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The Legislative Development of Human Rights and Fundamental Freedoms in Malta: a Chronological Appraisal

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The Legislative Development of Human Rights and Fundamental Freedoms in Malta: a Chronological Appraisal 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 ![{ international maritime law throughout the Globe Introduction This paper provides a brief outline of the legislative development of first and second generation human rights and fundamental freedoms from the British period to post-independent Malta, with particular focus on the period 1953 to 2008. 1 Human rights and fundamental freedoms as we know them today have been codified after WW II. Since then various declarations and conventions incorporating human rights and fundamental freedoms have come to the fore on an international, regional and national level. The UN Universal Declaration of Human Rights of lO December 19482 and the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950- the first soft law3 and the second hard law immediately come to mind. Nevertheless, in so far as Malta is concerned, we can trace our human rights history back to the Declaration of Rights of the Inhabitants of the Islands of Malta and Gozo of 15 June 1802 - a declaration which is reminiscent of similar declarations proclaimed during the late eighteenth century such as the American Bill of Rights of 25 September 1789 and the French Declaration des Droits de l'Homme et du Citoyen of 26 August 1789 and, very much earlier, the English Magna Carta of 15 June 1215. What is of historical relevance of the 1802 Maltese Declaration is that it was drawn up by the Maltese themselves - it was our first autochthonous human rights instrument which was not granted to us by a foreign colonial power who ruled Malta over time as were subsequent instruments such as the human rights and fundamental freedoms provisions in the 1959 Maltese Constitution, 4 the 1961 Blood Constitution5 and the current 1964 Constitution of Malta,6 all three Constitutions being handed down to the Maltese by the sovereign British colonial ruler. 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 Code­ which 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 self­ incrimination; 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 21 22 two provisions sections 49 and 51 - 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.
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