Elements of Maltese Law 1st Semester PDF

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Elements of Maltese Law 1st Semester...

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Elements of Maltese Law

EMA1001

Introduction Constitution is the most basic and highest law of the land, because it defines government, parliament, elections, judiciary, taxation, public order etc. It is the defining political document of the state. These days it goes further than that. It takes into consideration socio-economic factors such as budget, broadcasting, etc. Any law which conflicts or contradicts the constitution will be as is stated “Null and Void”. It is the supreme law and prevails over ordinary laws. Malta follows the continental constitutional format. The present constitution, which originates from the British independence of Malta in 1964, has been amended throughout the years to take into account issues which surface from time to time, such as double citizenship.

The Constitution Chapter 1 The introductory part of the constitution refers to national territory and questions such as language, national anthem etc. Article 6 states that any other law or measure in contradiction or in conflict is null and void, and that to the extent of inconsistency, the constitution will prevail.

Chapter 2 Copied / inspired by the Indian Constitution. It is a list of state aspirations (example: state should promote work, enterprise, environment, creativity etc) However, they are not enforceable in any court, so there is no legal consequence.

Chapter 3 Citizenship: Double citizenship for example. It has no effect on voting; only residence is a factor

Chapter 4 Fundamental and Human Rights

Chapter 5 It regulates the presidency of the office of the republic. It becomes vacant once every 5 years and the president is elected by the House of Representatives. The duties of the president are regulated elsewhere by the constitution. Important duties such as signing of bills after being passed on from parliament to enact a law are undergone by the president.

Chapter 6 There has to be a Parliament / House of Representatives in Malta. It is not a choice. It determines who may and may not vote, and who may or may not stand for an election as a candidate. The maximum term of Parliament is 5 years and 6 months. The parliament has the power to legislate laws, and they enacted on average every week. The law making procedure is either regulated or directive. A regulation is of a direct binding effect, whilst a directive is an order from Brussels addressed to member states which is transposed to local domestic legislation.

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The constitution regulates important political questions. The parliament is resided by the speaker and deputy speaker. The constitution differentiates as to the majorities required to pass laws. Amending the constitution is trickier. It needs a qualified majority, which means ⅔ positive votes of all the members of the house. For certain critical changes, such as changing over to a monarchy, or abolishing parliament, ⅔ positive votes are needed as well as a national referendum (direct democracy). The mechanics of government is provided by the constitution. -

The government is entitles and entrusted to a cabinet of ministers A leader of opposition with his own views Appointment of parliamentary secretaries Collegial Responsibility Strong parallel to Westminster (British Model)

Chapter 7 Judiciary of the courts; provides for the appointment of the judiciary. The judiciary has two principles it is independent and impartial upon: Once a judge is appointed to office, unless there is a case of illness or misbehaviour, the person can’t be removed by any government until retiring age,  There can be no taxation without representation. Therefore, the budget has to be approved by parliament. There is attention dedicated to public service, rules of dismissal, appointing etc. 

Promotions within the civil service is generally delegated and administered by a commission known as the Public Service Commission. The Broadcasting Authority is the watchdog over the airwaves (TV and Radio). This is done to ensure fairness in public broadcasting. It also licenses private televisions. The employment Commission is there to ensure that there is no political discrimination in the workplace. When claiming a human rights violation, there must be personal interest. For other issues, any citizen may complain, so there is no personal interest required. This is known as Popular Action. Lecture 2

Under the law of Malta, there are three levels of protection of Fundamental Rights and Freedoms.

Chapter 4 of the Constitution This chapter is/was derived mainly from the provisions of the European Convention of Human Rights. It formed part of the 1964 constitution but it was not the first human rights chapter that we have, since the 1961 constitution also contained a chapter on human rights.

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In 1987, an Act of Maltese parliament, the European Convention Act introduced the provisions of the European Convention as part of Domestic Law.

The European Convention of Human Rights After ruins in World War Two, a group of member states (Konrad Adenawer – Germany, François Monét – France, Degasperi – Italy) were among the pioneers to create an organisation to foster co-operation between stated protection of Human Rights and the rule of Law – setting up the council of Europe. Today, the council of Europe is still very active.

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The convention is administered by the council of Europe. First of all it imposes an obligation on the sign atones and it is therefore a duty and an obligation of each member of state to guarantee its citizens the enjoyment of these fundamental rights. For more significantly is the right known as the right of individual petition whereby a citizen may initiate proceedings against his state alleged for playing violation. This means , the private citizen may take the government before the European court. The council has 47 member states, many of which are not part of the European union. The 2 institutions and organisations (council of Europe and eu) are distinct

Content of Human Rights This involves the study of fundamental rights, which is the generation of human rights. 1. The first generation refers to the civil political rights E.g.: freedom of expression. 2. The second generation refers to social economical rights E.g.: employment, housing, social security, health care. 3. The third generation refers to rights related to access of education and environment guarantees. A citizen can action his/her government for failure to allow freedom of expression of access to court discrimination. On the other hand, at the current state of development, there is no protection at human rights level for unemployment.

The Right of Law In subsequent protocols, some member states have signed up towards the death penalty. Therefore those states who have rectified this protocol have excluded the existence in their legislation of the death penalty (A protocol is an addition to the existing treaty). -

Protocol number 6 to the convention basically provides for the abolition of the death penalty in time of peace. Both the convention and constitution present that no person shall be deprived of life, except following a judgment by a court for a criminal conviction links the death penalty to a criminal Page | 3

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offence under the law of Malta while the convention understandably speaks of a conviction in respect of a criminal offence. -

Abortion is illegal in Malta but would not be in violation of the European Convention.

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The provisions of the right to life have other extensions. E.g.: when a soldier is killed in action. The constitution provides that if death happens as a lawful act of war, then the survivors of the person who is killed may not claim a violation of the right to life.

What happens if the defense of public order, police, armed forces or military, happen to kill a person during the course of their duties? - The european council of human rights has laid down the test of proprtionality and resonableness this means that order for ex to open fire has to be justified that a necessity existed to actually open fire and that however , it was proportional. - These situations typically arise in mob violence where the authorities have to take quick decisions, how to control violence from spreading. - Another situation where proportion is not in violation of the convention where such forces are used either to affect a lawful arrest or to prevent the escape of a person lawfully detained. -

Finally the last exception is where force is used to put down a riot or an insurrection (a popular arising against authority of state to over throw ruling order). Both are cases of mob violence.

Articles 3 and 4 of the Convention and Articles 35 and 36 of the Constitution Articles 3 relates to the prohibition of torture. It states that no one should be subjected to torture or inhuman or degrading treatment. This refers to methods of treatment particularly to police custody or even during detention which goes beyond certain basic minimum. E.g.: brutality and beating leading to death of the people in custody. Other examples during interrogations would include: the deprivation of people from sleep, keeping suspects standing up or in uncomfortable positions until a confection is extracted, burns by cigarette buds, torches in eyes of suspect. There is a similar provision in Article 36 of the constitution. The next article we are looking at prohibits against forced labour. No person may be ordered to do compulsory work against his/her will. Its relevance is however in exception. Both the constitution and convention do not consider as force or compulsory, labour where a person is bound to work while in detention (serving time in prison). Doctors and bakers could be expected to continue to provide their service because they are deemed as an essential service.

The right to liberty and security Under which circumstances may a person be deprived of his/her personal liberty? How lawful is detention by the authorities? Page | 4

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Detention may take various forms. It may be imprisonment, following a court judgment. It could be a situation where a person is under suspicion and being investigated and, worse still, when a person is detained for no reason. The articles which are to be discussed are the exceptions which justify a restriction of personal freedom, unless any limitation falls within the terms of these exceptions, then detention is illegal and runs against the convention and the constitution. The first ground to limiting a person’s freedom is when there is a conviction by a court ordering detention. This may include also a court order to appear. Detention may be lawful where the person is unfit to plead to a criminal charge. In general terms, in order to stand a criminal trial, a person must have the mental capacity to choose and understand. This is known as the plea of insanity. A person doesn’t have the mental capacity to choose and understand so it’s either ‘’not guilty but reason of insanity’’, ‘guilty but insane mentally ill’’.Therefore detention as a consequence of unfitness to plead to a criminal charge may be valid, depriving a person’s liberty. -

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A court order to secure complience with such court order: What happens if a person disobeys a court order? The rule is that there exist sanctions (consequences) being referred to here as a consequence of disobeying a court order as content of court. Sometimes, a penalty for content of court may include detention. The powers of arrest of the police or the authorities: the police are entitled to detain people for the purpose of questioning them, and establishing certain conclusions. The rules are that an arrest is justified when a suspicion exists that a person has committetd or is about to commit a criminal offense. Retroactive :after something is commited (Past) prospective : when they think you are about to do something (Future) – the suspicion has to be reasonable and has to be based on objective evidence , therefore it is not nearly the belief that the people may believe,but such belief has to be based on some evidence.

The final assessment was that the authorities do enjoy detaining vagrants, particularly illegal or unauthorised settlements.The rule is that on the moment of arrest, a person is entitled to be informed in a language he understands, the reason of detention, and, where an interpreter is not immediately available; there is the obligation to provide an interpreter as soon as possible. There is then the 48 hour rule, meaning that a person has to be either charged of a specific offense, or released within 48 hours. There are situations of detention which are not linked to a criminal charge. For example; detention to prevent the spread of a contagious disease or because of a person’s education, and in this case there is the right to a periodic re-preview and, at all times of detention, there is and should be speedy access to a court to review the legality or otherwise of detention.

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Article 6 of the European Convention and Article 39 of the Constitution It is generally referred to as the right to a fair hearing. The first rule is that, in the case of any criminal proceeding, a party has to be afforded a fair hearing within a reasonable time by an independent and impartial tribunal. It means, first of all, that parties shall have full facilities to prepare their defense. This means access to evidence of the prosecution, which means the practice being able to view and get copies of transcripts of evidence. Evidence can be a few pages, or it can be volumes. It also means that a party has the right to challenge, contradict and discredit (to show that the evidence is not credible; the quality of the evidence is not good). The right also extends to a party being able to call witnesses and ring evidence in its own favor. It means the full opportunity to challenge what the other party says and for a party to bring its own witnesses and evidence in support of its case. There is also a growing awareness , both at national and conventional levels that parties cannot be left in an indefinite state of uncertainty. The other requirement refers to a court or a tribunal which is independent and impartial. Independent means that those having the authority to decide (the judges) have an appointment which is fixed. This is what is known as security of tenure. In practical terms, this implies that a judge cannot be dismissed because a judgment is given which may displease an authority. The next requirement is that the court has to be impartial. Impartial means that the court is structurally not connected with any of the parties (a party cannot be the prosecutor or judge of his own case). It also means that those judging have no connection with the parties arguing their case before the court. We commenced our reference to criminal proceedings. This however also applies to civil proceedings, meaning those proceedings which establish rights and obligations of rival parties between themselves. In the first case in criminal proceedings, a party is charged with a criminal offense. In the case of civil proceedings, the subject matter extends to areas such as family law, property and succession rights, commercial disputes such as competition issues, investment and financial services disputes, or intellectual property questions. A person charged with an offense is entitled to be informed in writing and in detail of the charge and to be given full facilities of representation. This means that a party charged with an offense, is entitled to be assisted be a lawyer of his/her choice and confidence and, if unable to afford financially the cost of such representation, then it will be paid for by the state. There are 3 rules: The 1st rule is the presumption of innocence. A party who is charged with a criminal offense is presumed to be innocent until proven guilty. The 2nd rule is that criminal responsibility cannot be retroactive. This means that a person cannot be charged with a criminal offense unless the offense was at the time of the fact. The 3rd rule is that a person cannot stand charges twice for the same offense Page | 6

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To conclude, there are 2 questions that the European Court of Human Rights has, over the years, developed. The first is the Doctrine of Equality of Arms and the 2nd is the rule of access to a court. 1. both parties are on an equal status. 2. It has been deemed by the court as a violation of article 6, the right to a fair hearing.

Prohibition from deportation - Article 42 of the constitution What is deportation? Article 43 of the constitution Deportation means when a person is sent from a country to another country in order to face charges or stand trial in the second country. In other words, a person is sent from country A to country B to face charges in country B. This process is known as extradition. There are a number of important rules which have also been developed by the European court; First of all, extradition is only allowed under the authority and in pursuance of a treaty which provides for such arrangement. A treaty is, at International Law, a contract or agreement between 2 or more states. This treaty provides for the circumstances under which extradition may take place. The European Court of Human Rights has developed the principle that extradition cannot take place where a person can show that, if transferred to the 2nd state, it is unlikely that such person will receive a fair hearing, and there have been instances where extradition or deportation was refused on the basis that the persons face torture if transferred to another state.

Article 44 of the Constitution and Articles 2-4 of the 4th protocol* to the European Convention A protocol is an addition to a treaty or convention. It does not bind the original signatories, but only those who have accepted and ratified the particular protocol. This protocol was also accepted by Malta, and therefore is part of the law. Eu treateries give the rights to citazens of the member sattes to move anywhere freely within the union for the purpose of residing there, establishing themselves and theirfamilies another state within the eu and seeking employmentand offerring services.

Naturally this met with some resistance from some member states. At the basis of this is the angle internal market. States that every citizen of malta is entitled to enter and leave Malta and to reside in any part of malta and also to move within any part of the national territory. There has been an important amendment in the year 2000 allowing for maltese immigrants returned migrants , the possibility of dual citazenship was offered. The 3 Freedoms - Freedom of conscience and worship - Freedom of expression Page | 7

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- Freedom of peaceful assembly and association In the constitution and the convention, these are separated as 3 articles. The 3 freedoms under examination will sometimes overlap. For example; the freedom of conscience and worship does necessarily involve freedom of thought and freedom of expression and it also involves peaceful assembly.

Article 40 of the constitution and article 9 of the European Convention The first article is the freedom of conscience and worship. This is sometimes also referred to, perhaps not entirely correctly, as freedom of religion. Article 9 of the Convention is very clear; everyone has the right to freedom of thought, conscience and religion. This m...