisms is court capture through appointments.

In constitutional democracies, judicial appointment is not inherently illegitimate. It becomes unconstitutional in substance when appointment power is used to predetermine outcomes, neutralise accountability, or intimidate judges into deference. The citizen may still see courts operating, judgments being issued, and constitutional language being cited, yet the adjudicative function becomes subordinated to political loyalty.

This is not hypothetical. The pattern is recognisable across jurisdictions. A government expands the size of the constitutional court or changes quorum rules so that newly appointed judges dominate panels. A government lowers retirement ages or changes tenure rules to remove existing judges and create vacancies. A government redesigns the judicial appointments process to concentrate control in the executive, replacing professional evaluation with political selection.

A government disciplines judges through administrative sanctions, budgetary pressure, or politically controlled “judicial councils”. Each step can be dressed as lawful reform. Each step can be passed by a majority. Yet the effect is executive interference with judicial determination, because the judiciary becomes unable to act as an effective constraint.

If courts then refuse to accept such changes as constitutionally destructive, Musumeci would label this “judicial moralism”. But the better legal description is that courts are defending the separation of powers and the minimum content of judicial independence without which constitutional supremacy becomes performative.

Constitutional supremacy includes supremacy over the executive, not only over ordinary legislation

Musumeci correctly emphasises that courts enforce the constitution against ordinary laws and executive action. But he understates that supremacy is most tested precisely when the executive seeks to evade adjudication.

Executive interference can take softer forms than court capture. Refusing to implement judgments or delaying implementation until the political moment passes. Issuing administrative measures designed to frustrate litigation, such as denying standing, withholding documents, or manipulating procedural timelines. Using state resources to litigate citizens into exhaustion, turning access to justice into a privilege rather than a right.

Publicly attacking judges and portraying adverse judgments as “anti-democratic”, thereby delegitimising judicial review as such. These are not questions of morality. They are questions of legality and constitutional structure. The constitution’s supremacy is hollow if the executive can systematically prevent courts from delivering effective remedies.

The EU dimension: correctly noted, but understated in legal consequence

Musumeci acknowledges that domestically valid amendments may still attract “external consequences” including political pressure and financial conditionality at EU level. This is accurate, but the framing again risks minimising legality.

For an EU Member State, rule of law commitments are not only reputational. They are embedded in binding obligations. When constitutional amendments undermine judicial independence, the issue is not merely “cost”. It is potential incompatibility with the Member State’s duties within the European legal order.

From the citizen’s perspective, this matters because EU membership creates an additional layer of constitutional constraint: national constitutional change cannot be treated as purely internal when it affects effective judicial protection, the independence of courts, and the enforcement of EU rights. Even where a domestic amendment is procedurally correct, it can generate legal consequences in EU law that materially affect the state’s position and citizens’ rights.

Conclusion: Musumeci’s theory is rhetorically honest, but constitutionally incomplete

Musumeci’s call for “honesty in constitutional governance” usefully reminds citizens that constitutional decline can be politically chosen. That is an important civic warning.

However, he commits a fundamental constitutional error by implying that democratic procedure is a sufficient condition for constitutional legality. It is not. A constitutional democracy is not defined only by who wins elections, but by the legal constraints that make elections meaningful, government accountable, and rights enforceable.

Constitutional supremacy is not a myth that evaporates because amendment exists. It is the legal hierarchy that binds all power, including power exercised through majorities. Entrenchment is not merely a political speed bump; it is a safeguard against capture. Judicial review of constitutional change is not necessarily “moralism”; it can be a rule of law necessity when the amendment is used as a vehicle to dismantle the constitution’s core structure, especially through executive interference with judicial determination via court appointments and institutional redesign.

Musumeci’s text should be read with one crucial correction in mind. Democracy matters. But legality is not whatever a majority can be made to vote for.

Legality is what the constitution, interpreted in good faith and protected by independent courts, permits the state to do without destroying the conditions of constitutional government itself.