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A constitution is the basic and legal document of a country. Typically it will provide for the form of government
whether it is in the form of a presidential style for example: the United States or France, wether or not a following exists
and very importantly the powers conferd on parliament. Other important matters addressed by a constitution are: who is
entitled to vote, the frequency of elections, how governments are appointed, and public finances and budgets(how taxes
are raised etc).
Our Constitutional system in (Malta) on the so called West Minister Model this is because we have the British model,
meaning a parliament, prim minister and cabinet of misters to lead and help the government, opposition, periodic
elections, a judiciary and public finances.
The constitution of Malta (present) owes its origin to an act of the British parliament in 1964 known as the Malta
Independence Act. Malta was a British colony prior to 1964 and the current constitution was an act of the British
parliament which granted independence by this document to Malta. Has been emended over the years for many many
reasons (example of amendments: local councils, the legal possibility of having double citizenship).
Chapter1: Regulates Matters such as the Maltese language being the national language and the language of the courts.
The Maltese and English language being the language of administration, national territory, the neutrality clause which
means that Malta will pursue and have policy of neutrality and will not host military basis, other expects are national
anthem, religion, most imp the rule the constitution principal, the constitution will be the supreme law of the land. The
constitution is therefore at the same time the most basic and the highest law of the land. It is the most basic because it
defines the political structure and organisation of Malta, it is at the same time the highest law because anything done
which goes against or is in violation of the constitution is null and void for example rent in prime areas being
ridiculously low because of some old war laws. There is a court known as the constitutional court which has the power
to annul laws which go against the constitution or any act of government which is considered by the court to violate the
constitution, this is therefore because the constitution is the highest law example parliament can not decide to have
elections every 15years instead of every 5years.
Chapter2: This was adapted from the constitution of India, when they were writing the Maltese constitution they looked
at the Indian constitution. It is a declaration principles for example that the state shall encourage rival economic
enterprise, will promote minimum working hours, the essential point is that these declaration of principles are not
enforcible in any court. You do not find it easily written in the constitution that there is free health care for all or a
workplace for all.
Chapter3:Relates to the way Citizenship of Malta is acquired, the principle of double citizenship has been accepted in
the constitution.
Chapter4: Relates to fundamental rights and freedoms.
Chapter 5: Relates to the office of the president of the Republic, it states that the president is appointed by a simple
majority in parliament, has to be a citizen of Malta, can not have held the office of judge and holds office for 5years.
Chapter6: Relating to parliament. Basically establishes parliament so it is not a question of choice, it provides who may
vote(18+ resident in Malta for the past 18months), who may not vote. The constitution states that the parliament has to
meet two months after the general election and has a life of five years from the first sitting. The parliament is in tasked
to legislate for the good order of the company in accordance with the constitution and the laws of the European union.
This is because the parliament can legislate only within the four squares of the constitutional document and the EU
laws. Two other important aspects are that parliament has to elect a speaker who presides over the parliament and
deputy speaker who presides in the absence of the speaker. Another important point is the establishment of the electoral
commission who is in charge of council election, national elections etc.
Chapter 7:The executive government. Here we have the rule of the prime minister and the being that the government is
that political party commanding the majority in the house whose leader is the prime minister. Government is carried out
by a cabinet of ministers. The constitution provides for opposition and the leader of opposition. The constitution also
considers the appointment of important functions such as the attorney general who has various functions but the point is
that in the performance of certain duties such as prosecute or not prosecute, who acts independently free from any
government control.
Chapter8: Refers to the judiciary. Juditiary is mendatory, there shall be a judiciary. The constitution therefore provides
for the existence of the courts, and there are at a constitutional level, judges who have to have 12years experience or
magistrates who require 7years experience. Judges are appointed by government and their retirement age is 65 in other
words once appointed judges and magistrates serve until retirement age. Therefore it is not a question of a renewable
contract, there is a constitutionally established retirement age and judges enjoy independence meaning when you say the

independence of the judiciary it means that they are at complete liberty in their judgements and therefore can not be
dismissed simply because they may give unpopular or unexpected judgements of rule. The independence of the juditiary
is a fundamental pillar of the constitution and of what is known as the Rule of Law. The Rule of Law is not ruled by law
because even the worst dictators in history ruled by law as you will understand a law can be an instrument of
profession, the rule of law is a political and legal concept which ensures that nobody is above the law, that in the eyes of
the law all persons have equal standing and therefore a law applies to all with those effected independently of status and
position in a society. The courts are a fundamental pillar because their role is to ensure and keep in check that the law is
applied to all, and that nobody is above the law. The chapter on the judiciary also provides for a commission for the
administration of justice which is as various functions but is also a watch dog on the process of the courts without
interfering with the independence of the courts. Judges and magistrates can be removed by a procedure known as
impeachment which requires proof and established in capacity becoming incapable like a mental illness or
misbehaviour.
Chapter9: Public Finance. This authorises and establishes the procedure for taxation and there is an old principal that
there is no taxation without representation in other words taxes have to be directly or indirectly. The constitution gives
the power to parliament and the executive to raise taxes and establishes what is known as the consolidated fund, which
is the public fund by default, of course there are many elocations and specialised and particular accounts, ultimately
everything has to link with this consolidated fund. The chapter on finance deals with the auditor general and the deputy
auditor general. The auditor general has the function to regularly and on an ongoing basis audit public money and
reports to parliament. The auditor general is appointed for a fixed period of time and maybe re-appointed, but during the
period of office the auditor general enjoys the same independence as the judiciary(the courts).
Chapter 10: The next chapters relate to the public service and the local councils. The existence of the local councils is
acknowledged and provided in the constitution. There is not so much detail and we find the detail in the local councils
act. The public service is those who are engaged by government, this has a long history and the rule is that public
servants are engaged, disciplined and dismissed by a commission known as the public service commission. The
discretion of the public service commission can not be challenged or enquired into by any court. This means that it is
possible to challenge the public service commission for acting beyond its powers. To conclude there are 2 authorities
the first is the broadcasting authority and the other is known as the employment commission. The function of the
broadcasting authority is again a watch dog to ensure that reasonable air time in television and radio is granted to
parties, movements, NGO'S etc wishing to have air time, also the broadcasting authority can ensure that no serious
interpretation is made in current affairs. The broadcasting authority also licenses radio and television.
The employment commission, its function as originally designed was to ensure that there is no political discrimination
on the workplace, that people are not treated differently either in favour or against by virtue of holding a particular
political group.

General protection of human rights in Malta at a domestic and International level

1. The traditional civil and political rights(freedom of expression ex.)
2.Social rights (ex. Right to welfare, education, employment)
3. Future Generation rights (Environment, cultural heritage, urban planning, eco diversity etc)
In general terms it is only the first generation which has acquired a significant level of legal
enforcement.
The point of the first generation rights refers to an effective machinery of legal enforcement. The
truth is that while it would be optimal for ex second generation rights to be enforced it may not
always be feasible and possible to guarantee this by means of a legal obligation from the state, it
would be great if employment where to be a fundamental human right with the consequence that an
unemployed person could have a remedy against the state but of course desirable that this may be at
least at the current state of development it is not feasible although it is obviously a political
desideratum(something that is needed or wanted) like for example universal free health care. As up
today what is guaranteed and enforceable are the first generation rights, which speaking generally
include the rights of a fair hearing, certain minimum rights relating to arrest and detention, the
prohibition of torture in human and degrading treatments and also the death penalty. There is then
an important provision regarding the protection from the compulsory taking of possession of a
persons property and the right of peaceful enjoyment of possessions. There are the right of freedom
of expression, freedom of conscience and religion and the right to peaceful assembly and
association. There is the prohibition against discriminatory treatment on certain grounds, protection
against the illegal expulsion of persons and the right to an affective remedy for human rights.

There are 3 levels of protection in the Maltese law:

1. The constitution of Malta (Chapter4)
2. The European Convention on human rights and fundamental freedoms
3. Chapter 319 of the laws of Malta
There was a 1961 constitution which also embodied a human rights chapter, the current version is
the 1964 (Chapter4).
European Convention of Human Rights (ECHR)
www.echr.coe.int
Signed in rome in the 1950s and is a convention which operates under the council of Europe.
After2nd world war there was a resolve to avoid the inhumanitys which happened in the war, this
was set up to promote democracy, human rights, and the rule of law. There are today some 48
members of this Council of Europe who are also signatories to the European convention this include
Russia, Moldova, Montenegro, Bosnia and the 28 members of the European union.
There exists a European court of human rights whos seat is in Strasbourg France and this European
court of human rights has the power and competence to consider complaint and givionses on human
rights brought both by an individual member state against another state, but perhaps more
importantly there exists the right of individual petition, this means that an individual citizen, a
company, a foundation has the right to bring its case to the European board when all domestic
remedies have been exhausted. The effect of the judgement in the court of human rights is that it
can be enforced locally.
The European convention is a European treaty whereby the subscribing parties guarantee to those
present in their territory (not necessary citizens) of the fundamental rights protected by the
convention. Other protocols established are the right of conversation, if you are wrongfully arrested
of detained or convicted, the right not to be tried twice for a criminal offence, there are two
protocols on the death penalties the prohibition of the death penalty instead of the time of war and
the prohibition of the death penalty in all circumstances. It is very important to distinguish the
Council of Europe from the European Union (EU). All the 28 member of the EU are all member of
the council of Europe and the European union has a court, the court of justice which is a very
distinct body from ECHR. The court of justice is concerned with the law of the European union, the
philosophy behind the EU of the movement of persons and commodities. There is a charter of
human rights for the EU. This chapter has not as yet the specific finding machinery of the European
convention but it is an instrument which is binding on the union and indirectly therefore on its
citizens for example it protects the right to subsidiarity that means that as far as possible decisions
are taken by those directly involved, the European council is not the Council of Europe.
The third level of protection is chapter 319 of the laws of Malta, this is a law that incorporated at
domestic level. This is a law which incorporates at domestic level as part of the law of Malta. It is
an act passed in 1987 and incorporates some European laws. There are 2 rules:
-The convention is part of domestic law> the European convention is not only part of Malta's
international obligations but also part of Maltese law. This provisions of conversion and
incorporated which means that when a citizen brings an action on human rights, the citizen is
invoking nor nearly constitution but also the convention of local law.
-There is a chapter that provides for enforcement of judgements of the European court. The majority
of cases that the Maltese have taken to European court are property confiscation known as
expropriation or claims of unfair rent.

Relevant articles of the Constitution and the European Convention

Article 32 of the constitution: This is a preamble which states that every person in Malta is entitles
to the following fundamental rights and they are not go into the detail of protection. It is a general
statement of the level of protection. The rights protected are the first generation rights and refer
principally to the traditional civil and political rights, so this preandim states that every person in
Malta is entitled to protection of the following rights: life liberty and security of the person,
enjoyment of property, and the protection of the law, the three freedoms that are consionce,
expression and peaceful assembly and association and respect for private and family life. These
rights are to be secured to any person in Malta regardless of: race, place of origin, political opinion,
colour, sex, breed, sexual orientation. This entitlement are subject to 2 important limitations, rights
and freedoms of others and public interest. Rights and freedom of others acknowledge that others of
the community have an equally and corresponding right and entitlement for protection of this right,
therefore the exercise of the right has to be kept within the limits of the corresponding exercise by
the other members of the community. There are instances where the public interest may limit or
perhaps override the exercise or uncontrolled exercise of any right.
There is a corresponding obligation at article 1 of the convention whereby all the parties have
subscribed to secure the enjoyment within the rights of the convention, it is important to bare in
mind that a right is never absolute. A right is always subject to limitations and there is the proper
exercise of a right and the abuse of a right. The abuse of a right is when a right is exercised not for
its proper legitimate purpose but for something else example, governments have the right to
determine expropriate property of private individuals in the public interest of a school, hospital etc.
Article 33 of the Constitution corresponding of article 2 of the convention: The Protection to the
right of life.
The original 1950 text (the original convention) stated that there is right to life and entitlement to
protection of ones life, the convention also protects that there shall be no intentional the probation
of taking of a life except where there is a law which provides for such an execution(capital
punishment) and subsequently there is a conviction for a criminal offence (There must be a law and
conviction in a court for a criminal offence)
The sixth protocol of the convention there is an absolute prohibition of the death penalty except for
offences in times of war or apprehended war. There are situations particularly in control of violence
and force where life can be lost for example self defence, mob control where it gets violent, the
question therefore is do we have here a violation on the right to life?
There are 4 exceptions, that it is acknowledged in certain situations to control riot, mob violence.
The reaction has to be necessary and the rule of proportionality. Therefore subject to these rules, the
convention and the constitution lay down the following rules in which if there is a loss of life, there
is no violation of the production to the right to life.
No violation, where life is lost, for the defence of a person from violence or to protect property.
The second is for the purpose of the authorities of sub-pressing a riot or insurrections.
Where there is loss of life to prevent a commission of a crime or to effect a lawful arrest or to
prevent the illegal escape from lawful custody.
Articles 35 and 36 which correspond to articles 3 and 4 of the convention, article 3 of the
convention prohibits inhuman or degrading treatment, this was written after the (atrocities of the
2nd world war). For specific freferece to treatment during detention example you cant deprive
sleeping or putting a lot of light in ones eye. Also it has been applied in the case of punishment has
to show minimum of human respect. Therefore even when punishments are designed, there are
limits. Also this regroups and underlines a very important principle that there can not be collective
punishment. Guilt responsibility punishment is specific to each person, each person is entitled to the
right to be judged according to personal responsibilities.

Article 4 of the convention and article 35 of the constitution, they are not identical because the
convention speaks that nobody should be held in slavery. The constitution being a more reasoned
speaks that nobody should be required to perform forces labour. It is the application against the rule
of forced labour is in general terms is easy and straight forward to understand however it is more
the exceptions that in practice create difficulty.
What is about the essential services if for ex. Medical services has to provide emergency treatment
regardless, is this forced labour? What about basic services of the society ex. Civil protection,
police etc. does the effect of a law or a policy requires that these has to be maintained at all times
constitute a violation of this right against forced labour.
There is a number of exceptions: Work imposed during the ordinary course of detention there is
nothing in principle prohibiting by the convention or constitution which prohibits that those serving
time have to perform work or even when they are released on parole.
Another important exercise is military service or work to begun by contentious objections. This is
not a violation of the right to forced labour. Another important is where in the interests of the
personal care of a person, treatment such as medical and hygienic, here no one can claim or argue
that it is a forced labour.
The most controversial article is where work is imposed on a section of the community either in the
public interest or during a period of public emergency or calamity. The second part is easier to
understand if there is for ex. Flood, it is clear that the prohibition can see limitations. The more
controversial is where the public interest or the benefit of the community is imposed outside the
concept of an emergency or a calamity. The question always remains controversial, the inclination
of the European court in the case of clear defining services such as relieving medical emergency,
public order, civil protection it is legitimate and not forced labours to expect that these essential
services in the interests of the community are to be maintained. The focus is on the interest of the
community, the position of duties can be reasonably and objectively justified and can not go beyond
the requirements of the community. When therefore this becomes excessive of disproportional than
it would violate.
Freedom and Protection from arbitrary arrest and detention (Article 34 of the constitution and
Article 5 of the convention
Can a person be arrested in jail and detained and deprived from personal liberty?
Here we are looking at the validity and legality of arrest and detention.
The general principle on presumption is that a person is free and should be free from arrest and
detention.
The presumption and the general rule is that a citizen a person is entitled to personal liberty and
freedom and it is the exception and not the rule which allows a person to be arrested and detained.
So most of the points we shall refer to are the exceptional.
The first and the most obvious is where there is a judgement of a competent court whether it is a
Maltese court or a foreign court in respect of a conviction for a criminal offence and if this
conviction imposes detention for example a period in jail, this is a perfectly legitimate restriction on
the right to personal liberty.
Another exception is where a person is unfit to plead to a criminal charge, this means that a person
is considered not to have been of sound mind at the time the offence was committed and because of
this a person can not be held to be criminally responsible but it does not mean that a person will
escape detention because often the courts place such persons in some mental asylum. The courts
have generally the power to order the arrest and detention for the purpose of ensuring compliance
and obedience to a court order. If you disobey a court order the sanction can be arrest, detention
either as a punishment or until a person decides to obey such court order.

An alternate scenario sometimes the court orders the arrest and detention of a person for the purpose
of ensuring the appearance and attendance of such person before the court. The courts have the
power to detain and arrest a person depriving such person of personal liberty either in awarding
punishment for a criminal conviction or to ensure compliance with court orders, or to ensure that a
person does appear before a court.
There is than another situation where the arrest or detention is justified and this time it is not
necessarily by court order but it could be an executive not a judicial authority such as the police and
therefore the question is what are the powers of the police to arrest and detain a citizen?
In general term on 1 of 2 grounds the first is when they have a reasonable suspicion that you have
committed or you are about to commit a criminal offence, in other words the action of the police
based on suspicion has to have grounds which are reasonable, it should not be a fantasy or a
possibility simply entertained of considered by a police official, the legality of the arrest can be
challenged on the basis that there existed no objective evidentially to lead to a reasonable
conclusion that has committed or is about to commit a criminal offence. Detention is also justified
on the basis that the person is about to flee and therefore can not be than found to answer to
charges.
The competent authorities (normally the police) may detain a person under the 18years of age for
the purpose of such persons education, in other words where minors (under18) are kept in an
educational institution with the consequence that their rights to roam etc. is limited, this is justified
if it is done for the purpose of education and formation of such person.
There are other ground which justify detention for example where people are kept apart and not
allowed to go freely to prevent the spread of contagious diseases. Likewise the detention of persons
who are reasonably suspected to be either addicted to drugs or alcohol or a treat to the community
may be detained for their own treatment and the protection of the community.
A more controversial issue is the treatment of vagrants (tramps), [have no residence]. There were
many early cases in the 60's of the legality of the detention or other wise of these vagrants, the court
only justified their detention if they are a treat to people.
Does a person who is arrested or detained have any rights? Yes a person has such rights.
The authorities have to inform the arrested person in a language that such person understands it has
to be translated as soon as reasonably practicable, the person have to know the reason of the arrest.
There is one phone call to a lawyer of your choice, and there is also talk that an interrogation in
police custody has to be in a presence of a lawyer of choice. Can a person be held in
incommunicado meaning that a person is held without any communication to friends, family and
lawyer. The answer is No. There is the 48hour rule which is the person detained has to be within
48hours either charged with a criminal offence and therefore at the moment of accusing the person
than the rights of the person charged come into play or within this 48hour window he is released. It
has to be an effective release there where times when a person walked out of the police headquarters
and was picked up again two streets away, the courts say that release is release. Today there is also
the concept of police bail. This means that you are not arrested but a person who is being
investigated gives an undertaking to the police that he goes to them and cooperates accordingly.
There are 2 final points, the first is that where it is established that there has been wrongful arrest or
detention there is a right to compensation and this point is further developed by the seventh protocol
to the convention. The final point is that the right to freedom and the personal liberty may be
temporarily suspended not on a mass community level but in respect of specific individuals during a
period of public emergency. This power of the authorities is not uncontrolled but it is subject to
periodic review by an independent judicial authority.
The Requirement of a fair Hearing (Found in article 6 of the convention and 39 of the constitution)
The context is court procedure so it is not the scenario of being investigated it is the scenario where
a court procedure has commenced, it could be criminal or civil.
In short these articles provide for the minimum guarantees in court proceeding, meaning that if a
party can show that a court hearing/proceeding fell short of these minimum standards than there is a

remedy under the constitution and the convention, this can be either that the proceedings
complained of are set aside and annulled and the procedure is done afresh or the court can grant a
remedy.
A person charged with a criminal offence is entitled to a fair hearing within a reasonable time by an
independent and impartial tribunal established by law.