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20 The Legislative Development of Human Rights and Fundamental Freedoms in Malta: A Chronological Appraisal
Kevin Aquilina Associate Professor and Head, Department of Public Law, Faculty of Laws, University of Malta
To Prqftssor David J Attard, legal luminary, visionary and ardent disseminator 
226 Kevin Aquilina
The Declatation of Rights of the Inhabitants of the Islands of Malta andGozo
The Declaration of Rights of the Inhabitants of the Islands of Malta and Gozo can be considered as the modern harbinger of Maltese human rights and fundamental freedoms. 7 It referred to the doctrine of 'the rule of law'8 when it stated in article 9 of the Declaration that 'Power resides only in the law, and restraint, or punishment, can only be exercised in obedience to law'.
It is indeed upon this legal tenet that the whole corpus juris of human rights and fundamental freedoms rests: the restraints and limitations to these rights and freedoms have to be prescribed by law. This is indeed in conformity with human rights and fundamental freedoms as contained in the Constitution of Malta and in the European Convention of Human Rights and Fundamental Freedoms where the right or freedom in question is first enunciated and its restrictions and limitations are then set out.
The Declaration consists of nine articles in all. It has also a Preamble where it asserts that the Declaration was drawn up by the 'free suffrage of the people' who were 'Members of the Congress of the Islands of Malta and Gozo and their dependencies' and who came together and were 'elected to represent' their compatriots, with the Declaration being aimed at 'ascertaining our native rights and privileges (enjoyed from time immemorial)' in order to 'secure to us and our descendants in perpetuity, the blessings of freedom and the rights of just law'. Justice - upon which all human rights and fundamental freedoms are based - was emphasised in the Declaration's Preamble: there is no doubt that these rights and freedoms are the product of 'just law'. Moreover, the Declaration was adopted by the elected representatives of the Maltese people thereby emphasising the democratic nature of the Congress which approved the Declaration in 1802.9
In article 2 of the Declaration it is stated that should His Majesty the King of the United Kingdom of Great Britain and Ireland cede the Maltese Islands to any other power, it is the inhabitants of these Islands that have 'the right of electing another sovereign, or of governing these Islands'. 1° Furthermore, article 4 of the Declaration empowers the Maltese, inter alia, 'to complain of violation of rights and privileges' and in terms of article 6 of the Declaration His Majesty the King 'is the protector of our holy religion and is bound to uphold and protect it'. Article 8 of the Declaration emcompasses freedom of conscience when it provides that 'freemen have a right to choose their own religion. Toleration of other religions is therefore established as a right. .. '. Finally, article 9 of the Declaration - apart from referring to the rule of law as above stated - asserts that 'no man whatsoever has any personal authority over the lives, property or liberty of another'. This Declaration was drawn up and approved during the British period.
The Legislative Development t.if Human Rights and Fundamental Freedoms in Malta 227
The British Period: 1800-1964
During the British period various laws were enacted which encompassed into Maltese law human rights and fundamental freedoms provisions such as Ordinance No. IV of 1839 11 which abolished press censorship- and the Criminal Codewhich was promulgated by an Order-in-Council of the 30 January 1854 (coming into force on 10 June 1854) and which, even as subsequently amended, certainly, from a constitutional criminal law viewpoint, was a progressive law at the time for it embodied well before the 1948 Universal Declaration of Human Rights and other international and regional hard law instruments that followed it the main principles of constitutional criminal law upon which human rights and fundamental freedoms are based. Not even the colonial ruler had yet adopted these human rights principles in British home grown legislation. Such is the case, for instance, with the principles of ne bis in idem; 12 the principle against selfincrimination; 13 and the presumption of innocence where the burden of proof rests on the prosecution, 14 just to cite three concrete instances. The same can be said in so far as constitutional civil law is concerned: the right to private property, 15
depriviation of property without compensation16 and the right to respect of one's privacy17 were, to a certain extent, already safeguarded in our Civil Code prior to the human rights and fundamental freedoms instruments now enshrined in the Constitution of Malta and in the European Convention Act. Other human rights provisions found also similar corollaries in other Maltese laws: for instance, freedom of expression, following the abolition of press censorship in 1839 is found in all laws enacted since then- Press Ordinances of 1889 and 1933 and the 1974 Press Act - freedom of assembly is found in the Public Meetings Ordinance18 and the right to education contemplated in article 2 of Protocol 1 of the European Convention of Human Rights was echoed in the Compulsory Attendance Act, 1924, 19 which made attendance at schools compulsory for pupils of elementary schools.
Although we do associate the beginning of our human rights and fundamental freedoms regime more closely with the 1961 Maltese Constitution, it must nevertheless be pointed out that these rights and freedoms have been with us well in advance of that date. Indeed, we have had judgments prior to the Blood Constitution which in no emphatic way applied, as it were, human rights in Malta prior to their actual proclamation: such is the case of Sir Arturo Mercieca's judgment in Polizia v. Avvocato Enrico Mizzi of 20 January 1934 dealing with the Seditious Propaganda (Prohibition) Ordinance where the said judge applied the liberal canon of interpretation in dubio pro reo acquitting the accused from all charges levelled against him. 20
Select HUitlan Rights Provisions in the 1959 Maltese Constitution
The Malta (Constitution) Order in Council, 1959 is, during the British period- if one were to exclude the instances of self-government in Malta - the first Maltese Constitution to introduce human rights provisions. Indeed, this Constitution had
228 Kevin Aquilina
two provisions sections 4921 and 51 22 - which respectively dealt with religious toleration and compulsory acquisition of property. These provisions were reproduced both in the 1961 and 1964 Maltese Constitutions.
The Blood Constitution: Eshrining Human Rights and Fundatnental Freedoms in a Colonial Constitutional Instrument
The Rt. Hon lain Macleod M.P., then Secretary of State for the Colonies, appointed on 22 August 1960, a Malta Constitutional Commission chaired by Sir Hilary Blood G.B.E., K.C.M.G., K. StJ., Hon. LL.D. (hence its designation as 'the Blood Commission') and composed of Sir Alfred Roberts C.B.E., Mr. Edward St. John and Mr. Fred Hayday. The Blood Commission reported back on 5 December 1960 and, amongst its various recommendations, it proposed in paragraph l 04 thereof the following in so far as human rights are concerned:
Having regard to the general considerations set out in Appendix H 23 we make the following recommendations: -
(l) The new constitution should include an appropriately worded preamble referring to the United Nations Declaration if Human Rights.
(2) The constitution should contain provisions modelled on Chapter III of the Constitution if the Federation if N7geria, adapted, of course, to the circumstances existing in Malta.
(3) As regards religious freedom and compulsory acquisition of property, the substance of Sections 49 and 51 of the Malta (Constitution) Order in Counci~ 1959, which made provision therefor, should be incorporated in the new constitutional provisions dealing with human rights.
(4) The provisions of Section 31 of the N7gnian Constitution, which confer upon the High Court a special jurisdiction to provide redress against infringement of human rights should be included in the new constitution, expanded perhaps so as to confer upon any person the right to sue for a writ of habeas corpliS in respect of the detention of himself or of any other person, a right which does not at present exist in Malta.
(5) Consideration might be given to the insertion of a provision authorizing the Advocate of the Poor, or some other appropriate officer, at the instance of any person, to bring before the Court any case of an alleged infringement of human rights declared by the constitution.
(6) In view of threats of trial by 'people's tribunals' (see Appendix Gf4
the provisions of Section 21 (2) of the Nigerian Constitution might be strengthened by substituting for the word 'court' a form of words confining the jurisdiction to try criminal offences to the existing courts of Malta. 25
The Blood Commission also proposed that the human rights provisions had to be entrenched. 26
An examination of the Malta (Constitution) Order in Council, 1961 27 indicates that Part II of that Constitution was entitled 'Protection of Fundamental Rights
The Legislative Development if Human Rights and Fundamental Freedoms in Malta 229
and Freedoms of the Individual'. It consisted in twelve provisions (sections 5 to 17) which gave effect to the following rights and freedoms:
a Preamble on fundamental rights and freedoms of the individual (section 5) protection of right to life (section 6) protection of right to personal liberty (section 7) protection from slavery and forced labour (section 8) protection from inhuman treatment (section 9) protection from depriviation of property without compensation (section 1 0) protection for privacy of home and other property (section 11) provisions to secure protection of law (section 12) freedom of conscience and religious toleration (section 13) freedom of expression (section 14) freedom of assembly and association (section 15) enforcement of protective provisions (section 16) interpretation of Part II and saving (section l 7).
In so far as the human rights provisions in the 1961 Blood Constitution are concerned, it is to be noted that the equivalent provisions of sections 49 and 51 of the Maltese Constitution of 1959 are now contained in sections 13 and 10 respectively. An examination of sections 1 0 and 13 of the 1961 Constitution indicates that they have been modelled upon the 1959 provisions. Indeed, the provisions on freedom of conscience are identical in both versions whilst the provisions on depriviation of property- though not identical in nature - are substantially the same even though there were certain provisions omitted in the 1961 version which were nevertheless contained in the 1959 Constitution but which were not carried forward in the Blood Constitution. Moreover, the 1961 Constitution only incorporated first generation rights, that is civil and political rights, in Part II thereo£
As the Blood Commission had recommended, the 1961 human rights and fundamental freedoms provisions were modelled on the now defunct Chapter III of the Constitution of the Federation of Nigeria of 1960.28 The human rights and fundamental freedoms provisions in the Nigerian Constitution follow to a large extent the declaration of rights contained in The European Convention for the Protection of Human Rights and Fundamental Freedoms.29 On the other hand, The Universal Declaration of Human Rights is concerned with a wider declaration of rights, some of which could be protected by law, whilst others -mainly the so-called 'economic, social and cultural rights' - could only be realized through detailed positive legislation or government action directed to that end. The European Convention and the 1960 Nigerian Constitution, on the other hand, are concerned only with rights of the former class, which are of such nature requiring protection through insertion of appropriate provisions in a constitution. Furthermore, the framers both of the European Convention and of the Nigerian Constitution were necessarily concerned to cut down the rights declared in general terms by the UN Universal Declaration, by expressing the necessary qualifications, which had rightly been ignored in the Declaration, but must, of course, be considered by the legal draftsperson. But the 1961 Constitution survived for only three years to be replaced by the independence Constitution of 1964.
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Malta's 1964 Independence Constitution
The independent State of Malta came into being on 21 September 1964. It entered upon its independence with a status similar to that of any self-governing Dominion in the British Commonwealth of Nations. The executive authority of the Government was vested in Her Majesty the Queen of Great Britain and Northern Ireland as Queen of Malta and was exercised on her behalf by a Governor-General appointed by Her Majesty. In the exercise of this authority, the Governor-General was advised by a Prime Minister and a Cabinet of Ministers.
The Constitution of this newly independent State is to be found in the Malta Independence Order 196430 made by the Queen of Great Britain and Northern Ireland in exercise of the power conferred upon Her by article 1(1) of the U.K. Malta Independence Act, 1964.31 The Constitution of Malta appears as a Schedule in the aforesaid Order. Moreover, the Malta Independence Act 1964 provided, inter alia, that on and after 21 September 1964, Her Majesty's Government should have no responsibility for the government of Malta or any part thereo(
In so far as human rights and fundamental freedoms are concerned, these are to be found in Chapters Two and Four. The independence Constitution contains both first and second generation rights. First generation rights - the civil and political -are found in Chapter Four of the Constitution whilst second generation rights - the economic, social and cultural - are found in Chapter Two of the Constitution. Chapter Two is entitled Declaration of Principles32 whilst Chapter Four is headed Fundamental Rights and Freedoms of the Individual, the difference being between the two that whilst first generation rights are justicible, second generation rights are not. On the other hand, civil and political rights are enforceable through section 46 of the Constitution.
Some economic, social and cultural rights - although not included in the 1961 Constitution - were subsequently introduced in the 1964 Constitution of Malta. 33
In fact, Chapter II thereof entitled 'Declaration of Principles' had fifteen provisions which gave effect to economic, social and cultural rights. All these provisions have been retained in our Constitution although section 14 was substituted by Act No. XIX of 1991 to make better provision for the equal rights of men and women. What is to be noted, nonetheless, with regard to the Declaration qf Principles of the Constitution of Malta is that 'The provisions of this Chapter [ i.e. the Declaration of Principles] shall not be enforceable in any court, but the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making laws'.34
Chapter IV of the Constitution of Malta is entitled 'Fundamental Rights and Freedoms of the Individual'. It contains a preamble35 and sixteen articles in all.36
It provides for the protection of civil and political rights of the individual. These provisions posed the problem that up till 30 June 1993 the major five enactments contained in the Laws of Malta, notwithstanding the fact that they date back to the 1850s, could not be deemed to run counter - according to an express provision of the Constitution - to the human rights and fundamental freedoms of the individual enshrined in the Constitution and no Court in Malta could declare them
The Legislative Development rif Human Rights and Fundamental Freedoms in Malta 231
unconstitutional on that basis - although it could declare them unconstitutional if they conflicted with any of the other constitutional provisions:
Nothing contained in any such law as is specified in the First Schedule to this Constitution37
••• shall be held to be inconsistent with the provisions of sections 33 to 45 (inclusive) of this Chapter and, subject as aforesaid, nothing done under the authority of any such law shall be held to be done in contravention of those sections. 38
The most important laws of Malta could not until 30 June 1993 be challenged in court on the ground that they ran counter to the human rights and fundamental freedoms provisions of the Constitution of Malta. This interpretation was also confirmed by case law. 39
When the 1961 and 1964 Constitutions are compared and contrasted together the following in congruencies emerge:
(a) the 1961 Constitution had no economic, social and cultural rights listed therein whilst the 1964 Constitution has an entire chapter Chapter 2 -devoted to these rights.
(b) although the human rights and fundamental freedoms provisions in the 1964 Constitution are modelled on the 1961 constitutional provisions with some minor modifications, the 1964 Constitution introduced novel provisions dealing with: prohibition of deportation (section 44) protection of freedom of movement (section 45) protection from discrimination on the grounds of race, etc. (section 46) the addition of new sub-articles (6) to (9) to the interpretation provision (section 48)40
a new provision entrenching certain provisions of the Constitution including those contained in Chapter IV thereof but excluding the second generation rights contained in Chapter II thereof (section 67). The Chapter IV provisions may only be amended by the votes of not less than two-thirds of all the members of the House of Representatives at the final voting thereon. No similar provision is contained in the 1961 Constitution other that the power granted to Her Majesty by section 121 thereof 'to amend, add to, revoke or replace' the 1961 Constitution. a new First Schedule introduced in the 1964 Constitution in terms of new sub-section 48(7) listing the five principal codes of Malta as being immune from any action alleging human rights and fundamental freedoms violation.41
The 1964 Constitution was however up for review ten years later when Malta changed its constitutional status from an independent State to a republic.
The Innovations of the 1974 Republican Constitution
On 13 December 1974 Malta became a republic.42 The amendment of the Constitution was by no means a simple matter.43 It retained the provisions of the 1964 Constitution but adopted them to suit a republican rather than a monarchical
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style of government. The President of Malta took over all the functions previously vested by the 1964 Constitution in the Governor-General.44 The President of Malta - like the UK sovereign - has few residual powers. These are enshrined in the Constitution itsel£45 Before Malta became a republic, the Head of State was the Queen to whom Maltese subjects owed allegiance. On becoming a republic, Maltese citizens thenceforth owe allegiance to the President of Malta. This notwithstanding, Malta still recognises the Queen of Great Britain and Northern Ireland as the Head of the Commonwealth of Nations due to the fact that Malta has retained her membership in the Commonwealth both on attaining independence and on becoming a republican State.46
The main innovations of the 1974 amendments to the Constitution47 in so far as human rights and fundamental freedoms are concerned- comprise the following:
(a) the 1974 amendments introduced a new provision, section 1, which in subsection (1) thereof refers expressly to human rights and fundamental freedoms and provides as follows: 'Malta is a democratic republic founded on work and on respect for the fundamental rights and freedoms of the individual.'
(b) the Chapter 2 provision on religious teaching of the Roman Catholic Apostolic Faith in State schools was shifted from Chapter 2, section 10, to Chapter 1, section 2(3), and such teaching was made compulsory.
(c) a new proviso was added to section 38(1) of the Constitution, dealing with protection from depriviation of property without compensation, as follows:
Provided that in special cases Parliament may, if it deems it appropriate so to act in the national interest, by law establish the criteria which are to be followed, including the factors and other circumstances to be taken into account, in the determination of the compensation payable in respect of property compulsorily taken possession of or acquired; and in any such case the compensation shall be determined and shall be payable accordingly.
(d) the marginal note to section 41 -which read: 'Protection of freedom of conscience' - was substituted to read 'Protection of freedom of conscience and worship'.
(e) a new subsection (2) was added to section 41 which reads as follows:
No person shall be required to receive instruction in religion or to show knowledge or proficiency in religion if, in the case of a person who has not attained the age of sixteen years, objection to such requirement is made by the person who according to law has authority over him and, in any other case, if the person so required objects thereto: Provided that no such requirement shall be held to be inconsistent with or in contravention of this section to the extent that the knowledge of, or the proficiency or instruction in, religion is required for the teaching of such religion, or for admission to the priesthood or to a religious order, or for other religious purposes, and except so far as that requirement is shown not to be reasonably justifiable in a democratic society.
The Legislative Development of Human Rights and Fundamental Freedoms in Malta 233
(f) a new subsection (3) was added to section 43 which deals with protection of freedom of assembly and association providing that 'For the purposes of this section, any provision in any law prohibiting the holding of public meetings or demonstrations in any one or more particular cities, towns, suburbs or villages shall be held to be a provision which is not reasonably justifiable in a democratic society.'
(g) the reference in section 44(4) of the Constitution to the UK Fugitive Offenders Act 1881 was updated with a reference to the Extradition (Commonwealth Countries) Act, 1970.
(h) Section 46(9) of the Constitution dealing with discrimination on the grounds of race, etc. which provided that 'no person not professing the Roman Catholic Apostolic Religion shall hold any office entailing the teaching of that religion' was substituted by a new provision to the effect that 'A requirement, however made, that the Roman Catholic Apostolic Religion shall be taught by a person professing that religion shall not be held to be inconsistent with or in contravention of this section.'
(i) the appeal from decisions of the Constitutional Court to Her Majesty in Council contemplated in the enforcement machinery of section 4 7 was abolished.
G) consequential amendments were made to section 48 - the interpretation provision- by removing references to the Crown and updating the reference to the Governor-General by that to the President of Malta.
(k) a new section was added to the Constitution- section l22A- establishing the Employment Commission consisting of a chairman and four members appointed by the President of Malta. The chairman is appointed in accordance with the advice of the Prime Minister given after he has consulted the Leader of the Opposition whilst the other four members are appointed two on the advice of the Prime Minister and two on the advice of the Leader of the Opposition. The Employment Commission ensures that, 'in respect of employment, no distinction, exclusion or preference that is not justifiable in a democratic society is made or given in favour or against any person by reason of his political opinions.' The provisions of the Constitution are supplemented by the Employment Commission Act.43 Since its establishment this Commission has decided less than 20 cases thereby making one ask whether this Commission should be wound up and its functions and pending case load assigned to the Civil Court, First Hall, sitting its its constitutional capacity and, on appeal, to the Constitutional Court.
.Atnendtnents to the Human Rights and Fundamental Provisions of the Republican Constitution
From 1974 onwards the Constitution of Malta's provisions dealing with human rights and fundamental freedoms have been amended on various occasions.
By means of Act No IV of 1987, section 56(13) was added which makes reference to the human rights and fundamental freedoms provisions of the Constitution. It
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reads as follows:
The expressions 'corrupt practice', 'offences connected with the election of members of the House of Representatives' and 'foreign interference' have the meaning assigned to them by a law for the time being in force regulating the conduct of elections49 or foreign interference50 with respect to elections, and any such law shall be deemed for the purposes of this section and of sections 32 to 47 (inclusive) of this Constitution to be reasonably required in the interests of public order and reasonably justifiable in a democratic society.
By means of Act No. XIX of 1991, section 14 of the Constitution dealing with rights of women workers was substituted by a new provision dealing with equal rights of men and women. It reads as follows:
The State shall promote the equal right of men and women to enjoy all economic, social, cultural, civil and political rights and for this purpose shall take appropriate measures to eliminate all forms of discrimination between the sexes by any person, organisation or enterprise; the State shall in particular aim at ensuring that women workers enjoy equal rights and the same wages for the same work as men.
Moreover, the discrimination provision - section 45 - was amended to prohibit discrimination also on the basis of sex. Other consequential amendments to the same tenor were made to subsections (4), (5) and (7). Two new subsections were also added to section 45:
(10) Until the expiration of a period of two years commencing on the lstjuly 1991, nothing contained in any law made before the 1st July, 1991, shall be held to be inconsistent with the provisions of this section, in so far as that law provides for different treatment to different persons attributable wholly or mainly to their respective description by sex. (11) Nothing in the provisions of this section shall apply to any law or anything done under the authority of a law, or to any procedure or arrangement, in so far as such law, thing done, procedure or arrangement provides for the taking of special measures aimed at accelerating de .focto equality between men and women, and in so far only as such measures, taking into account the social fabric of Malta, are shown to be reasonably justifiable in a democratic society.
Finally, the protection afforded to the aforesaid five Codes was retained only till 30June 1993. From thenceforth it was possible to challenge any provision in these Codes on the basis of human rights and fundamental freedoms infringements as contained in Chapter Four of the Constitution of Malta.
Act No. XIII of 2001 amended section 44 of the Constitution dealing with protection of freedom of movement to bring it in line with amendments made to the Maltese Citizenship Act51 by the Maltese Citizenship (Amendment) Act, 2000.52
Act No. V of 2003 the European Union Act53- authorized Malta to accede
to the EU. It also contained a consequential amendment to section 65 of the Constitution which ensures that when Parliament enacts laws these are done 'in conformity with full respect for human rights'.54
The Legislative Development if Human Rights and Fundamental Freedoms in Malta 235
The Antecedents to the Colonial Constitutions: The European Convention for the Protection of Human Rights and Fundamental Freedoms
Andrew Z. Drzemczewski opines that on 23 October 1953 the UK had extended the Convention's applicability to the Maltese territory. He further contends that:-
Malta attained independence on 21 September 1994 (Malta Independence Order, 1964). On the same day the Constitution of Malta became effective (Malta Government Gazette no 11,688, 18 September 1964). Under the terms of an agreement between the Maltese Government and the United Kingdom on 31 December 1964, Malta assumed, as from 21 September 1964, many international obligations and responsibilities which had rested with the Government of the United Kingdom, but these did not include obligations under the European Convention on Human Rights. 55
Indeed, in so far as the Maltese and the UK Governments were concerned, Malta had - with effect from 21 September 1964 (independence day) - succeeded to all obligations and responsibilities of the Government of the UK which arose from any valid international instrument 'insofar as such instruments may be held to have application to Malta'. 56 However, in so far as the Convention was concerned, it could not be stated by Malta that it had succeeded to it as the Convention itself did not admit such procedure: on the contrary, adherence could only be achieved through ratification or accession as established in article 66 of the Convention. 57
This meant that between 23 October 1953 and 20 September 1964, the European Convention for the Protection of Human Rights and Fundamental Freedoms applied to Malta as part of UK territory so much so that these rights and freedoms were enshrined in the 1961 Blood Constitution but that following independence, although Malta had its own Constitution with contained these rights and freedoms in Chapter 4 thereof from a municipal law point of view, Malta was no longer bound by the provisions of the said Convention from a public international law angle.
Then, on 29 April, 1965, Malta acceded to the Council of Europe and on 12 December, 1966, signed the Convention and its First Protocol with some reservations with regard to Articles 2, 6(2) and 10 of the Convention and Article 2 of the First Protocol. 58 On 23January 1967 Malta ratified the Convention and four of its Protocols. However, on ratifying the Convention, Malta did not make any declaration under Articles 25 and 46 of the Convention. The text of the declaration and reservations made by the Government of Malta when ratifying the Convention and Protocol are reproduced in the Second Schedule of the European Convention Act. But it was only twenty-one years later on 30 April 1987- that the Maltese Government decided to ratify Article 25(1) of the European Convention so as to permit the right of individual petition.
Thus, the position between 30 April1987 and 19 August 1987 was the same as that obtaining in the UK prior to the enactment of the UK Human Rights Act, 1998.59 The European Convention was not part of Maltese municipal law and it had only persuasive authority upon the courts. Decisions of the ECHR applying
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the said Convention and originating in Malta could be however enforced in Malta as foreign judgements according to the provisions of articles 826 to 828 of the Code of Organization and Civil Procedure. Indeed, Maltese Courts could not apply the European Convention because it had not been incorporated by means of an Act of Parliament into Maltese Law.60 Nor were the human rights and fundamental freedoms of the Constitution of Malta substituted by those contained in the European Convention and its First Protocol. Nor have they been substituted either after the enactment of the European Convention Act. :Malta was internationally bound by the provisions of the European Convention and four of its Protocols in the same way as the UK was then bound internationally by them.61
This situation was drastically changed on 19 August 1987 in so far as the European Convention and its First Protocol were concerned when Act No. XIV of 1987 was enacted by Parliament.62 This enactment reproduced certain provisions of the European Convention and its First Protocol in the First Schedule thereof.63
Contrary to the Constitution of Malta, it did not make any reservation whereby the five Codes mentioned in the Constitution could not be challenged in the same manner as article 48(7) of the Constitution did. But the European Convention Act was enacted like any other ordinary law and, although ordinary laws which run counter to its provisions can be declared null and void by the First Hall of the Civil Court (in its constitutional competence) or - on appeal - by the Constitutional Court,64 this does not apply to any provision of the Constitution itself which may run counter to one or more of the rights enshrined in the European Convention.
The First Hall of the Civil Court confirmed that the Maltese Courts can declare that ordinary legislation runs counter to the European Convention and its First Protocol provided that such a declaration does not run counter to the supreme law of the land. 65 It is however submitted that the ECHR is only interested in determining whether there has been a violation of the European Convention of Human Rights and is not interested in upholding the validity of a law which - although in conformity with the supreme law of Malta - runs counter to the provisions of the European Convention. If such an eventuality were to occur, then the Maltese Parliament would have to amend the Constitution so that the latter may conform with the European Convention of Human Rights. If the Constitutional Court is requested to enforce the judgement of the ECHR declaring a particular provision of the Constitution of Malta to run counter to the European Convention and to its First Protocol, then the Constitutional Court would not be in a position to do so in so far as the Constitution is supreme and the Constitutional Court has been specifically constituted to safeguard and to enforce the provisions of the Constitution and not to annul them. Indeed, the Constitutional Court can, under the Constitution, annul only those provisions of the law which run counter to the Constitution and, under the European Convention Act, annul those provisions of ordinary law which run counter to the Constitution provided that such provisions are not specifically saved as is the case with section 56( 13) and section 4 7 (7) of the Constitution. The Criminal Code has been successfully challenged on the basis of the European Convention Act, in several cases. 66 In one case, Parliament had also to introduce an amending law to substitute certain provisions of the Criminal Code
The Legislative Development rif Human Rights and Fundamental Freedoms in Malta 237
relating to bail as the old provisions were declared by the Constitutional Court to violate the European Convention.67 Even the Code of Organization and Civil Procedure has been successfully challenged under the European Convention Act.68
So has the House of Representatives (Privileges and Powers) Ordinance69 and the Civil Code,'0 just to cite two other instances.
On 9 August 1991, Parliament approved an amendment to section 47(7) of the Constitution which provides that after 30 June 1993, the five Codes aforesaid can be challenged if they run counter to the human rights and fundamental freedoms provisions of the Constitution. 71 Thus, from l July 1993 onwards all laws obtaining in Malta can be challenged for inconsistency with the human rights and fundamental freedoms provisions both under Chapter IV of the Constitution of Malta and the European Convention Act even though, in terms of section 47(8) of the Constitution, no person is entitled for any compensation in respect of human rights and fundamental freedoms infringements carried out in terms of a provision of a law operative before the 21 September 1964.
As time went by the Convention was supplemented by various Protocols and Malta signed and ratified quite a number of them as evidenced below:
Protocol Signed by Malta Ratified by Entry into force Reservations Declarations No: on: Malta on: in Malta on: by Malta: by Malta:
I 12.12.1966 23.1.1967 23.1.1967 Nil Yes
2 12.12.1966 23.1.1967 21.91970 Nil Nil
3 12.12.1966 23.1.1967 21.9.1970 Nil Nil
4 5.6.2002 5.6.2002 5.6.2002 Nil Nil
5 12.12.1966 23.1.1967 20.12.1971 Nil Nil
6 26.3.1991 26.3.1991 1.4.1991 Nil Nil
7 15.1.2003 15.1.2003 1.4.2003 Nil Nil
8 7.3.1988 7.3.1988 1.1.1990 Nil Nil
9" 6.11.1990 1073 7.5.1992 7.5.1992 Nil Nil
II 11.5.1994 11.5.1995 1.11.1998 Nil Nil 127'1
13 3.5.02 3.5.02 1.7.03 Nil Nil
1475 4.10.2004 4.10.2004 Nil Nil
Table !. Protocols to the Convention for the Protection of Human Rights and Fundamental Freedoms
Amendments to the European Convention Act
In order to give effect to the various ratifications of Protocols to the European Convention, the European Convention Act was amended by Act No. XXI of 2002 with effect from 12 October 2002.76 The definition of the expression 'Convention' was substituted by a new definition to include references to the Fourth, Sixth and Seventh Protocols whilst the First Schedule has been updated to incorporate verbatim the text of Articles l to 4 of the Fourth Protocol/7 Articles l and 2 of the Sixth ProtocoF8 and Articles l to 5 of the Seventh ProtocoF9 and a new Third
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Schedule was added setting out the text of paragraphs 22 to 25 of the Explanatory Report to the Seventh Protocol.80 New article 4A was introduced in the European Convention Act establishing the maximum compensation payable in case of wrongful conviction at €23,293,73 and that:
Such compensation shall be fixed by agreement between the party claiming such compensation or failing such agreement by the Civil Court, First Hall, upon an application by the person claiming compensation made within six months of the date when the person's conviction has been reversed or such person has been pardoned.
An appeal to the Court of Appeal - and not to the Constitutional Court - lies within twenty days from the Civil Court, First Hall'sjudgment. 81
Act No. IX of 200682 added a new provision to the European Convention Act which provides as follows:
6A. Where by a final judgment in a case against Malta the European Court of Human Rights finds that any instrument having the force of law in Malta or any provision thereof is inconsistent with the Human Rights and Fundamental Freedoms, the Prime Minister may, within the period of six months from the date that the judgment becomes final and to the extent necessary in his opinion to remove the inconsistency, make regulations deleting any such instrument or provision found to be inconsistent as aforesaid.
One understands - even though it is not so declared in article 6A - that this provision does not apply to a case where the ECHR has declared a provision of the Constitution as being inconsistent with the Convention. In such case the Prime Minister may not 'remove the inconsistency' due to the entrenchment provision of the Constitution which bars him/her from doing so.
Consequential Amendments to the Code of Organization and Civil Procedure
A consequential amendment was also made by Act No. IX of 2006 to article 24283
of the Code of Organization and Civil Procedure which added a new subarticle to that article. Article 242, prior to its amendment read as follows:
When a court, by a judgment which has become res judicata, declares any instrument having the force of law or any provision thereof to run counter to any provision of the Constitution of Malta or to any human right or fundamental freedom set out in the First Schedule to the European Convention Act, or to be ultra vires, the registrar shall send a copy of the said judgment to the Speaker of the House of Representatives, who shall during the first sitting of the House following the receipt of such judgment inform the House of such receipt and lay a copy of the judgment on the table of the House.
Following the enactment of Act No. IX of 2006, a new subarticle (2) was added to article 242 of the Code as follows:
Where there has been a judgment as is mentioned in sub-article (1) the
The Legislative Development qf Human Rights and Fundamental Freedoms in Malta 239
Prime Minister may, within the period of six months from the date that the judgment has become res yitdicata and to the extent necessary in his opinion to remove any inconsistency with the Constitution of Malta or with the relevant human right or fundamental freedom set out in the First Schedule to the European Convention Act as declared in the said judgment, make regulations deleting the relevant instrument or any provision thereof declared to run counter to the Constitution or the First Schedule to the European Convention Act as mentioned in sub-article (1).
Judicial Review of Administrative Action
Act No. XXIV of 1995 introduced new article 469A in the Code of Organization and Civil Procedure which establishes inter alia that where an administrative act is in violation of the Constitution - and this may also include the human rights and fundamental provisions of the Constitution - the court may declare such act null, invalid or without effect. Article 8 of Act No. IV of 1996 amended this provision to clarify that the six month prescriptive period to file an action for judicial review does not apply to cases where an administrative act violates the Constitution. Hence there is no prescriptive period imposed for instituting actions concerning human rights and fundamental freedoms infringements.
Subsidiary Legislation Relating to the Enforcement of Hu:man Rights and Fundamental Freedoms Provisions
Section 46(7) of the Constitution enables the Rule Making Board established under the Code of Organization and Civil Procedure to make rules of court:
Rules of Court making provision with respect to the practice and procedure of the Courts of Malta for the purposes of this section may be made by the person or authority for the time being having power to make rules of court with respect to the practice and procedure of those Courts, and shall be designed to secure that the procedure shall be by application and that the hearing shall be as expeditious as possible.
A similar provision exists in the European Convention Act whereby article 4(6) applies, mutatis mutandis, the rules of court made under section 46(7) of the Constitution. The latest set of such Rules of Court contained in Subsidiary Legislation 12.09 thus refer to proceedings under both the Constitution of Malta and the European Convention Act.
Such rules were first made in 1964 - Fundamental Rights and Freedoms Rules of Court, 196484 and Her Majesty's Constitutional Court Rules, 1964.85 Both sets of rules were subsequently repealed in 1993 by, and incorporated within, the Court Practice and Procedure Rules.86 The latter were, in turn, also replaced by the Court Practice and Procedure and Good Order Rules, 200887 which -since independence - consolidated all extant rules of court made under both the Constitution of Malta and the Code of Organization and Civil Procedure into one set of rules of court.
240 Kevin Aquilina
Conclusion
From a historic legislative viewpoint, Malta's growth in terms of the incorporation of human rights and fundamental freedoms in its national law has been consistent and incremental. Nonetheless, EU membership and the development of a human rights consciousness amongst the population indicate that human rights and fundamental freedoms will continue to become more ingrained in Maltese legislation than before. However, there is still room for improvement in this branch of the law. Third generation rights should be incorporated in the Maltese Constitution; a wide interpretation of the expression 'human rights' in section 65(1) of the Constitution should be given not only to include Chapter IV human rights and fundamental freedoms but to encompass also third generation rights as well as other rights contained in specialized human rights laws already obtaining on the Maltese Statute Book; the remit of the Ombudsman should be extended to empower him to investigate cases of infringement of human rights and fundamental freedoms by the public administration;88 and to embody the right to good administration in the Constitution as a human right.89 In so far as the European Convention is concerned, Malta still has to adhere to the Twelfth Protocol which extends the guarantee of non-discrimination in Article 14 of the Convention to 'any right set forth by law'. Undoubtedly, it can be stated without hesitation that Maltese Law affords a preferential treatment to human rights and fundamental freedoms when it establishes a hierarchy of laws favouring such rights and freedoms and any other laws which are repugnant to or inconsistent therewith are considered null and void to the extent of their repugnance or inconsistency.90
Endnotes
It is not my intention in this paper to discuss any of the following matters: (a) the history of and an analysis of the provisions concerning specialized human
rights which are incorporated into various Maltese laws; (b) the various amendments which have been made to the Constitution of Malta
regulating the democratic human right of voting at elections; (c) third generation human rights; (d) the contribution of case law- whether emanating from local courts or from
international and regional courts, tribunals and other competent bodies - to the interpretation, application and development of human rights and fundamental freedoms in Malta, including changes made to legislation as a result of such case law;
(e) the plurality of Maltese institutions- judicial and administrative- which play a role in safeguarding human rights and fundamental freedoms;
(f) pertinent international and regional human rights instruments adhered to by Malta; and (h) the impact on human rights and fundamental freedoms through Malta's accession to
the EU. All these aspects undoubtec!Iy can form the subject matter of other studies in their own right.
2 UN General Assembly Resolution 217 (III).
The Legislative Development rif Human Rights and Fundamental Freedoms in Malta 241
3 H.J. Steiner and P. Alston maintain that arguments 'have been developed for viewing all or part of the Declaration as legally binding, either as a matter of customary international law or as an authoritative interpretation of the UN Charter'. H. J. Steiner and P. Alston, International Human Rights In Context: Law, Politics, Morals, second edition, Oxford: Oxford University Press, 2000, p. 143.
4 The Malta (Constitution) Order in Council 1959. 5 The Malta (Constitution) Order in Council 1961. 6 Constitution of Malta, Malta Independence Order, 21 September 1964·, as amended.
The text of the Declaration is printed in H. Frendo, Maltese Political Developments 1798 1964: A Documentary History, Malta: Interprint Limited, 1993, pp. 55-6. Vide also JJ.
Cremona, 'From The Declaration of Rights to Independence' and 'The French Declaration of Rights and its Maltese Derivative' in Selected Papers 1946-1989, Volume I, Malta: Publishers Enterprises Group (PEG) Ltd., 1990, pp. 76-85 and pp. 264-9 respective!)'
8 Cf.J. M. Ganado, 'British Public Law and the Civil Law in Malta', Current Legal Problems, Volume 3, pp. 195-213 andJJ. Cremona, 'The Rule of Law as a Fundamental Principle of the European Convention on Human Rights' in Selected Papers 1990-2000, Volume II: Human Rights and Constitutional Studies, Malta: Publishers Enterprises Group (PEG) Ltd., 2002, pp. 53-67. This paragraph of the Declaration enshrines the human rights principles of nullum crimen sine lege and nulla poena sine lege. For a discussion of these principles, seeK. Aquilina, 'The Human Right Principle of Legality: Nullum Crimen/Nulla Poena Sine Lege Certa' in Law and Practice, Issue 18, June 2008, pp. 20-31.
9 Article 3 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms refers to the obligation of the High Contracting Parties to undertake to 'hold free elections ... '.
10 Ibid. II For more details on press censorship in Malta and its abolition vide H. W. Harding, Maltese
Legal History Under British Rule (1801-1836), Valletta: Progress Press Co. Ltd., 1980, pp. 405-16;]. F. Grima, Printing And Censorship in Malta: 1642-1839- A General Survey, Valletta: Valletta Publishing Co. Ltd., 1991; W. Zammit, Printing in Malta: 1642-1839: Its Cultural Role From Inception to the Granting of Freedom of the Press, Malta: Gutenberg Press Ltd., 2008; Reports of the Commissioners Appointed to Inquire into the Affairs of the Island of Malta and Correspondence Thereupon, Part III, London: House of Commons, 27 March 1839, pp. 72-115 and Further Correspondence Relative to the Reports of the Commissioners Appointed to Inquire into the Affairs of the Island of Malta, House of Commons, 22 Aprill839, pp. 2-5.
12 Articles 449(l)(d) and (6) and 527 of the Criminal Code. 13 Articles 392(2), 634 (added by Act No. VIII of 1909), 635(1)(c), 643 and 658 of the Criminal
Code. 14 Articles 356(1) and 435(1) of the Criminal Code. 15 Articles 320 and 322 of the Civil Code. 16 Article 321 of the Civil Code. 17 Article 443 of the Civil Code. 18 Chapter 68 of the Laws of Malta, enacted by Ordinance No. XX of 1931. 19 Act No. XXII of 1924. For a discussion of this law, see D. Fenech, Responsibility And Power
In Inter-War Malta, Book One: Endemic Democracy (1919-1930), Malta: PEG Ltd, 2005, pp. 154-5 and 259-60.
20 For a summary of this case vide K. Aquilina, Treason and Sedition in Maltese Law, LL.D. thesis, Faculty of Law, University of Malta, 1988, pp. 182-5.
21 Section 49 read as follows: 49. (1) All persons in Malta shall have full liberty of conscience and enjoy the free exercise of their respective modes of religious worship. (2) No person shall be subject to any disability or be excluded from holding any office by reason of his religious profession.
22 Section 51 provided as follows: 51. (1) No property, movable or immovable, shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in Malta except by or under the provisions of a law which, of itself or when read with any
242 Kevin Aquilina
other law in force in Malta-(a) requires the payment of adequte compensation therefor; (b) gives to any person claiming such compensation a right of access, for the
determination of his interest in the property and the amount of compensation, to the Superior Courts of Malta;
(c) gives to any party to proceedings in the Superior Courts of Malta relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in those courts sitting as courts of original jurisdiction.
(2) (a) Nothing in this section shall affect the operation of any existing law. (b) In this subsection "existing Jaw" means a Jaw in force on the date of the
commencement of this Order, and includes a Jaw made after that date which amends or replaces any such Jaw as aforesaid (or such a law as from time to time amended or replaced in the manner described in this paragraph) and which does not-(i) add to the kinds of property that may be taken possession of or the rights over
and interests in property that may be acquired; (ii) add to the purposes for which or circumstances in which such property may
be taken possession of or acquired; (iii) make the conditions governing entitlement to compensation or the amount
thereof Jess favourable to any person owning or interested in the property; or (iv) deprive any person of any right as is mentioned in paragraph (b) or paragraph
(c) of the last foregoing subsection. (3) Nothing in this section shall be construed as affecting any general law
(a) for the imposition of any tax, rate or duty; (b) for the imposition of penalties or forfeitures for breach of the law, whether under civil process or after conviction of an offence; (c) relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts; (d) relating to the vesting and administration of the property of persons adjudged bankrupt or otherwise declared insolvent, of persons of unsound mind, of deceased persons, and of companies, other corporate bodies and unincorporated societies in the course of being wound up; (e) relating to the execution of judgments or orders of courts; (f) providing for the taking of possession of property which is in a dangerous state or is injurious to the health of human beings, plants or animals; (g) relating to enemy property; (h) relating to trusts and trustees; (i) relating to the limitations of actions; G) relating to property vested in statutory corporations; (k) relating to the temporary taking possession of property for the purposes of any examination, investigation or enquiry; or (I) providing for the carrying out of work on land for the purposes of soil conservation.
( 4) The provisions of this section shall apply to the compulsory taking of possession of property and to the compulsory acquisition of rights over and interests in property by or on behalf of the Crown.
23 Appendix H, entitled 'Constitutional Provision for Human Rights' reads as follows: I. The insertion in written constitutions of provisions designed to protect human rights and fundamental freedoms is not a novel idea, but it is only in modern times that history has seen the development of a systematic and comprehensive definition and declaration of human rights, notably in the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations without a dissenting vote on the 10'" December, 1948. This has led to the insertion of a declaration of many of those rights in new constitutions adopted since the end of the Second World War. The most recent and comprehensive model, so far as the British Commonwealth is concerned, is to be found in the Constitution
The Legislative Development qf Human Rights and Fundamental Freedoms in Nfalta 243
of the Federation of Nigeria, Chapter III, "Fundamental rights", which to a large extent followed the declaration of rights contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The United Nations Declaration has been concerned with a wide declaration of rights, some of which could be protected by law, whilst others (mainly the so-called "economic, social and cultural rights" set out in Articles 22 et seq), could be realized only through positive legislative or governmental action directed to that end. The European Convention and the Nigerian Constitution, on the other hand, were concerned only with the rights of the former class, which were of such a nature that they could be protected by the insertion of appropriate provisions in a constitution or convention; furthermore, the framers both of the Convention and the Constitution were necessarily concerned to cut down the rights declared in general terms by the Universal Declaration, by expressing the necessary qualifications, which had rightly been ignored in the Declaration, but must of course be considered by the legal draftsman. 2. The recommendations comprised in the Report arc therefore directed to two different ends: first, to write into the constitution, so tar as that is practicable, the personal, civil and political rights dealt with in Articles 2 to 21 of the Universal Declaration; and secondly, to include in the preamble to the constitution a reference to the whole Declaration so as to emphasize also the economic, social and cultural rights set forth in the remaining Articles commencing with Article 22, and representing ultimate aims of human government. There are precedents to be found for the latter, a~ for the former. As to the latter, there is the proposal mentioned by the Secretary of State for the Colonies in the House of Commons on the 21'' June, 1960, in relation to a new constitution for Trinidad and Tobago, that it "should include an appropriately worded preamble based on the preamble of the United Nations Declaration of Human Rights" and see also Article I of the Statute of Togoland, by which the Trust Territory of Togoland under the French Administration is declared to be "a republic based on the respect for international treaties and conventions and the principles set forth in the Universal Declaration of Human Rights and in the preamble to the Constitution of the French Republic." As to the former (the writings in earlier Articles, dealing with personal, civil and political rights), the Nigerian Constitution has already been mentioned, and other earlier examples are collated in a United Nations publication, "The Universal Declaration of Human Rights, A Standard of Achievement", at pages 24 and 25; see also the Report of the Advisory Commission on the Review of the Constitution of Rhodesia and Nyasaland, 1960, Cmd. 1148, pages 79 to 82, where reference is made to the recent Canadian Bill of Rights, and generally as to the incorporation of safeguards in written constitutions see The Declaration of Delhi, adopted by the International Congress of Jurists in New Delhi in 1959.
24 This Appendix reproduces extracts from Maltese newspapers containing threats by the Malta Labour Party of Dom Mintoff that, when in government, it would set up Tribunals to try the servile and the traitors of Malta.
25 Colonial Office, Report of the Malta Constitutional Commission, London: Her Majesty Stationery Office, February 1961, Cmnd. 1261, p. 27.
26 Ibid., p. 28. 27 Made at the Court at Buckingham Palace by the Queen of Great Britain and Northern Ireland
on 24 October 1961. 28 C[ Report of the Malta Constitutional Commission, 1960, London: HlVISO, Cnmd. 1261, p. 27. 29 Signed in Rome on 4 November, 1950. 30 Made on 2 September 1964 at the Court of Buckingham Palace. 31 1964 c.86 of tl1c Statutes of the United Kingdom. 32 These rights deal with the right to work, promotion of culture, safeguarding of landscape
and historical and artistic patrimony, religious teaching in State schools, compulsory and free primary education, educational interests, protection of work, hours of work, rights of women workers, minimum age for paid labour, safeguarding labour of minors, social assistance and insurance, encouragement of private economic enterprise, protection of artisan trades, and the encouragement of co-operatives.
33 C[ sections 7 to 21 of the 1964 Constitution of Malta. 34 Section 21 of the Constitution.
244 Kevin Aquilina
35 The marginal note to section 32 reads 'Fundamental rights and freedoms of the individual'. 36 Sections 32 to 4 7 of the Constitution relate to the follo\\~ng rights, freedoms and enforcement
mechanism: section 33 -protection of right to life; section 34- protection from arbitrary arrest or detention; section 35 - protection from forced labour; section 36 - protection from inhuman treatment; section 37 -protection from deprivation of property mthout compensation; section 38 - protection from privacy of home or other property; section 39 - provisions to secure protection of law; section 40 - protection from freedom of conscience and worship; section 41 - protection of freedom of expression; section 42 - protection of freedom of assembly and association; section 43 - prohibition of deportation; section 44 - protection of freedom of movement; section 45 - protection from discrimination on the grounds of race, etc.; section 46 - enforcement of protective provisions; and section 4 7 - interpretation of Chapter IV.
37 The First Schedule to the Constitution listed the following five Codes: the Criminal Code (Chapter 9), the Code of Police Laws (Chapter I 0), the Code of Organization and Civil Procedure (Chapter 12), the Commercial Code (Chapter 13) and the Civil Code (Chapter 16).
38 Section 47(7) of the Constitution. 39 Cf., e.g., Leone Misrahi vs. Rosaria Cassar et (Her 1'hyesty's Constitutional Court- hereinafter
referred to as HMCC - 10 June 1966), Salvatore Seychcll vs. Angelo Grech (HMCC 10 April 1967), Il-Pulizija vs. Francesco Certo et (HMCC 14 August 1968), Cecil Pace vs. Onor. Duminku Mintoff noe. (HMCC 9 April 1973), Emmanuel Formosa vs. Kummissarju talPulizija (HMCC 16 April 1973), Rev. Mons. Philip Calleja vs. Police Inspector Denis Balzan, (Constitutional Court 25June 1976),John Bondin vs. Avukat Generali (Constitutional Court 15 September 1976), Prof. Dr. Victor Griffiths et. vs. Onor. Prim Ministru et (Constitutional Court 27 February 1978).
40 These read as follows: (6) In relation to any person who is a member of a disciplinary force raised otherwise than as aforesaid and lawfully present in Malta, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter. (7) Nothing contained in any such law as is specified in the First Schedule to this Constitution and, until the expiration of a period of three years commencing with the appointed day, nothing contained in any other law made before the appointed day shall be held to be inconsistent with the provisions of sections 34 to 46 (inclusive) of this Chapter and, subject as aforesaid, nothing done under the authority of any such law shall be held to be done in contravention of those sections. (8) Where any provision of law enacted before the appointed day is held to be inconsistent with any of the provisions of sections 34 to 46 (inclusive) of this Chapter, no person shall be entitled to compensation in respect of anything done under the authority of that provision before it was so held to be inconsistent. (9) Nothing in section 38 of this Constitution shall affect the operation of any law in force immediately before 3 March 1962 or any law made on or after that date that amends or replaces any law in force immediately before that date (or such a law as from time to time amended or replaced in the manner described in this subsection) and that does not (a) add to the kinds of property that may be taken possession of or the rights over and interests in property that may be acquired; (b) add to the purposes for which or circumstances in which such property may be taken possession of or acquired; (c) make the conditions governing entitlement to compensation or the amount thereof less favourable to any person owning or interested in the property; or (d) deprive any person of any right such as is mentioned in paragraph (b) or paragraph (c) of section 38(1) of this Constitution.
41 Cf. supra footnote 36. 42 Cf. Act No. LVIII of 1974. 43 Cf. E. Mizzi, Malta In The Making- 1962-1987: An Eyewitness Account, Malta, 1995, pp. l57-
72;JJ. Cremona, 'Birth-pangs of a Republic: Section 6 of the Maltese Constitution' in Selected Papers 1999-2000, Malta: Publishers Enterprises Group (PEG) Ltd., 2002, pp. 129-41; S. A. De Smith, The New Commonwealth and its Constitutions, London: Stevens, 1964, p. 109 andJ.M.
The Legislative Development if Human Rights and Fundamental Freedoms in Malta 245
Finnis (ed.), Annual Survey of Commonwealth Law, Oxford: Clarendon Press, 1975, pp. 46-7. 44 In terms of section 49 of the 1964 Constitution of Malta, the Governor-General of Malta
was appointed by Her Majesty and held office during Her Majesty's pleasure. The GovernorGeneral was Her Majesty's representative in Malta.
45 C( Professor E. Busuttil, The Monarchy and the Commonwealth, Msida: Malta University Press, 1972.
46 Although there is no explicit reference in the Constitution to Malta's membership of the Commonwealth, the interpretation section of the Constitution, section 124(1), defines 'the Commonwealth' as 'Malta, any country to which section 23 of this Constitution applies and any dependency of any such country'. Section 23, in turn, relates to Commonwealth citizenship whilst section 24 to the criminal liability of Commonwealth citizens. Thus, the Constitution recognizes Malta as being part of the Commonwealth and that Maltese citizens have the status of Commonwealth citizens.
47 The human rights and fundamental freedoms provisions were amended by articles II to 16 of Act No. LVIII of 1974.
48 Chapter 267 of the Laws of Malta. 49 Since 1991 the applicable law is the General Elections Act, Chapter 354 of the Laws of Malta. 50 C( the Foreign Interference Act, Chapter 300 of the Laws of Malta. 51 Chapter 188 of the Laws of Malta. 52 Act No. IV of 2000. 53 Chapter 460 of the Laws of Malta. 54 Article 65(1) of the Constitution reads as follows:
Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Malta in conformity with full respect for human rights, generally accepted principles of international law and Malta's international and regional obligations in particular those assumed by the treaty of accession to the European Union signed in Athens on 16 April, 2003.
55 A. Z. Drzemczewski, European Human Rights Convention in Domestic Law: A Comparative Study, Oxford: Clarendon Press, 1983, p. 17 5.
56 Exchange of Letters between the Government of the United Kingdom of Great Britain and Northern Island and the Government of Malta Relating to the Inheritance of International Rights and Obligations of the Government of Malta, London: Her Majesty's Stationery Office, Aprill965, Cmnd. 2633.
57 For a more detailed discussion on whether Malta could succeed to the European Convention, vide M.A. Eissen, 'The Independence of Malta and the European Convention on Human Rights,' British Yearbook of International Law 41, 1965-6, pp. 401-410.
58 Signed in Rome on 4 November 1950 and the First Protocol thereto signed in Paris on 20 March 1952. Moreover, Malta had also ratified the Second, Third and Fifth Protocols thereto signed in Strasbourg on the 6 May 1963, 6 May 1963 and 20 January 1966 respectively.
59 Since Malta had ratified the European Convention and accepted the jurisdiction of the then - now defunct- European Commission of Human Rights, the claimant who lost in his attempt to obtain redress under Maltese Law and who had exhausted his local remedies, could petition the European Commission. If the Commission decided that the allegation of the violation of the European Convention was admissible, it could then refer the matter to the ECHR for the latter's final determination.
60 Section 65(1) and 72 of the Constitution of Malta provide that Parliament may make laws for the peace, order and good government of Malta and that such power has to be exercised by bills passed by the House of Representatives, assented to by the President and published in the Gazette. This implies that when a member of the executive organ of the State ratifies an international instrument, that instrument does not become law unless the procedure outlined in sections 65(1) and 72 of the Constitution are complied with. The European Convention of Human Rights had not been incorporated into Maltese law by an Act of Parliament prior to the enactment of the European Convention Act, 1987.
61 The position in the UK was prior to the enactment of the Human Rights Act 1998- similar to that of Malta as between 30 April 1987 and 19 August 1987. At the time of ratification of the European Convention, the UK Government assumed that its domestic laws were in conformity
246 Kevin Aquilina
with the provisions of the European Convention so much so that it did not feel the need to enact the human rights and fundamental freedoms provisions of the Convention and its First Protocol into domestic law. C£ A. Z. Drzemczewski, op. cit., pp. 178-87.
62 The Ratification of Treaties Act, 1983 (Act No. V of 1983 - Chapter 304 of the Laws of Malta) does not apply to the European Convention as the latter was ratified in 1967 prior to the enactment of the 1983 Act. The Ratification of Treaties Act provides, inter alia, that where a treaty to which Malta becomes party after the coming into force of the said Act (i.e. after 9 March 1983) is one which affects or concerns the relationship of Malta with any multinational organization, agency, association or similar body, such treaty shall not enter into force with respect to Malta unless it has been ratified or its ratification has been authorised or approved by a resolution of the House of Representatives.
63 Articles 2 to 18 of the Convention have been reproduced ad litteram in the First Schedule and so have articles I to 3 of the First ProtocoL
64 According to section 46(2) of the Constitution and article 4(2) of Act No. XIV of 1987, the Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in connection to alleged violations of his human rights and fundamental freedoms as contemplated in the Constitution of Malta and/ or in the European Convention and such court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of the aforesaid rights and freedoms. An appeal shall lie to the Constitutional Court. Moreover, in virtue of article 5 of Act No. XIV of 1987, any person may petition the Secretary General of the Council of Europe when a final decision has been delivered by the Constitutional Court and the petitioner feels aggrieved from the said decision.
65 C£ Onor. Carmen Sant vs. Dr. Enrico sive Harry Vassallo, LL.D., et, Civil Court, First Hall, 4 Aprill991 per Mr.Justicejoseph Said Pullicino, LL.D.
66 The following are some examples: II-Pulizija vs. Carmela sive Charles Ellul Sullivan et (Constitutional Court, 5 April 1989) and Dr Lawrence Pullicino, LL.D. vs. Kap Kmandant talForzi Armati ta' Malta bhala Kap tal-Korp tal-Pulizija et (Constitutional Court, 12 Aprill989).
67 Avukat Dr Lawrence Pullicino, LL.D. vs. Kap Kmandant tal-Forzi Armati bhala Kap tal-Korp tai-Pulizija et (Constitutional Court, 10 October 1991).
68 C£ Frank Mifsud vs. Onor. Prim Ministru noe et (Constitutional Court, 10 October 1991). 69 Chapter 113 of the Laws of Malta. Vide Demicoli v. Malta, ECHR, 27 August 1991. 70 Chapter 16 of the Laws of Malta. Vide Mizzi v. Malta, ECHR, 12January 2006. 71 Article 47(7) of the Constitution, as amended by article 4 of Act No. XIX of 1991 provides that:
Until the expiration of a period ending on the 30th june, 1993, nothing contained in any such law as is specified in the First Schedule to this Constitution ... shall be held to be inconsistent with the provisions of sections 33 to 45 (inclusive) of this Chapter and, subject as aforesaid, nothing done under the authority of any such law shall be held to be done in contravention of those articles.
72 This Protocol has been repealed as from the date of entry into force of Protocol No. II. 73 This Protocol has lost its purpose since the entry into force of Protocol No. II. 74 Malta has neither signed nor ratified this Protocol which deals with a general prohibition of
discrimination. 75 This Protocol is not yet in force. 76 Legal Notice 311 of 2002. 77 These Articles deal with: prohibition of imprisonment lor debt; freedom of movement;
prohibition of expulsion of nationals and prohibition of collective expulsion of aliens. 78 These Articles concern the abolition of the death penalty and the death penalty in time of war. 79 These Articles regard procedural safeguards relating to expulsion of aliens; right of appeal in
criminal matters; compensation for wrongful conviction; right not to be tried or punished twice; equality between spouses.
80 These paragraphs explain the right for compensation for wrongful conviction. 81 Article 4A(3) of the European Convention Act. 82 This Act came into force on 7 July 2006. 83 This provision had been introduced by article 120 of the Code of Organization and Civil
Procedure (Amendment) Act, 1995 Act No. XXIV of 1995. Act No. IX of 2006 substituted
The Legislative Development rif Human Rights and Fundamental Freedoms in 1\1alta 247
the words 'any provision of any law' in the 1995 version by the words 'any instrument having the force of law or any provision thereof'.
84 Legal Notice 48 of 1964. 85 Legal Notice 49 of 1964. 86 Legal Notice 35 of 1993 as amended by Legal Notices 42 of 1993 and 129 of 2000. The text
of these Rules are reproduced in Giuseppe Mif~ud Bonnici, Constitutional Procedure Relative to Fundamental Rights and Freedoms, Malta: Midsea Books Ltd., 2004, pp. 163-6.
87 Legal Notice 279 of 2008 as amended by Legal Notice 333 of 2008, Subsidiary Legislation 12.09 of the Laws of Malta.
88 For a discussion of the Ombudsman's role in the protection of human rights, vide Parliamentary Commissioner for Administrative Investigations, Annual Report for the Period JanuaryDecember 2007, Valletta: Office of the Ombudsman, October 2008, pp. 11-16.
89 Cf. article 41 of the EU Charter of Fundamental Rights of the European Union (2007 /C 303/01) which now forms part of the Treaty of Lisbon of 13 December 2007 (2207 /C 306/01) even though this Treaty is not yet in force. A similar attempt to incorporate the said Charter was made in the Treaty Establishing a Constitution for Europe (2004/C 310/01).
90 Vide section 6 of the Constitution of Malta and article 3(2) of the European Convention Act.
