Owen Bonnici’s ‘band club protection’ law re-confirmed to be in breach of human rights

On Thursday morning, the Constitutional Court conclusively determined that the 2018 band club protection laws were unconstitutional and in flagrant breach of owners’ human rights.

The Constitutional Court heavily criticised these laws noting that not only did they appear designed to suit particular persons’ needs, but they also had the effect of rewarding breaches by band clubs of their own contractual obligations, effectively granting them impunity.

Piloted by then Justice Minister Owen Bonnici, the 2018 band club protection laws (Act XXVII of 2018) sought to retroactively block the courts from ever ordering the eviction of a band club, even if a case was already underway before the laws were passed, and to block the enforcement of final judgements that had already ordered their eviction.

This latest judgement comes in the now 14 year-long (and counting) case involving the Stella Maris Band Club in Sliema where the owners asked, in 2008, for the “immediate” eviction of the Band Club for carrying out unauthorised structural works.

The premises of the Stella Maris Band Club are an imposing townhouse in the recently refurbished Annunciation Square, Sliema, that the Band Club rents for just €174 per year under a protected lease dating back to 1959.

The Appeal Court had already, in 2018, decided that the Band Club had breached its lease contract by, among other things, abusively building an unauthorised receded storey and irreparably damaging the spiral staircase (garigor) on the scheduled townhouse. That same year, however, just as the court was about to proceed to order the eviction of the Band Club, the band club protection laws were passed – effectively blocking the court from granting eviction.

The owners challenged the constitutionality of these laws arguing, among other things, that a retroactive law that not only perpetuates a flagrant breach of the human right to property but that effectively rewards illegal and illegitimate behaviour is unconstitutional.

The civil court in its constitutional jurisdiction presided over by Chief Justice Mark Chetcuti upheld the owners’ claims. Yet the State Advocate and the Band Club appealed. The constitutional court threw out both appeals, noting that while band clubs do fulfil a role in Maltese society there is no legitimate public interest in introducing a law to reward a band club for its own illegitimate behaviour to the detriment of the owners.

This latest judgement by the constitutional court means that the Stella Maris case will now go back to the court of appeal presided over by Judge Mintoff (who took over the case from Judge Anthony Ellul) to now award eviction, with the next hearing set for 16 February.

Although widely derided as a vote-grabbing gimmick, Owen Bonnici had, at the time, boasted that the band club protection laws struck “a balance between the rights of the tenants and the property owners” and that they were “necessary to protect the social and cultural functions of band clubs”.

The courts have repeatedly put paid to Bonnici’s claims of a “balance being struck” noting that these laws were anything but balanced, serving to reward illegality. Neither did the courts agree to claims about the “social and cultural functions” of band clubs justifying the breach of others’ human rights.

In 2021, with a case pending for its eviction, the Stella Maris Band Club which boasts Social Justice Minister Michael Falzon as its president and Junior Minister Stefan Zrinzo Azzopardi as its lawyer, sub-leased most of its premises to an Asian fusion restaurant,  called Project 1914.

This is the second recent case where the band club protection laws were shot down by the courts – the other case being that of the De Paule Band Club, where the courts had already awarded eviction but the new laws were passed in an effort to try and stop the enforcement of that judgement.