Constitutional Law - Main Notes

Constitutional Law - Important Conventions
The working definition of a convention is termed as: rules of political practice which are regarded as binding by those to whom they apply, but which are not enforceable by the courts since they are not laws. Conventions are essential for the proper functioning of the Constitution, and they are a means to bringing about Constitutional development without formal changes in law. A convention arises only when its content is accepted as a binding rule b for example members of the legislature, the Cabinet, to whom they apply. Conventions must be distinguished from mere practices or usages which are only adopted out of habit. Dicey, affirms that conventions are habits, understandings or practices, which though they may regulate the conduct of officials are not in reality laws, as they are not enforced by the courts. Conventions are usually written, especially in the UK where the Constitution is unwritten. In Malta conventions are written down in the Constitution but they still retain their conventional characteristic. A prime example of a convention is that regarding the assent which the Monarch in the UK is to give to bills passed by the Lords and the Commons. Any bill, which does not have the three assents, will not be considered as law. Conventionally speaking the Monarch has to give her assent to the bills passed by the Lords and the Commons and is constitutionally unthinkable for her to refuse the assent. This has been practice for almost three hundred years, from when Queen Anna refused her assent to the Scottish Militia Bill. Nowadays, the Monarchs right which she had in former times to give or not to give her assent, has been abandoned. Thus changes occur through conventions without essentially formally changing the law. The Monarchs decision, not to give her assent could result in a revolutionary situation. Recently the King of Belgium, being a devout Catholic, felt he could not assent a bill with regards a legislation of abortion. As the King did not want to go against the public popularity, he abdicated for a temporary period of time. A regent was instituted in his place, who gave the assent to the bill, thus becoming law. The King was then re-instated. Similarly the Maltese Constitution expressly lies down that the President must give his assent without delay; Section 72 (1) The Power of parliament to make laws shall be exercised by bills passed by the House of Representatives and assent to by the President. (2) When a bill is presented to the President for assent, he shall without delay signify that he assents. There is no single authoritative way of recognizing and interpreting a convention, but it is the behaviour of the politicians and those who are involved in the workings of the Constitution that
Constitutional Law - Important

are the main guide. Sir Ivor Jennings proposed two requirements for the creation and recognition of a valid convention: - Those who operate the Constitution accept the convention as binding - There must be a good political reason for the convention. Section 81 of our Constitution provides power to the President to dissolve parliament, in cases where the Government receives a vote of no confidence and the Prime Minister fails to dissolve parliament himself within three days. In 1998, the Government of Malta lost the support of the House, through a vote of the majority of no confidence. But there is a doubt if this majority exists because if one counts the speaker, there would be a 33 against a 32 vote. However, although it is not a proper majority, the convention of the Prime Minister and his party being defeated, is a convention which is upheld. Therefore, the Prime Minister is to resign if he is defeated in Parliament by a vote of no confidence. Although such rule is written down in the Constitution, on examining it, it is clear that it is not a law. If the Prime Minister fails to resign, the constitutional legal rule comes into work since after three days, the President is given power by the Constitution to dissolve Parliament. Hence the problem is not solved through a court of law, but through a system provided for in the Constitution, clearly indicating that although the rule is written, it still retains its conventional characteristics. Therefore certain norms written in the Constitution are not laws, but simply political usages, which have been written down in the document. An example is the elections of the President in the USA. Legally the President in the USA is elected by the electoral collage, but conventionally he is elected by the people as the electors are bound by convention to vote for the candidate they represent. The principle of collective Cabinet and individual ministerial responsibility is also regarded as constitutional convention. A Minister who does who does not support government policy resigns. Also the Minister has an obligation to provide accurate and truthful information, regarding administration of his ministry. However, whether the convention that a Minister should resign if he had been personally at a fault, or his department has been guilty of serious maladministration, is a matter of debate today. Conventions in public and international law are also called treaties. An example of this is the European Convention on Human Rights, which is an international treaty and not a constitutional convention. The main characteristic that distinguishes between conventions and laws is the way they are enforced. Despite the fact that a convention is not enforced in a court of law, it does not mean that it is not binding. Usually, conventions may be more fundamental for the Government in the state than mere laws. The conventions in our Constitution as well as in the UK, are so determining in the constitutional framework that they do not allow us to forget the importance of political usages. Trying to describe the Constitution without making reference to the conventions, would mean leaving out the main factors that enable the Government to function.
The Rule of Law

If the content of law is to protect the individual, while affording adequate power to the government, than the country is governed by the Rule of Law. If the law gives unlimited power to the ruler to entrench himself in pore power, than the rule of Law does not rule. Therefore, although it is universally held that every state is based on some form of law, not every state observes the Rule of Law. One of the most influential versions of the Rule of Law can be attributed to Dicey in 1885, which developed a three-fold doctrine. The principle was that a state was a creation of the law and as such is subject to the law: 1. Everybody is subject to the law There should be no arbitrary power and that no man may be punished, but for a breach of the law. 2. Equality before the law All the persons are subject to the same law, administered by the ordinary courts. 3. British Constitution is a result of ordinary law. Hence, the general principles, especially the liberties of the individual are the result of judicial decisions in concrete cases brought before the courts. Dicey argued that the important was the concrete action by the courts which safeguards the rights of the individuals. He further argued the fact that since the United Kingdom Constitution derived from the application of the common law of those rights; the individuals rights, thus were fully safeguarded. The modern application of the Rule of Law has developed, forming a matured philosophy and a doctrine of Human Rights. It can be equated with the notions of Constitutional government, which observes the Fundamental Human Rights through an independent and impartial judiciary. Defined in this manner, it is very clear that the Rule of Law is deeply imbedded in our constitutional system. Firstly Malta has a limited government. Article 6 of our Constitution clearly states: if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law, to the extent of the inconsistency be void Therefore acts of Parliament are limited and controlled to the extent that they must be in conformity with the Constitution, clearly showing the supremacy of our Constitution, also showing that no man is above the law. A distinction must be drawn between arbitrary power and discretional authority. The House of Representatives cannot in a practical way cater for all the rules and laws that a country

needs in order to function. Hence discretional power is delegated to the Minister or certain authorities to legislate on its behalf (delegated legislation). However, for these powers to be granted, they must be justified and subject to legal limitations. With regards to equality before the law, there are instances where Ministers and other public officers, may have powers that the ordinary person in his function does not. Also the law provides instances where subjects may be exempt from any liabilities as in the case of minors. However, the principle behind Diceys theory was that no one should be exempt from the laws which apply to ones behaviour purely on the basis of who the person is. Today the Rule of Law has assumed both a political and doctrinal dimension. The New Dehli Conference in 1959 provided a modern interpretation of what is meant by the Rule of Law. i. Its basic criteria were, that government in accordance with the law, should be democratically elected through institutions and procedures laid down in the Constitution. Also for laws to be changed, the criteria and rules are to be clearly established in the Constitution. Furthermore there must be an independent and impartial judiciary, which is an indispensable requisite for a free society under the Rule of Law. This independent judiciary has to be able to enforce the Fundamental Human Rights of the individual. These rights must be within a situation where they are in some manner entrenched and protected.
ii. iii.
The International Congress of Jurists in the New Dehli of 1959 stated that in no event shall Fundamental Human Rights be abrogated by means of a delegated legislation. To have the Rule of Law fully applied within a state, there must be one organ of the state, which is able to limit parliament where it offends the Fundamental Human Rights. In a broad sense, a country is said to be governed by the Rule of Law, not because of its Parliamentary system, but because the Fundamental Human Rights are respected with it. Section 96 and 97 of the Constitution of Malta state the manner how judges are appointed and their tenure in office indicating their independence from the executive and legislature; 96 (1)The judges of the Superior Courts shall be appointed by the President acting in accordance with the advice of the Prime Minister 97 (1)subject to the provisions of this article, a judge of the Superior Court shall vacate his office when he attains the age of sixty-five years. (2) A judge of the Superior Court shall not be removed from his office except by the President upon address by the House of Representatives supported by votes of not less than two-thirds of all members thereof and praying for such removal on the ground of proved inability to perform the functions of his office (whether arising firm infirmity of body or mind or any other cause) or proved misbehaviour. Although appointed by the President on advice of the Prime Minister, article 97 states:

97. (2) A judge of the Superior Courts shall not be removed from his office except by the President upon an address by the House of Representatives supported by the votes of not less that two-thirds of all members thereof and praying for such removal on the ground of proved inability to perform the functions of his office or proved misbehaviour. Furthermore the fact that a Magistrate/Judges salary is charged to the Consolidation Fund shows the independence from any motion in the House to threaten the Judge/Magistrate. Section 107 (2) states: (2) The salaries and allowances payable to the holders of the offices to which this article applies shall be charged on the Consolidation Fund. Also before the House of Representatives can in fact discuss the possibility to remove a judge from his office, at least a prima face case of misbehaviour has to transpire from investigations carried out by the Commission of administration of Justice. 101A. (1) There shall be a Commission for the Administration of Justice which shall consist of the President, who shall be the chairman and nine other members Another feature of the Rule of Law in the Constitution is the Constitutional Court. The judiciary is one of the guardians of the Constitution, as parliament enacts laws, but if these are inconsistent with the Constitution they are declared null and void (Art 6). Also to avoid the circumstances leading to the controversary of 1974, Article 95 (5) states that if a vacancy arises from the judges presiding the Constitutional Court, and the Government fails to appoint a new judge in fifteen days, than automatically and solely by authority of the Constitution, the senior judge will declare himself to be a member of the Constitutional Court. Therefore, even though laws are enacted by Parliament, it is the courts that are to apply and enforce the laws. The modern understanding of the Rule of Law implies a Constitutional situation where there is an ordinary democratic policy for the enactment of laws, and a Constitutional setup to ensure the independence of the courts in their judgement and to see that the Fundamental Human Rights of a modern democratic society are applied.
Separation of Powers
The Maltese constitution is essentially derived and based upon the principles of the British Constitution, although differently from it, the Maltese Constitution is rigid, written and supreme. In fact section 6 states 6. Subject to the provisions of sub-articles (7( and (9) of article 47 and article 66 of this Constitution, if any other law is inconsistent with this Constitution, this

Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. On the contrary, the British Constitution is flexible and unwritten and besides the British parliament is sovereign, not the Constitution. Both the Maltese and British Constitutions are referred to as a unitary Constitution, where all powers are exercised or derived from a central parliament. Also in both Constitutions, it can be said that there is a break down of the traditional notion of the separation of powers. Our Constitution divides the functions of the legislative, executive and judiciary into three chapters. However, the relationship between the executive and legislative can be said to be fused, giving rise to what is known as a Parliamentary Democratic Government. The basis of this system is that there is a body elected by the people, and it is from this body that the executive is drawn. As a result, the executive is responsible to parliament.
The executive and legislature Chapter 78 states: (1) The executive of Malta shall be vested in the President Besides, the President also forms part of Parliament: 51 There shall be a Parliament of Malta which shall consist of the President and a House of Representatives.
Hence, the President is a link between the legislative and the executive. In fact a resolution of the House of Representatives does not become an act of Parliament if not assented to by the President. 72(1) The powers of Parliament to make laws shall be exercised by bills passed by the House of Representatives and assented to by the President. However, the President is bound to assent to the bill presented to him whether he agrees or not: 72(2) When a bill is presented to the President for assent, he shall without delay signify that he assents. The Monarch in the United Kingdom is also a member of both the executive and Parliament. Like the President in Malta, is referred to as figure head of the state as they largely act on the advice of the Prime Minister. Also the President has the power to appoint the Prime Minister for office as conferred upon him: 80 in his judgment, is best able to command the support of a majority of the members of the House. Thus, the Presidents choice is actually an obvious one where there is a stable bi-party with a clear leadership. In a multi-party system like the Italians had pre 1990, the choice may not

have been so clear. In case of a coalition, the President would be Constitutionally obliged to appoint as Prime Minister, the leader of leading party forming the coalition, but this does not necessary mean that the party in question is in fact the party that received the majority of votes in the elections. However, the notion of the office of the Prime Minister in a Parliamentary Government is that he is chosen from the members of Parliament and enjoys the confidence of the majority of the House. The Prime Minister together with the Ministers appointed by the President on the Prime Ministers advice form the cabinet, which is collectively responsible to Parliament for the governing and administration of the affairs of the country. 79(1) There shall be a Cabinet of Malta which shall consist of the Prime Minister and such number of other Ministers as may be appointed in accordance with article 80 of this Constitution. The Cabinet must retain the confidence of the House for its existence. In fact a Parliamentary Government is referred to as a removable government. Section 76 (5(a)) gives power to the President to dissolve Parliament in a case where the Government receives a vote of no confidence and the Prime Minster fails to resign or advised a dissolution of Parliament within three days from that vote. Besides, the Prime Minister expresses in his office the concept of collective ministerial responsibility, meaning that the whole of the cabinet is answerable for the running of government through the person and office of the Prime minister. Through section 76 (5(c)) the Constitution gives power to the President to refuse the dissolution of Parliament advised by the Prime Minister after a vote of no confidence on the basis that he would believe that it is not in the best interest of Malta to dissolve Parliament and hold a general election. In 1998, the Prime Minister at the time lost the majority of the House, through a vote of no confidence and consequently called an election and advised a dissolution of Parliament. In different circumstances, in the United Kingdom, in the 1990s, Prime Minister Margaret Thatcher was declining popularity with the people and also within her own party. To avoid receiving a vote of no confidence, she presented to the Queen her resignation and advised to appoint John Major as the next Prime Minister. The Judiciary Section 96 and 97 of the Constitution of Malta state the manner how judges are appointed and their tenure in office indicating their independence from the executive and legislature; 96 (1)The judges of the Superior Courts shall be appointed by the President acting in accordance with the advice of the Prime Minister 97 (1)subject to the provisions of this article, a judge of the Superior Court shall vacate his office when he attains the age of sixty-five years. (2) A judge of the Superior Court shall not be removed from his office except by the President upon address by the House of Representatives supported by votes of not less

than two-thirds of all members thereof and praying for such removal on the ground of proved inability to perform the functions of his office (whether arising firm infirmity of body or mind or any other cause) or proved misbehaviour. Although appointed by the President on advice of the Prime Minister, they keep office till sixty-five years of age or else are removed by two thirds majority of Parliament on proven misbehaviour or on proven inability to perform their duties or functions of their office. These provisions secure the impartiality and independence of the judiciary (and A.G.). Furthermore the fact that a Magistrate/Judges salary is charged to the Consolidation Fund shows the independence from any motion in the House to threaten the Judge/Magistrate. Section 107 (2) states: (2) The salaries and allowances payable to the holders of the offices to which this article applies shall be charged on the Consolidation Fund. Also before the House of Representatives can in fact discuss the possibility to remove a judge from his office, at least a prima face case of misbehaviour has to transpire from investigations carried out by the Commission of administration of Justice. 101A. (1) There shall be a Commission for the Administration of Justice which shall consist of the President, who shall be the chairman and nine other members Conclusion In a parliamentary system, although the legislature and the executive may be closely inter-related and the Ministers are members of both, the 2 institutions have distinct different functions as the legal order effect of an Act of Parliament differ from the effect of an executive decision.
Parliamentary Supremacy
The doctrine of Parliamentary Supremacy is a legal doctrine concerning the relationship between parliament as a lawmaker and the courts. The supremacy of parliament is fundamentally a British doctrine that does not necessarily apply to its full extent in Malta. Parliament supremacy in the UK came about with the glorious revolution of 1688, between the Monarch and Parliament, with the result that the supreme legislative authority became vested in parliament. Perhaps the most important characteristic of the British constitution is the legislative supremacy of parliament. Dicey following the ideas of Hobbes in the 17th century and Blackstone in the 19th century supported the need for a single authority as a sovereign lawmaker whose will is absolute and thus once a document is recognized as being an Act of Parliament, no British court or other authority can refuse to obey or question its validity. Moreover, there are no fundamental laws that parliament cannot amend or repeal in the same way as ordinary legislation.

Therefore in the UK, the courts have no power to hold legislation as unconstitutional yet there also exists the assumption that parliament always intends to conform to the rule of law as a constitutional principle and respects the constitutional rights of the individual to enjoy equality under the law. The notion of parliamentary supremacy implies 3 things: i. ii. iii. That there is only one organ which makes laws i.e. parliament. Any other lawmaking bodies are delegated their legislative power from parliament itself to pass laws solely within their jurisdiction. No court has the authority to declare an Act of Parliament as null and void.
On the other hand, Malta is a unitary state with a supreme parliament, yet this exists within a more Supreme Constitution. This is the basis of our constitutional system. The implications of parliamentary supremacy have to an extent been carried over from the British system into the Maltese constitutional framework, namely that parliament is the ultimate legislative authority. The most important function of parliament is to enact laws for the peace, order and good government of Malta. However, in contrast to that of the UK, in the Maltese constitutional system, there exists the notion of judicial review. Although our parliament has the ultimate authority to legislate, yet the authority to enact laws is restricted in the sense that any legislation enacted, if it is in violation of the constitution, shall stand null and void. This was referred to in the case of Mintoff vs. Borg Olivier 1977 in which Mintoff claimed that the right procedure had not been followed in parliament in order to bring about a constitutional amendment. Olivier held that the court could not interfere because parliament was supreme. However, the constitutional court held that although parliament is supreme, it is only so within a more supreme constitution. Therefore, the courts are entitled to enquire whether parliament had followed the necessary and correct procedure to effect that amendment. Therefore parliament is supreme but is subject to a higher authority. The courts, by reviewing the acts of parliament, result in a situation whereby the judicial function of the courts defines the limits of the legislative authority of parliament. This is part of the constitutional arrangement in order to ensure the correct application of the constitution: its values and principles. In addition, the notion of judicial review reinforces the supremacy of the Maltese Constitution which is referred to in section 6: 6. Subject to the provisions of sub-articles (7) and (9) of article 47 and of article 66 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. In fact, the American Supreme court in the case Marbury vs. Madison, Chief Justice Marshall said that if a Constitution claims, by its terms, to limit the powers of the institutions it creates, including the legislature, its provisions must surely be regarded as of superior force.

A significant difference of our Constitution to the UK is the fact that the whole of the Maltese Constitution is entrenched. Article 66 of the Constitution regulates the manner in which the constitution can be amended and it cannot be done in the same manner as ordinary legislation. 66. 2 (c) a bill for an Act of Parliament under this article shall not be passed in the House of Representatives unless at the final voting thereon in that House it is supported by the votes of not less than two-thirds of all the members of the House. Sub-article 5 further states: (5) In so far as it alters any of the provisions of this Constitution other than those specified in sub-articles (2) and (3) of this article, a bill for an Act of Parliament under this article shall not be passed in the House of Representatives unless at the final voting thereon in that House it is supported by the votes of a majority of all the members of the House. Ultimately, it is only parliament who is competent to legislate on amendments of the constitution accept in the case when altering the life span of parliament were a referendum is also required. Hence the strictures are on the manner in which amendments are brought about, not on parliaments jurisdictional ability. The constitution provides for the necessary manner in which constitutional amendments are regulated and section 66 lays down the majorities required, depending on the level of entrenchment of the particular provision. The 3 levels of entrenchment found in our constitution are: i. ii. iii. Absolute i.e. 50% of all elected members of the House. 2/3 majority 2/3 majority + referendum
Pre 1974, section 6 was entrenched at the level of absolute majority of all elected members of the House. An argument arose between Government and Opposition, as whilst Government stated that since article 6 was not mentioned in article 66 of our constitution, thus it could be amended by an absolute majority. On the other hand, Opposition made reference to the American case Marbury vs. Madison. However, due to the fact that at the time the Constitutional Court could not function due to the fact that it had one of the presiding judges missing, section 6 was amended by an absolute majority. Act 57 of 1974 temporarily suspended article 6 making parliament more supreme for a limited time while the legislation put forward by the government was enacted by parliament. Once the particular bills became law, through Act 58 of 1974, article 6 was re-entrenched but at a higher level as in fact it now requires a 2/3 majority of the House. Thus in Malta parliament is supreme but exists within a more supreme constitution. Although parliament is the only legislative organ of the island, our courts have the power to challenge those laws enacted by parliament which are unconstitutional.
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Constitutional Law - Important The President

Section 48 of the Constitution of Malta states: 48. (1) There shall be a President of Malta who shall be appointed by Resolution of the House of Representatives Second schedule Oaths of office. - Oath for the due execution of the office of President. A) I......... Solemnly swear/affirm that i will faithfully execute the office of President (Perform the functions of the President) of Malta, and will, to the best of my ability preseve, protect and defend the constitution of Malta. So Help Me God. The President figuratively is not only the Head of State but he also holds the power of executive in the sense that the cabinet governs in the name of the President. Historically speaking the President of Malta has inherited the position that was formally occupied by the Governor General as in fact he holds the same functions of office and enjoys the same powers. After 1962, the Governor General in Malta became purely the representative of the British Monorch, as he could only work on instructions given by the Queen or the Prime Minister. The post inherted was a mere representitive one and this is why the post of the President in Malta remains a figurative one. The Presidents Powers Partain to the 3 organs of the state: i) The Legislative ii) The executive iii) The Judiciary The Legislative Function; The President as Head of State is part and parcel of Parliament. In fact section 51 of the constitution clearly states; There shall be a Parliament of Malta which shall consist of the president and a House of Representatives. In fact a resolution of the house of Representatives does not become an act of Parliament until assented by the President. Section 72 (1) of the Constitution states; The powers of Parliamnet to make laws shall be exercised by bills Passed by the House of Representatives and assented to by the President. However, the President is bound to assent to that bill presented and without delay, 72 (2) When a bill is presented to the President for assent, he shall without delay signify that he assents.
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Therefore, constitutionally speaking, once the speaker sends a bill over to the President, he must assent to it whether he likes it or not. However, if the President has strong feelings against a bill, he can either: i) Resign from his office and allow the House of Representatives to appoint someone else to assent the legislation. ii) Allow an acting President to be appointed for a certain period of time to give the assent. The latter occured in the case of the King of Belgium, who due to the fact that he was a practising Catholic did not want to assent to the legislation of abortion. The Belgian Parliament appointed an acting representative to sign the bill in the place of the King.This norm is not written in the Constitution and therefore not enforcable in a court of law, but is dealt with by the House of Representatives. The Executive Function The President is also the Head of the Executive; Section 78. (1)The executive authority of Malta is vested in the President. (2) The executive authority of Malta shall be exercised by the President, either directly or through officers subordinate to him, in accordance with the provisions of the Constitution. The President normally exercised his authority through the Prime Minister and his Cabinet for the running of the government to the House of Representatives. In fact the President rarely exercises his functions in person. Section 85 (2) 2) Where by this constitution the President is required to act in accordance with the advice of any person or authority, the question whether he has in any case received or acted in accordance with, such advice shall not be enquired into in any court. Hence, therefore the nature of the rules governing presidential action is a matter of convention and not of strict Law. Furthermore it is clear that the Constitution is contemplating a Prime-Ministerial sort of government and that ultimately the President has no authority to act without his advice or without the advice of the Ministers appointed to do so. Judicial Function The President has the power to exercise the prerogrative of mercy by section 93 of the Constitution. Yet, even in this situation, the President is not acting on his own initiative as he must receive an advice from the cabinet.
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Power of the President However, there are a number of situations where the Constitution gives power to the President to act on his own independent decisions: Section 76 (5) (a) gives the President the Power to dissolve Parliament following a case were the government receives a vote of no confidence, and the Prime Minister fails to dissolve Parliament or advice a dissolution himself not later than three days from that vote, Further Section 76 (5) (c) allows the President to refuse to dissolve parliamnet if the Prime Minister has recommended one. This would be on the basis that it would not be in the best interests of Malta to dissolve parliament and hold a general election. Also, the President has the power to appoint or remove the Prime Minister from the office, as conferred upon him by sections 80,81 (1). In his judgement, is best able to command the support of a majority of the members of that House. Thus, the Presedents choice is actually an obvious one where there is a stable bi-party with a clear leadership. 81 (1) The President may remove the Prime Minister from office. Again this power can be exercised when the Parliament shows no Confidence in the Goverment. Section 83 (1) of the constitution conferres the Power to the President to authorise any member of the cabinet to perform those functions conferred to the Prime Minister, in his absence from Malta or due to reason of illness. 83 (2) states that these powers should be exercised in accordance with the advice of the Prime Minister but if the President considers that it is impracticable to obtain same advice he may exercise those powers without that advice. 85 (d) conferres the President, The Power to appoint the Leader of Opposition and to Revoke any such appointment conferred upon him by article 90 of this constitution 85 (e) gives power to the President to Appoint his personal staff. It is clearly seen that the area where the President exercises his own judgement is the area cancelled with the appointment and removal of the Prime Minister and Leader of opposition together with the dissoluton of Parliament. However, one may say that in the case of appointing the Prime Minister, the Presidents choice is really a conditioned one. He is in a way obliged to appoint as Prime Minister, the Leader of the Party that enjoys a majority in parliamnet and the confidence of the house.
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Conclusion Although in Malta the President is the head of state, this does not mean that Malta has a Presidential system such as that of the USA. The Maltese President occupies largely a figurative role within the constitution. More than an active order of political power, he is a figure head symbolising the state and an office through whom political power is exercised.
The Prime Minister

De Smith and Brazier stated that: The Prime Minister is the key-stone of the Cabinet Arch, a sun around which the planets revolve, an elected monarch a president of what you will. The emergence of the office of the PM, in the modern sense, arose and evolved in the British constitution out of constitutional conventional arrangements. Initially, there was the birth of the cabinet. This constitutional development took place around 400 years ago, when the British monarch delegated the power of governing to confidential advisors (ministers). In time, the monarch declined to preside over at such meetings and was replaced by the most senior minister, who gradually became known as the PM. Although as per article 78 of our Constitution: 78. (1) The executive authority of Malta is vested in the president. He is to a certain extent only a figure head whilst the office of the PM has the central position of authority like all parliamentary system of government (Westminster model), which is characteristic of the British constitution and which Malta, as an ex-British colony has adopted. In fact article 78 (2) states that this authority is exercised either by the President directly or through officers subordinate to him. The Executive is made up of the President and the Cabinet. 79. (1) There shall be a cabinet for Malta which shall consist of the Prime Minister and such number of other Ministers as may be appointed in accordance with article 80 of this Constitution. (2) The Cabinet shall have the general direction and control of the Government of Malta and shall be collectively responsible therefore to parliament. The Prime Minister is appointed by the President from the members of the House of Representatives: who, in his judgment, is best able to command the support of a majority of the members of that House
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It has to be noted that in a stable bi-party system as it exists in Malta since Independence, the choice naturally falls on the leader of the party winning the election. However, in a multiparty system, in the case of a coalition, the President may have to exercise a real choice and personal discretion to choose that person who is best able to command the support of a majority of the members of that House. The ministers who form the Cabinet are appointed from amongst the members of the House of Representatives by the President on the advice of the PM. Yet, there is an ever increasing tendency for the PM, especially today, to dominate their cabinets and nowadays, the proposition that the PM is merely Primus inter pares (first among equals) cannot be upheld in reality, except on the legal sense that all ministers are under the executive authority of the President. The Prime Minister is a central political figure; he is the countrys principle spokesman in the international scene. He is the channel of communication between the cabinet and the President and the person upon whose advice the President normally acts. He has full authority over the appointment and removal of a minister so much so that he may even require a Minister to resign for any reason he deems fit. The Prime Minister presides over the cabinet, decides the agenda of a cabinet meeting, decides whom to invite to cabinet meetings and decides when it is necessary for a vote to be taken or not. The Prime Minister also has a very important say in the running of cabinet affairs which is done largely in the personal style of the Prime Minister. The Prime Minister is entitled to stipulate which issues must be referred to him personally for a decision outside Cabinet. He may postpone decisions, decide how cabinet business is to be handled and he is in control of the civil service. Therefore, technically speaking, due to the nature of his position, the Prime Minister can control the whole government of the country. In fact, the Prime Ministers approval is always required for the appointment of Heads of civil Departments. A major difference between the ministers and the Prime Minister is that if a minister is defeated on a vote of no confidence he would not have to resign unless the Prime Minister makes the issue a vote of no confidence in the Government. On the other hand, the defeat of the Prime Minister will always involve the resignation of the whole government as happened in 1998 to Dr Alfred Sant LL.D. The Prime Minister represents the Government and therefore if he hands down his resignation or advises dissolution of Parliament to the President, the whole ministry would be wiped out with him. If a Minister proposes a bill and the Prime Minister do not agree with it, the Minister cannot disregard the Prime Ministers opinion because he would be asked to resign. However, the Prime Minister has the power to override Cabinet and take a decision himself; he may also decide to advise dissolution of parliament without consulting the Cabinet. It follows that the Prime minister can also, on his sole initiative, choose a date for a general election to be held. Moreover, article 86 (3) of our Constitution states that where the Prime Minister is required to perform any function in accordance with the recommendation of any person or authority, the question whether he has in any case received or acted in accordance with that recommendation:
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shall not be enquired into in any court. However, one must understand that if the Prime Minister is constantly in opposition with his cabinet he will eventually find himself isolated and he would not only lose the confidence of his cabinet but also of Parliament. The Prime Minister seems to be very powerful but his position is very much dependant on political factors. Too much threatening and continuous disregard for the Cabinet may bring him down. The Prime Minister remains in office as long as he retains the confidence of the House. Therefore if he persists in attempting to over-ride the majority of his colleagues the government will soon disintegrate through resignation. The Prime Minister in his office expresses the idea of collective ministerial responsibility. The whole of the cabinet is answerable for the running of the country through the person and office of the Prime Minister. So the Prime Minister carries with him the whole of his ministries. It is because of this collective ministerial responsibility that the Cabinet resigns together with the Prime Minister To conclude, one may say that the Prime Minister is well above his fellow ministers over whom he holds political authority. However, one must note that the Prime minister is only as strong as long as he retains the confidence of the house. In fact when he loses the support of the majority of votes of the members of the House, the President finds himself in a stronger position than the Prime Minister. As a conclusion it would be wise to note that although the Prime Minister is above his fellow ministers, he is weak before a united cabinet although history has proven that such a situation is very rare.
Jurisdiction of the Constitutional Court

The Judiciary is a very important organ in the Constitutional system. With regards to a parliamentary constitution where there is no true separation of power such as the UK and Malta i.e. where the legislative and the executive powers are fused and there is no clear system of checks and balances as there is found in the USA constitution, it is the judiciary that mainly provides the balance to the system. The notion of an independent judiciary is implicit which is also fundamental to the workings of the Rule of Law. ECS Wade stated that the independence of the judiciary is the guarantee that the doctrine of the rule of law will not be encumbered by no true separation of powers. The function of the courts in a Constitutional system is important as the courts play an independent and impartial role outside the political arena. Thus the judiciary in a democratic system is able to produce a balanced situation and safeguard the rights of the individual under the law, even against the government if the need arises. In Malta a judge is appointed by article 96 of the Constitution: 96. (1) The judges of the superior courts shall be appointed by the President acting in accordance with the advice of the Prime Minister.
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Although appointed by the President on advice of the Prime Minister, article 97 states: 97. (2) A judge of the Superior Courts shall not be removed from his office except by the President upon an address by the House of Representatives supported by the votes of not less that two-thirds of all members thereof and praying for such removal on the ground of proved inability to perform the functions of his office or proved misbehaviour. These provisions secure the impartiality and independence of the judiciary (and A.G.). Furthermore the fact that a Magistrate/Judges salary is charged to the Consolidation Fund shows the independence from any motion in the House to threaten the Judge/Magistrate. Section 107 (2) states: (2) The salaries and allowances payable to the holders of the offices to which this article applies shall be charged on the Consolidation Fund. Also before the House of Representatives can in fact discuss the possibility to remove a judge from his office, at least a prima face case of misbehaviour has to transpire from investigations carried out by the Commission of administration of Justice. 101A. (1) There shall be a Commission for the Administration of Justice which shall consist of the President, who shall be the chairman and nine other members This is specifically meant to ensure independence and impartiality and that the judge will function separately from government. He is to come to an impartial judgment in case of need and he should not be influenced by public authority but decide according to law. The two courts which are mentioned in the Constitution are: The First Hall of the Civil Court and The Constitutional Court. The First Hall of the Civil Court has exclusive jurisdiction with regards to fundamental human rights cases: 46. (2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article Whereby sub-article (1) states: any of the provisions of articles 33 to 45 (inclusive) Article 95 of the Constitution states: 95. (1) There shall be in and for Malta such Superior Courts having such powers and jurisdiction as may be provided by any law for the time being in force in Malta. (2) One of the Superior Courts, composed of such three judges as could in accordance with any law for the time being in force in Malta, compose the Court of Appeal, shall
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be known as the Constitutional Court and shall have jurisdiction to hear and determine- The Constitution further states when the Constitutional Court has jurisdiction and amongst these are: Electoral issues Appeals from the Civil Court First Hall, Appeals from decisions of any court of original jurisdiction in Malta as to the interpretation of the Constitution, Appeals from decisions of any court of original jurisdiction in Malta on questions as to the validity of laws.
From the enactment of article XIV of 1987, appeals from decisions under the European Convention Act have been also granted to the Constitutional Court. Its jurisdiction may not be reduced except through an amendment of the constitution by a 2/3 majority. In modern democracies, the judiciarys main role is to ensure the Rule of Law and through the Separation of Powers it is ensured that citizens are treated equally and fairly with no discrimination. However, it is also true that a strict separation of powers would result in a static state. Unfortunately, at times certain factors may infringe with the impartiality of the judiciary and this consequently leads the people to loose faith in the judicial system. Thus it is vital that justice is not only done, but also seen to be done.
Freedom of Conscience, Expression, Association, and Assembly

Through the course of history, people have fought for their rights to dignity, fair hearing and humane treatment; but especially they have fought for their freedom of conscience, expression and association as well as assembly which ensure that each person is free to expresses himself as he thinks best. Article 40 deals with the freedom of conscience and worship, and the enjoyment of the free exercise of religious worship. The freedom of conscience includes the right to believe and the right not to believe in God. Clearly therefore, if you believe in God you have the right to worship him in your own way, of course ones actions must be in conformity with the law and not be in conflict with public order of indecency. Article 41 is the freedom of expression. It is not a question of inner belief but expressing an opinion in public. The freedom of expression includes the following: 1. 2. 3. 4. Freedom to hold opinions without interference Freedom to receive ideas and information without interference Freedom to communicate ideas and information without interference Freedom from interference with ones correspondence
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Article 42 is the right to freedom of assembly and association, thus it allows people to set up an association and as long as the purpose is legitimate one cannot be hindered in the exercise of this right. However this also means that people can hold and express an opinion together, for instance in a demonstration or a public meeting, where they are expressing an opinion as a community to show the strength behind that opinion. However, the law states that it has to be a peaceful assembly. These rights related to freedom of expression are so important because of the following reasons: i. ii. iii. iv. Freedom of expression is a means of assuring the individual a degree of personal self fulfilment It is an essential process for the advancement of knowledge and the discovery of truth. It is necessary in order to allow all members of the society to participate in public decision making. In a democratic society it is a method of achieving necessary social change without resort to violence.
Restrictions to these Rights Chapter 4 of the Constitution deals with the fundamental rights and freedoms of the individual. However in the introduction, the law clearly states that most of these rights are not absolute, and in fact they are limited. Article 32 stipulates that whereas every person in Malta is entitled to the fundamental rights and freedoms of the individual, these are subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: i. ii. iii. Life, liberty, security of the person, the enjoyment of property and the protection of the law; Freedom of conscience, of expression and of peaceful assembly and association; Respect for his private and family life
The introduction of chapter 4 clearly declares that human rights stop at the frontier of human duty; thus, these rights are limited either to protect the rights of others or in the public interest. Sub-article (b) indicates that these three rights are among those considered as not absolute. The restrictions applicable by law to these rights are called statutory permissible derogations because they are exceptions to the rule, and therefore have to face stiff criteria.
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These restrictions are permissible only because the constitution expressly states so; that is, that for reasons of public order these freedoms may be restricted. However, in order for the restrictions to be lawful, they must meet the following criteria: i. ii. iii. iv. v. Case Law In the case of Monsinjur Philip Callejja vs. Spettur Dennis Balzan which occurred in 1975, Monsinjur Callejja was offended with the new marriage law and to express his disapproval he printed a poster stating: Malta Kattolika offiza bil-ligi taz-zwieg and without uttering a single word he held it up during a procession leading to the Mosta church. A group of about 20 people felt offended by this and asked Spettur Dennis Balzan to take action against the Monsinjur or they would do so themselves. The inspector felt that there was a threat to public order and asked Callejja to give him the poster. On Callejjas refusal, the inspector snatched the poster and tore it up. The Constitutional Court overruled the judgment of the First Hall and ruled in favour of Monsinjur Calleja. The first point emphasized by the court was that there exists a fundamental human right to freedom of expression whereas a right to disrupt this freedom of expression did not exist. The freedom of expression includes the expression of unpopular opinions; indeed the real test is not when you are free to express a popular opinion but only when you are free to express an unpopular opinion. This importance is superbly expressed by Voltaires: I can disagree with your opinion but I am ready to die for you to express your own opinion. The second point made by the court was that the police are expected to act if there is a threat to public order. However this threat must be clear and present, whereas in this case the court felt that even though there was an indication of danger towards public order, this danger was not present and clear. The case of Dr. Anton Buttigieg vs. Borg Olivier also deals with freedom of expression. In 1961 the Voice of Malta newspaper was condemned by the Catholic Church. In 1962 the minister for health issued a departmental order by means of a circular which amongst other things prohibited the entry in government hospitals of newspapers condemned by the Catholic Church. Anton Buttigieg who was the editor of The Voice of Malta filed a case claiming that the circular went against the fundamental right to freedom of expression. The restriction must be in a law. The restriction must be implemented under the authority of that law, and it must be also done validly under a law. The law must be reasonably required in the public interest It must be reasonably required for the protection of the reputations, rights and freedoms of other persons or persons concerned in legal proceedings It must be reasonably justifiable in a democratic society
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Both the 1st Hall of the Civil Court and the Constitutional Court ruled in favour of Dr. Buttigieg as the restriction was contained in a circular and a circular is not a law, clearly failing the provisions of article 41. The government filed a case before the Privy Council where the final argument of the government was that this issue was not so important and a fuss was made out of it. The Court replied in a famous sentence: The plea that what was done was not far reaching comes ill from those who reach as far as they could Another important case is that of Police vs. Gianni Camilleri. As the atmosphere leading to Independence was very tense, meetings and public demonstrations, except for the official Independence celebrations, were prohibited between the 16th and the 24th of September 1964. Government felt that the Police could not cater for the official celebrations together with other demonstrations. The party in opposition issued directives to its own supporters so that on the 21st September 1964 they go to the Independence arena and mix with the supporters of the government and while the government supporters would be applauding the granting of independence they would start booing. Subsequently, six persons amongst who was Gianni Camilleri were arrested and arraigned in court. Mr. Camilleri and the others raised the issue that the proclamation issued by the government prohibiting demonstrations is constitutionally invalid. The Constitutional Court accepted the argument of the government about the lack of police, which had been rejected in the 1st Court, and agreed that objectively speaking it was not practical for the police to control two events at one moment in time. This judgement is sound at law but it creates certain doubts and can be criticised of being too restrictive of the freedom of assembly. It would have been justified to prohibit demonstrations in the vicinities of the places where the official celebrations were to be held but it was too restrictive in prohibiting demonstrations in other areas where they would not interfere with the official celebrations. In the case of Dr. Eddie Fenech Adami vs. Commissioner of Police, decided by the Constitutional Court in 1986, the court ruled that the fundamental human rights should be respected and it is the polices duty to keep public order. In this case the Nationalist Party wanted to hold a meeting in Zejtun however the Police disallowed it. A Constitutional case was filed from which arose the debate of the protection of fundamental human rights as against the polices concern for public order.
The Right to a Fair Trial

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This right is a procedural right and it is irrelevant whether it is a criminal or civil right, whether the accused is guilty or innocent; this right is not substantial, it is absolute. This right can be regarded as the most important of all fundamental human rights. This is the only human rights which is an absolute right, thus it does not have any exceptions in its application. Indeed one Supreme Court Judge of the United States at the height of the Cold War stated I would prefer having Soviet Union law applied by US law procedure rather than US law applied by Soviet Union procedure. Under Maltese Law the right to a fair hearing is protected both by the Constitution and by the European Convention Act; Act 14 of 1987 which today is Chapter 319 of the laws of Malta. This act incorporates the relevant sections of the European Convention on Human Rights regarding the said right in its first schedule. Article 39 of the Constitution contains 11 sections; Article 1 contains general provisions in criminal proceedings Article 2 contains general provisions in civil proceedings Article 3 contains a provision stating that proceedings must take place in public Article 4 is an exception to article 3 Articles 5-11 contain specific rights relating to criminal proceedings only
Article 39 of the Constitution: Article 39(1) 39 (1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. Article 39(2) 39 (2) Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time. When comparing article 39(1) with 39(2), we notice that article 39(1) relates to a fair trial in criminal proceedings, whilst 39(2) relates to a fair trial in civil proceedings. We also notice that in the case of criminal offences the articles mentions the word court, whilst in the cases of civil proceedings, the question of adjudicating authority broadens the extent of application. The Maltese courts have interpreted section 39(1) as excluding tribunals, boards, and other judicial bodies which are not courts in the true and proper sense of the term, thus the word court has been interpreted to mean the court presided by magistrates and judges. On the other hand with regard to article 39(2) it was established that this second sub-article refers also to other adjudicating authorities rather than the ordinary courts of justice. The following cases are related to the interpretation of article 39 of the constitution. In the case of Raymond Sammut vs. Prime Minister ET, decided by the constitutional court on 27th April
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1993, it was decided that the fact that the chairman of the industrial tribunal did not have security of tenure did not lead to a situation were the adjudicating officer was not independent or impartial. This principle was established under article 39(2) of the constitution. In the case Montalto vs. Clews the first hall of the civil court in its constitutional jurisdiction said that the words court, tribunal and other adjudicating authority meant different things, therefore, when the constitution uses the word court it only meant the superior court presided over by a judge or the inferior court presided over by a magistrate. The industrial tribunal was not a court according to the constitution. In the case of Galea vs. Prime Minister decided by the constitutional court in 1988 it was held that the board for the investigation of allegations of conduct of administrative nurses in Craig hospital Gozo was an independent and impartial tribunal. In cases of breaches of the above articles; the case would start off in the First Hall of the Civil Court in its Constitutional Jurisdiction, then may be appealed to the Constitutional Court, and finally referred to the European Court of Human Rights. It is important to note that a case brought before the European Court of Human Right is a reference and not an appeal. In fact, this reference does not suspend proceedings in Malta whereas an appeal to the Maltese Constitutional Court would. Upon looking at the wording of article 39, one can notice that there is no definition of what is a fair hearing. However, there are four cardinal rules which are not mentioned in the constitutional but they are traditionally linked to the right to a fair trial. Thus before analysing in greater detail the provisions of this article, it would be best to keep in mind the following rules: Golden Rule 1 Nemo Iudex in Causa Propria This means that no one should be a judge in his own case. Golden Rule 2 Audi Atteram Partem This means that both parties should be heard. Golden Rule 3 Equality of Arms This means that both parties should enjoy the same rights. Golden Rule 4 Reason for Decision This means that the Court should give its reasons when deciding the case. This principle makes the right of appeal logical. If one does not know the reasons for his conviction, one cannot appeal. The first case brought before the European Courts of Human Rights with regards to breaches of human rights in Malta, which was decided against Malta was the case of Charles Demicoli vs. Malta decided on the 27th August 1991. The facts were as follows. Demicoli was the editor of the satirical newspaper Mhux fl-interess tal-poplu. One fine day Demicoli commented on a parliament debate and the behaviour of two members of parliament, and the latter two were clearly not amused. The two had the right to raise a question of a breach of privilege for any article that criticized their actions in parliament, and if it resulted prima facie that there was such a breach, the offender is brought in front of parliament and could be fined and even sent to prison.
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On the eve of Demicolis arraignment, the defence filed a lawsuit protesting that the parliamentary proceedings would be unconstitutional as it breached their clients right to a fair trial, as the victims were also the prosecutors and the judges in their own case. In the parliamentary proceedings Demicoli did not reply to his accusations and it was taken for granted, that the same rule applied in criminal proceedings should be used. This rule is that if the accused does not enter a plea, he would be presumed to be pleading not guilty. This fact intrinsically shows that these proceedings were of a criminal nature. The case then went before the First Hall of the Civil Court in its Constitutional Jurisdiction which on the 16th May, 1986 declared that parliament had acted unconstitutionally and ruled in favour of Mr. Demicoli. However, parliament appealed the judgment and the case went before the Constitutional Court which on the 13th August, 1986 ruled that the right to a fair trial did not apply in the case of a breach of privilege. Therefore, Parliament imposed a fine of Lm250, which Demicoli refused to pay. By that time, 1987, Malta had ratified the European Convention thus it became possible to refer a case to the European Court of Human Rights. Demicoli referred his case to this court. The European Court of Human Rights ruled that Demicolis case was in fact a case of Criminal Proceedings and therefore the House of Representatives undoubtedly exercised a judicial function in determining Demicolis guilt. The two members of parliament who raised the issue were in fact, victims, prosecutors and judges. For this reason, the impartiality of the judicial body was impaired and therefore in breach of Article 6 of the European Convention of Human Rights. After this, our law was amended, such that parliament today can no longed decide cases of this nature. Article 39(3) This article deals with the rule of publicity in criminal or civil proceedings. As a rule, all proceedings must take place in public. Article 39(4) This article is an exception to the previous article. In some cases, it is in the interest of justice that proceedings take place behind closed doors. Amongst others, instances of these are proceedings involving private citizens income tax return, and cases involving minors, such as defilement of minors. Article 39(5) This section deals with the presumption of innocence. This is a procedural rule which implies that it is the duty of the prosecution to prove guilt and not of the defence to prove innocence. This therefore explains a defendants right to remain silent as it is not his duty to prove that he is innocent. Article 39(6)
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This article provides for certain rights to be enjoyed by every person who is charged with a criminal offence. Some of these rights include the right that the accused receives a formal charge in writing and in a language which he understands. There is also the right, if necessary, to have an interpreter. However, the most important right in this section is the right to a lawyer, and if he cannot afford a lawyer, to be provided one free of charge. Our Constitution does not specify that a lawyer may be of ones own choice. However in the case of Police vs. Michael Falzon, decided by the Constitutional Court on the 26th September 1989 the Constitutional Court declared that it would be only logical to presume that Article 39 (6) implies a lawyer of your choice. In 1978 government through Parliament enacted a law whereby certain lawyers who were also members of Parliament were prevented from defending certain cases. For instance they could defend the government in Constitutional proceedings but they could not defend the individual. Also in criminal cases there were certain crimes where these members of parliament could not participate as defence lawyers including the case of sedition, that is, when you spread false rumours to create trouble against the government. In 1979 Michael Falzon, an editor of a newspaper was accused with sedition and he wanted to engage as his lawyer Professor Guido De Demarco who was also a Member of Parliament. The prosecution objected to this because since the proceedings against Falzon were proceedings related to sedition, Demarco could not defend this case. The Constitutional Court in 1988 decided that even though the words of his own choosing which are found in the European Convention for Human Rights were omitted in the Constitution; common sense had to prevail and the right to a lawyer in criminal proceedings meant a right to a lawyer of ones own choosing. Article 39(7) This deals with the right to a copy of the judgment, against payment if applicable. Article 39(8) This is the rule against retro-activity of penal laws. Thus Parliament cannot enact criminal laws which are retroactive however fiscal and civil laws can be enacted retroactively. Although this would be unfair, it is not unconstitutional. In the case of Police vs. Lawrence Cuschieri decided on 8th January 1992 by the Constitutional Court, the general rule of applying the law of the procedure at the time of the trial was tested constitutionally. Cuschieri was charged with the offence of bribery of Public Officers by paying them in return for licences. In this offence, the code required the corroboration of the evidence of an accomplice. An accomplice giving evidence against the accused is only permitted in the corroboration is supported by an independent witness. When Lawrence committed the offence, this was still applicable. A law was passed during the trial the rule of corroboration was repealed and an accomplice could give evidence without the need of corroboration. The law states that corruption was not applicable to the bribery of Public Officers because if the officer accepts then he is an accomplice. Pending proceedings there was the derogation of the general rule and this general rule was tested constitutionally and with respect to the Convention. Cuschieris pleas were rejected on the grounds that this general rule is not in violation of the Constitution of the Convention. The Constitution states that no person can be punished for an offence that did not constitute a criminal offence when it was committed and a person is not to be punished more severely than he would have been punished at the time of the commission of the offence. The amendment to 639(3) did not affect these two principles in any way. This was
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not a substantive rule change because corruption was always an offence. This is a rule of procedure a rule of evidence that changed. Thus the non-retroactivity of penal laws in the Constitution does not include the non-retroactivity of procedural rules; the court said that: Fil-kas prezenti l-ligi la tohloq reat gdid u l-aqqas piena gdida. Section 39(9) This is the rule of Double Jeopardy, that is, one cannot be tried twice for the same fact. Section 39 (10) No person who is tried for a criminal offence shall be compelled to give evidence at his own trial. Section 39 (11) In this section "legal representative" means a person entitled to practise in Malta as an advocate or, except in relation to proceedings before a court where a legal procurator has no right of audience, a legal procurator. Case Law We have seen that in a criminal case, the case cannot be tried by a tribunal or an adjudicating authority but by a court. The case of Police vs. Emanuel Vella decided by the court on the 28th June, 1983, the court declared that the court in criminal cases means only courts presided over by magistrates and courts presided over by judges. This was a case of a meat seller who was charged before a board because he had been charging excessive prices, and a law had been passed that all such cases should be tried before this board. For this breach of law, the butcher could be fined or even imprisoned; thus the defence raised the issue that the law setting up this board was unconstitutional. One cannot be sent to prison for a civil case and furthermore only a magistrate or judge can send people to prison. This law was declared to be unconstitutional In the case of extradition, it was declared by the courts that the person requested to be extradited has a right to a fair trial too. In fact in the Colin Trundell Case of 1991, the Constitutional Court decided that in Malta, the right to a fair trial existed also in extradition proceedings, in spite of the fact that European case law states otherwise. As extradition is not considered to be a proceeding at all, but merely formal negotiations before the actual trial, European doctrine held that the right to a fair trial is not necessary. In the case of Ancillieri vs. Prime Minister, it was decided that as the case referred to fiscal proceedings, it was neither a criminal proceeding, nor a civil proceeding. Thus as it was none of the two types mentioned in the Constitution, Ancillieri was not protected by a right to a fair trial.
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The facts of the case were as follows. The government had introduced a levy on food; however some pastries were exempted from this levy. Mr Ancillieri had a coffee shop and amongst others he sold quiche lorraine, which was very similar to the pastries which were exempted from the levy. Thus Ancillieri asked whether he had to pay levy or not, and he was told by an Inland Revenue employee that no tax would be charged. However a few months later the income tax department sent him a receipt of LM750 as tax due. Both the government and Mr Ancillieri were prevented from providing that employee as a witness, and this was obviously an advantage to the government because Ancillieri needed the government employee as a witness to say that he had told him not to charge the levy on the quiche lorraine. Eventually it was decided that there was no breach of right to a fair trial because fiscal cases were neither criminal nor civil proceedings. Years later, however, on the 30th November 2001, the Constitutional Court reversed this decision. In the case of Anthony Frendo vs. Attorney General the court declared that a fair hearing was required even in cases of fiscal proceedings. Frendo was a manger of It-Tikka bar, and he received a vat bill. He didnt agree with the amount due, but by law, to challenge it, he had to deposit 25% of the contested amount. Frendo said that this went against his right to a fair trial, because depositing such a large amount would be blocking access to a court or tribunal. The constitutional court decided in favour of Frendo, therefore automatically, the right to a fair trial was introduced also in fiscal proceedings.
Freedom of Conscience, Expression, Association, and Assembly

Introduction Through the course of history, people have fought for their rights to dignity, fair hearing and humane treatment; but especially they have fought for their freedom of conscience, expression and association as well as assembly which ensure that each person is free to expresses himself as he thinks best. Countries which failed to provide or protect these basic rights faced severe consequences. Some countries, such as France obtained their Declaration of the Rights of Men and the Citizen by means of a bloody revolution. The United States also had to struggle to obtain their independence and the subsequent Bill of Rights. On the other hand the British succeeded gradually in transferring some of the power of the monarch to parliament, thus ensuring that the people could have an organ to redress their frustration. These rights are the hallmark of a democratic society, and nowadays the majority of countries acknowledge the fundamental importance that people are free to impart ideas and to receive ideas. It is also important because it allows real debate within a democratic society where even unpopular views may be expressed allowing people to vent their feelings through ordinary legal means.
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Freedom of Conscience Article 40 is the right to freedom of conscience. Thus this section deals with the freedom of conscience and worship, and the enjoyment of the free exercise of religious worship. The freedom of conscience includes the right to believe and the right not to believe in God. Clearly therefore, if you believe in God you have the right to worship him in your own way. Of course my method has to be in conformity with the law and not be in conflict with public order of indecency. Thus if the church wants to organise a religious processions; a procession being a religious manifestation, it has a right to do so unless it violates public order. Freedom of Expression Section 41 is the freedom of expression. It is not a question of inner belief but expressing an opinion in public. The freedom of expression includes the following: 5. 6. 7. 8. Freedom to hold opinions without interference Freedom to receive ideas and information without interference Freedom to communicate ideas and information without interference Freedom from interference with ones correspondence
Freedom of Assembly and Association Section 42 is the right to freedom of assembly and association. While the rights provided in articles 40 and 41 relate to the individual, article 42 relates to the gathering of persons expressing similar opinions. Thus this allows people to set up an association, the right to form a political party, the right to form a football club, the right to form a trade union and more. As long as the purpose is legitimate you cannot be hindered in the exercise of this right. However this also means that people can hold and express an opinion together, for instance in a demonstration or a public meeting, where they are expressing an opinion as a community to show the strength behind that opinion. However, the law states that it has to be a peaceful assembly. These rights related to freedom of expression are so important because of the following reasons: 1. Freedom of expression is a means of assuring the individual a degree of personal self fulfilment. You fulfil yourself in the development of personality not by just believing in something but by communicating it to others enabling a person to realise his or her potentialities as a human being. 2. It is an essential process for the advancement of knowledge and the discovery of truth. You can only discover truth by allowing persons to express their opinion. To test ones judgement by exposing it to conflicting views. You can only test your faith not when you are in the community where all express the same belief but the real test comes when it
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is challenged by others who do not share that particular opinion or particular belief and sometimes you become more convinced of your own beliefs when someone else challenges them. 3. It is necessary in order to allow all members of the society to participate in public decision making. How can you participate in the democratic process, whether it is the right to vote, to be heard, to participate in decisions, which are going to protect you, if you do not receive and communicate ideas, if you are not well informed, but you can only be informed through the enjoyment of your freedom of expression which includes the freedom to communicate and to receive ideas and information. 4. In a democratic society it is a method of achieving necessary social change without resort to violence. When you suppress opinions there might come a time when those opinions will be expressed in a violent way. If you allow these opinions to be aired there will be no resort to violence.
Restrictions to these Rights Chapter 4 of the Constitution deals with the fundamental rights and freedoms of the individual. However in the introduction the law clearly states that most of these rights are not absolute, and in fact they are limited. Article 32: 32. Whereas every person in Malta is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely (a) Life, liberty, security of the person, the enjoyment of property and the protection of the law; (b) Freedom of conscience, of expression and of peaceful assembly and association; and (c) Respect for his private and family life The subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. The introduction of chapter 4 clearly declares that human rights stop at the frontier of human duty; thus, these rights are limited either to protect the rights of others or in the public interest. Sub-article (b) indicates that these three rights are among those considered as not absolute. A fundamental similarity among these rights is not only that they are similar in the substance of the right itself, but they are also similar in regards to the types of restrictions which applies to
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them. These restrictions are called statutory permissible derogations because they are exceptions to the rule, and therefore have to face stiff criteria. These restrictions are permissible only because the constitution expressly states so; that is, that for reasons of public order these freedoms may be restricted. However, in order for the restrictions to be lawful, they must meet the following criteria: 1. The restriction must be in a law, 2. The restriction must be implemented under the authority of that law, and is must also be done validly under a law. 3. The law must be reasonably required in the public interest, 4. It must be reasonably required for the protection of the reputations, rights and freedoms of other persons or persons concerned in legal proceedings, 5. It must be reasonably justifiable in a democratic society. Case Law Ones freedom of expression must be protected even if that opinion is unpopular. This right also includes freedom of speech which includes the mode with which you choose to express your opinion, for example by remaining silent or by exhibiting a poster. Even if you are not uttering a single word you may be still exercising your right to freedom of expression. This can be seen clearly in a case of Monsinjur Philip Callejja vs. Spettur Dennis Balzan which occurred in 1975. Monsinjur Callejja was offended with the new marriage law and expressed his disapproval. He therefore printed posters stating Malta Kattolika offiza bil-ligi taz-zwieg. Without uttering a single word, Monsinjur Callejja opened this poster and held it up during a procession leading to the Mosta church. A group of about 20 people felt offended by this and asked Spettur Dennis Balzan to take action against the Monsinjur or they would do so themselves. The inspector felt that there was a threat to public order and asked Callejja to give him the poster. On Callejjas refusal, the inspector snatched the poster and tore it up. Callejja sued Balzan on the grounds of limiting his right to freedom of expression. Balzan argued that he did this to protect public order and felt that Callejjas actions were a threat to such order. Therefore his actions were done in the public interest. The first hall ruled in favour of Inspector Balzan because it gave a lot of importance to the subjective element of the decision of the inspector. However, the Constitutional Court overruled the judgment of the First Hall. The first point was that there exists a fundamental human right to freedom of expression whereas a right to disrupt this freedom of expression did not exist. Thus if those 20 people were happy with the new marriage law, they should have printed out their own posters. The freedom of expression includes the expression of unpopular opinions; indeed the real test is not when you are free to express a popular opinion but only when you are free to express an unpopular opinion. The importance of the right to express your opinion is superbly expressed by Voltaires, I can disagree with your opinion but I am ready to die for you to express your own opinion. The second point made by the court was that the police are expected to act if there is a threat to public order. However this threat must be clear and present. The Court ruled in favour of
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Monsinjur Callejja because it felt that even though there was an indication of danger towards public order, this danger was not present and clear and therefore inspector Balzan was not justified in limiting Callejjas right to expression. The case of Dr. Anton Buttigieg vs. Borg Olivier also deals with freedom of expression. In 1961 the Voice of Malta newspaper was condemned by the Catholic Church. In 1962 the minister for health issued a departmental order by means of a circular which amongst other things prohibited the entry in government hospitals of newspapers condemned by the Catholic Church. Anton Buttigieg who was the editor of The Voice of Malta filed a case claiming that the circular went against the fundamental right to freedom of expression. The 1st Hall of the Civil Court ruled in favour of Dr. Buttigieg because it felt that the restriction was contained in a circular and a circular is not a law or something done under a law thus clearly failing the provisions of article 41. It also said that there was no reasonable justification for this order. The government appealed to The Court of Appeal and in 1963 this court confirmed the decision of the 1st Court. The government filed a case before the Privy Council, and in their judgement the Lords of the Privy Council said that when the government issued this departmental order it was also discriminating because if it was a political newspaper it could be admitted in the hospital but if it was a political newspaper condemned by the Church it could not be admitted. The final argument of the government was that this issue was not so important and a fuss was made out of it. The Court replied in a famous sentence criticising this attitude that you can break fundamental human rights to a small degree. There is either a violation or there is no violation. They said: The plea that what was done was not far reaching comes ill from those who reach as far as they could Another important case is that of Police vs. Gianni Camilleri. The atmosphere just before the independence was very tense, thus the government prohibited the holding of meetings and public demonstrations between the 16th and the 24th of September 1964 anywhere in Malta and Gozo except for the official Independence celebrations. This was done because it was felt that the police could not cater for the security needed for the Independence celebrations other demonstrations. This prohibition was legally issued according to the Public Meetings Ordinance. The party in opposition reacting to this proclamation issued directives to its own supporters so that on the 21st September 1964 they go to the Independence arena and mix with the supporters of the government and while the government supporters would be applauding the granting of independence they would start booing. Subsequently, six persons amongst who was Gianni Camilleri were arrested and arraigned in court. Mr. Camilleri and the others raised the issue that the proclamation issued by the government prohibiting demonstrations is constitutionally invalid. The 1st Hall of the Civil Court said that the reason put forward by the government that it could not cater for all the supporters, and therefore allowed only the official celebrations to take place was just an argument of convenience for the police. However it upheld the proclamation as being valid and therefore rejected the applicants request. It said that it was in the interest of public order to
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prohibit demonstrations because the opposition party had issued directives which were in violation of public order. These directives created a treat to public order. But how can you justify a proclamation on the basis of directives issued as a reaction to the proclamation itself. The Constitutional Court accepted the argument of the government about the lack of police, which had been rejected in the 1st Court, and agreed that objectively speaking it was not practical for the police to control two events at one moment in time. Thus it is legitimate for the police to prohibit certain activities temporarily. This judgement is sound at law but it creates certain doubts and can be criticised of being too restrictive of the freedom of assembly. It would have been justified to prohibit demonstrations in the vicinities of the places where the official celebrations were to be held but it was too restrictive in prohibiting demonstrations in other areas where they would not interfere with the official celebrations. In the case of Dr. Eddie Fenech Adami vs. Commissioner of Police, decided by the Constitutional Court on the 29th November 1986, the court ruled that the fundamental human rights should be respected and it is the polices duty to keep public order. In this case the Nationalist Party wanted to hold a meeting in Zejtun however the Police disallowed it. A Constitutional case was filed from which arose the debate of the protection of fundamental human rights as against the polices concern for public order.
Degrading and inhumane Treatment

The constitution of Malta prohibits four (4) main points: Inhumane Punishment Degenerating Punishment Inhumane Treatment Degrading Treatment In the case of Ireland vs United Kingdom, it was alleged that IRA prisoners were ill treated by the prison guards and security personnel inside the British prisons. It was established that a common abusive method on the prisoners included sleep deprivation; the technique of playing loud music for long intervals with the intent to deprive the prisoners of their sleep, was used. Another method used was that of submerging their heads in buckets of water. In such cases, in order to determine the severity of the offence or rather the extent and severity of the violation of human rights, it is necessary to use both the objective and the subjective test. That is, an ill treatment vis--vis a certain person may be considered only as illegal, but that same treatment against another person who is vulnerable may be considered both illegal and inhumane. A very important international case was that of the Greek Case, where the European Court of Human Rights declared, and gave meaning to the terms inhumane and degrading treatment. The historical facts are as follows: The military colonels of Greece took over the government and declared a coup dtat. This coup which lasted for about seven years was overshadowed by violence and oppression against political adversaries of the military junta. Under the European Convention it was possible for states to seek legal action against another state. Obviously this is
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a last resort, as naturally states try to avoid conflict with other states. In this particular case, legal action was initiated by Scandinavian Countries and France, who sued Greece for allowing, or for turning a blind eye, to the torture and ill treatment of students by the state police. This is the beauty of the convention. The Scandinavian countries were not suing Greece for oppressing Scandinavian nationals, but suing Greece for ill treating Greek national inside Greece. Before 1998, you could not go directly to the European Court of Human Rights. In fact there was a European Commission of Human Rights which was responsible to determine each claim, an if there was a prima facia case, then it would allow the claim proceed to the European Court of Human Rights. Inhumane Treatment: The notion of inhumane treatment covers at least such treatment as deliberately causes severe suffering; mental or physical which in the particular situation is unjustifiable.
Degrading Treatment This treatment is any act which lowers a person in rank, position, reputation, or character if it reaches a certain level of severity. Torture This is inhumane treatment, consisting of the description mentioned above, but it is done with a purpose of reaching a goal. An example is the use of torture during a police interrogation. Here we may refer to the case of Tonio Vella vs. Commissioner of Police decided by the Constitutional Court on the 05/04/1991. This incident occurred in 1983. In 1986 there was the first court judgement, and finally in 1991 there was the judgement delivered by the Constitutional Court. Note that this is the same case that we mentioned during the lecture about arbitrary arrest, however in this case we are going to analyse the case from the angle of human rights, in particular of the offence of ill treatment. Tonio Vella, a young disabled person was suspected of doing a particular offence. Consequently he was interrogated in the police headquarters. During the interrogation he was insulted and verbally abused several times, he was hit twice on the head, and also threatened to be hanged from a hook, which was attached to the roof of the interrogation room. All this clearly resulted in inhumane treatment; also aggravated by the fact that Tonio Vella was a disabled person. In the case of Jospeh Azzopardi (1984) the court decided that although the person was not beaten or insulted, the conditions of the cell (lice infested mattress) amounted to inhumane treatment. The Constitutional Court decided that the conditions must not cause mental suffering or otherwise they could also amount to inhumane treatment. In the case of Ellul Sullivan vs. Tilney (1975) Dr. Tilney was residing in a house in Sliema, next to the Metropolitan Hotel, owned by Ellul Sullivan. The latter wanted to evict Dr. Tilney so that the
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house would be given to someone else. The Constitutional Court decided that it is inhumane to be evicted from your own home, so that the same house would be given to someone else. The judgement was delivered by Judge George Schembri and he said (To check the judgement and include the quote) The case of Vassallo Gatt (1982) pushed the meaning of inhumane treatment to the possible extent. In 1982, the party in opposition as part of a campaign for civil disobedience ordered the workers not to go to work on the 29th June, 1982. Thousands of people observed this political order, amongst who was Vassallo Gatt, an accountant employed with a company in which the government had the majority of the shares. In retaliation the government argued that these workers did not have a right to strike as the strike was not ordered by a legitimate workers union. Thus the government suspended from work all the government employees who had obeyed this unofficial strike ordered by a political party. In August 1982 the government asked the suspended workers to sign a declaration stating that they will never again obey another such order from a political party. If they signed this declaration they would get their job back. Vassallo Gatt refused to sign such a declaration and consequently was fired from work. The court of first instance decided that the dismissal from work of Vassallo Gatt was degrading and inhumane treatment. This decision went beyond the fact that he was not physically or verbally abused, detained or beaten, and in fact this judgement stretched the meaning of the term degrading treatment to the limit. Another meaning to this notion was given in the Soering Case decided by the European Court of Human Rights on 07/07/1989. Mr. Soering was an 18 years old German national and together with his girlfriend was accused of killing the girls parents in Virginia, USA. Mr. Soering fled from the USA but was arrested in England. The USA asked Britain to extradite Mr. Soering. Thus they took him before a British court to authorize the extradition. The British court approved the extradition. Mr. Soering appealed before the European Court of Human Rights and asked that he would be tried in a German Court. He argued that the extradition must be stopped due to the fact that in Virginia there was the death penalty, and more importantly there was a death row, that sometimes extended to 6 years. The European Court declared that the death row phenomenon in Virginia could amount to inhumane treatment. Nowadays, the Council of Europe developed an important convention. In order to prevent torture they set up the Committee for the Prevention of Torture, with the main task of visiting various countries and inspecting the detention facilities in these countries, to verify that the detention facilities are of such standard that do not create an inhumane environment. The positive factor about this committee is that this is not an ex post facto organ; that is, it does not act after the abuse has been committed but it acts to prevent. Additional Note: The death penalty is not considered as a degrading and inhumane treatment. Quite a paradox considering that the E.C.H.R decided that the death row constituted an inhumane treatment. So, by extension, the question is; why is the killing of a human being by lethal injection or any other
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mean not considered as inhumane? This answer has yet to be answered. However it should be noted that European Union states abolished the death penalty.
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Constitutional Law - Important Conventions

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The Rule of Law

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The Prime Minister

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Jurisdiction of the Constitutional Court

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Freedom of Conscience, Expression, Association, and Assembly

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The Right to a Fair Trial

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Freedom of Conscience, Expression, Association, and Assembly

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Degrading and inhumane Treatment

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