Cairo – March 2009

Your Excellency, Chief Justice Abd-elwahed,
Excellencies,
Dear Colleagues:

First of all allow me to convey to the Supreme Constitutional Court of Egypt the greetings and congratulations of the Constitutional Court of Malta on the auspicious occasion of the 40th anniversary of the foundation of the Constitutional Judicature in Egypt. It is, indeed, highly commendable that this occasion should be marked by the organisation of two symposia on topics which are of extreme interest to all those who work within the field of constitutional law and fundamental human rights.

In the brief time allotted to me, I would like to share with you a few thoughts on the relationship between human rights and political freedoms on the one hand and constitutional courts on the other. In doing so I will draw on the experience of the Constitutional Court of Malta which is, after all, only five years older than that of our host country.

Constitutional courts, in the sense of a court, separate and distinct from the ordinary courts, with a special jurisdiction to rule primarily on the constitutionality or otherwise of laws passed by the legislature, are, by and large, a creation of the twentieth century. In some jurisdictions, constitutional courts are composed rather differently from the ordinary courts, as the exercise of constitutional jurisdiction sometimes necessitates taking into account considerations which go beyond the purely legal and juridical. In other jurisdictions, on the other hand, the functions of a constitutional court are exercised by Supreme Courts. After the Second World War and with the adoption by the United Nations of the Universal Declaration of Human Rights, more specific emphasis began to be given, particularly in the post-war emergent states and within the context of post-war constitutions, to these rights. Many constitutional courts were given the specific task to enforce these fundamental human rights and to guarantee their observance by the state. It is trite knowledge, however, that constitutional courts do not operate in a vacuum: constitutional courts, like ordinary courts for that matter, are as efficient and as functional as the social, economic and particularly political context within which they operate allows them to be. On the other hand it is undeniable that strong independent courts, including constitutional courts, can play a leading role as catalysts in promoting social, economic and political development. Where this development occurs naturally and without the need of “judicial intervention”, it will more often be the case that such development will bring to the fore new and sophisticated issues of human rights.

Malta was a British Crown Colony from 1800 to 1964. During this entire colonial period, the Maltese courts and judiciary enjoyed an independence and stature which, I would submit, was unparalleled in the British Empire, with the exception of Britain itself and of those territories which had Dominion status. The reason was very much a social and political one. When in the very beginning of the nineteenth century the Maltese, having rid themselves of the French with the help of the British and of the Portuguese, placed themselves under the protection of the British Crown, the British found in Malta a fairly sophisticated – at least for that time – legal and judicial system. What is more, they also found that Malta had a reputable and influential “legal class” – persons trained in civil and canon law mainly in Malta but also in Italy and France, from whom judges and prosecutors had invariably been drawn for more than a hundred years previously. The British needed the help of these people, and of other “influential” sections of the population, like the clergy and the nobility, to ensure that the Maltese Islands could be transformed into a strategic military base. For this reason, although successive Royal Commissions regularly provided the necessary impetus for reform, the legal and judicial system was not “replaced” by a “British” system, but was allowed to “develop”. English common law was never introduced into Malta, although it undoubtedly played a part in influencing the development of Maltese law. The Maltese were allowed to retain (up till 1933) Italian as the language of the courts – a fact which also ensured that throughout the one hundred and sixty four years of British rule there were only two expatriate, that is English, members of the judiciary, and they were both Chief Justices: Waller Rodwell Wright (1819 – 1826) and Sir John Stoddart (1826 – 1838). Otherwise during this entire period all the British people in Malta – and there were thousands in view of the British military presence – were always subject to Maltese law, administered in Maltese courts by Maltese judges and magistrates (and, in the case of trial by jury, by Maltese jurors). Very early in the nineteenth century the basic principles guaranteeing the independence of the judiciary – security of tenure and security of financial remuneration – were introduced, and by the middle of that century the basic principles, as we know them to-day, guaranteeing a fair trail in both civil and criminal proceedings were also in place. Trial by jury was also introduced. During the entire period of colonial rule, the few cases coming up before the Maltese courts which today we would classify as “constitutional” or “human rights” cases dealt mainly with the extent of the powers of the Governor (especially his power to enact laws by way of “Ordinances”), with judicial review of administrative action, and with the distinction between “acta iure imperii” and “acta iure gestionis” and the immunity attaching thereto and nonresponsibility arising therefrom. One notable exception, however, was the case of the so-called Maltese Internees – a group of Maltese people (including the former Chief Justice, Sir Arturo Mercieca, who was illegally forced to resign by the Governor) who, after being interned, were ordered by the British Governor to be deported to Uganda in 1942 because it was alleged that they harboured pro-Italian sentiments and were therefore a security risk in time of war. Both the Civil Court and the Court of Appeal ruled against the Governor and held that the deportation order was illegal under both Maltese and Imperial law. Unfortunately in between the first decision and the decision by the Court of Appeal the internees had been placed in the hold of a steamship and transported to Alexandria, from where they continued their journey overland to Uganda. The decision of the Court of Appeal was very much a Pyrrhic victory for the deportees.

Although human rights provisions were first formally introduced to Malta in the Constitution of 1961, it was the Independence Constitution of 1964 – which is still, with some minor mendments, in force – which provided for the first time for the establishment of a new court, the Constitutional Court, which was to be composed of the Chief Justice and four other judges (in the early 70’s the other judges were reduced to two so that today this court is a three man court). The 1964 Constitution, in Chapter II thereof, provides for what it calls “Declaration of Principles”: for example Article 8: “The State shall promote the development of culture and scientific and technical research”. Or, more topical perhaps in Malta today, Article 9: “The State shall safeguard the landscape and the historical and artistic patrimony of the Nation.” Or Article 18: “The State shall encourage private economic enterprise”. But then Article 21 goes on to provide that the provisions of this Chapter “shall not be enforceable in any court, but the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making law.” The same 1964 Constitution then provided, and still provides of course, in Chapter IV for an enforceable Charter of Human Rights, based largely on the European Convention of Human Rights (but with some significant modifications) and on the models which in the 1960’s were being dished out by the Westminster Parliament through Orders-in-Council to several former colonies which were attaining independence. This is not to say that Malta, prior to 1964, or prior to 1961, was a country which was not aware of fundamental human rights – the Criminal Code, for instance, which dates back to the mid-1850’s, in the part dealing with criminal procedure, is replete with provisions intended to ensure a fair hearing in all criminal matters. This Charter of Human Rights is enforceable through the Civil Court of General Jurisdiction, with an appeal to the Constitutional Court. In fact, although the Constitutional Court’s jurisdiction extends also to matters dealing with the validity of laws and questions relating to the validity of general elections and of membership of the House of Representatives, ninety nine percent of its workload these last thirty years has concerned human rights applications, that is to say applications alleging violation of human rights. In 1987 the Maltese Parliament enacted the European Convention Act, by which the substantive provisions of the European Convention on Human Rights and of Additional Protocols were incorporated into domestic law, and the Civil Court of General Jurisdiction and the Constitutional Court were charged with the task of enforcing these substantive provisions – the idea being, of course, that if we can deal with certain issues at home it would save everyone the embarrassment of having to go to Strasbourg. As I pointed out earlier, there are some significant differences between the Charter of Human Rights in the 1964 Constitution and the substantive provisions of the European Convention, notable among these is the provision dealing with discrimination: whereas the Constitution prohibits discrimination on the grounds of race, place of origin, political opinions, colour, creed or sex, the European Convention, as all of you know, prohibits all kinds of discrimination in the enjoyment of the other rights and freedoms in the same Convention, and is not limited to discrimination based on sex, race, colour etc. Likewise, the provisions dealing with the right to the enjoyment of one’s property are substantially different: the Constitution provides some detailed rules regarding expropriation in the public interest; Article 1 of the First Protocol of the European Convention is couched in much more general terms which, again as I am sure most of you are aware, has allowed the ECHR to develop the notion of “proportionality” in matters of expropriation – a notion which the ECHR often applies also in the interpretation of other provisions of the Convention.

To go back to a purely Maltese context, the first point to note is that although the principles contained in the “Declaration of Principles” are per se unenforceable, yet the Constitutional Court has held that in interpreting the provisions in the Charter of Human Rights it is prepared to take into consideration these principles – in other words they are not directly enforceable, but may be of considerable importance in the context of interpretation. The second point is that a person applying to the courts for a declaration that his or her human rights have been, are being or are likely to be contravened (and for a remedy for that violation or to prevent the violation occurring) may invoke either the provisions of the Charter in the Constitution or the provisions of the European Convention, or both. The Constitutional Court in Malta has taken the view that even though some of the provisions of the Convention – now part of domestic law – appear to be in conflict with the provisions of the Charter, there is in reality no such conflict: the fact of the matter is that depending on the right which one is seeking to enforce, one of these two instruments may grant a wider measure of protection and redress than the other – a case in point, being, as I have said, the right of freedom from discrimination.

In the period 1970 to 1987 we have a different economic and political background. This was the time when the foundations for an economy not dependent on the presence of the British Armed Forces in Malta were being laid. Major industrial development was undertaken, key projects, like the setting up of the national airline and the creation of a container transhipment port, or freeport, were launched. But it was also the time when many felt that the Government was authoritarian and heavy handed. Recourse to the courts, including the Constitutional Court, both for judicial review and for alleged violation of human rights, began to be resorted to much more frequently. Government sought to restrict the right of judicial review, but the courts managed to skirt round the restrictions by applying the general principles of English Administrative Law. Cases coming up before the Constitutional Court – and beginning with the mid- 70’s the floodgates seemed to have opened – dealt principally with discrimination on the ground of political opinions, illegal arrest and detention, and degrading treatment while in police custody. There were some cases dealing also with expropriation, but the Constitutional Court was then very reluctant to go into, or to consider, the extent of the notion of “public interest” for purposes of expropriation. For some months the Constitutional Court itself, following the abstention of one judge, was not reconstituted by the simple expedient of the Minister of Justice not advising the President of Malta of who should be subrogated to replace the recused judge – today the Constitution provides for an automatic composition of the Constitutional Court in a similar situation, with the senior judge or judges automatically coming in from other courts to sit on the Constitutional Court. The height of all these political problems was reached in the mid-80’s when the Government sought to take over church run schools and church run hospitals. Constitutional cases against the Government were instituted by the Archdiocese of Malta. The turbulent spirit of the time is perhaps best epitomised by the cases instituted by a small order of staunch and mainly Irish and English nuns, the Little Company of Mary or Blue Sisters, who fought tooth and nail Government’s 6 attempt to take over their small hospital; and they eventually won the day in court even though they had already been unceremoniously deported from Malta after their work permit was not renewed.

The 1987 elections saw a change in the Government which had been in office since 1970. The period following, that is from 1987 to date, has been a period of economic development in a more tranquil political setting under both a Nationalist and a Labour administration. The new administration in 1987 immediately declared its intention to apply to join the European Union and, as already indicated, incorporated the European Convention into domestic law (incidentally Malta had signed up to the right of individual petition before the Strasbourg organs some months prior to the 1987 election).

Economic development over the last twenty years has brought its own type of cases before the Constitutional Court, whether as a direct or indirect result of this development. With the wider protection afforded by the European Convention and by the jurisprudence of the Strasbourg Court, the last vestiges of discrimination on the grounds of gender, particularly in the field of the acquisition of nationality, were removed by the Constitutional Court. Rent laws, dating to the immediate post-war period – which then required security of tenure for tenants in view of the lack of accommodation (because of the destruction wrought by the Second World War) – have been subjected to critical scrutiny by the courts, and in many cases the Constitutional Court has held that there was a violation of Article 1 of the First Protocol to the European Convention because, given the obtaining social situation, a landlord was being made to carry a disproportionate burden when it came to the balance between the rights of the individual and the rights of the community. The Constitutional Court has also declared that it will examine whether there was a real public interest involved in an expropriation of land by the State, or whether the public interest was being invoked merely as an excuse for something else. Immigration – not only illegal immigration but also legal immigration – has brought its own share of human rights cases. One particular case which comes to mind – the Zakarian Case, see copy of judgment attached – is of two Armenian kids – brother and sister of about 14 and 15 at the time of arrival in Malta – who left Moscow bound for London via Malta, with the intention of joining their aunt in London. They were refused admission into England, were sent back via the same route to Moscow, and they claimed political asylum while in Malta. The UN Commissioner for Refugees in Malta refused their application; they appealed to the Asylum Appeals Board which again refused their application, so they sought redress in court on the ground that if they were sent back to Armenia they would be subjected to inhuman and degrading treatment because of their parents’ involvement in political activities. The Constitutional Court held that it was not satisfied that if they were returned to Armenia these kids would face a specific, personal and 7 significant risk of ill-treatment amounting to inhuman or degrading treatment, and therefore there was no obstacle to their being sent home.

To-day the Constitutional Court in Malta, like in any democracy where the rule of law prevails, is at the forefront in securing and guaranteeing fundamental human rights. With the exception of those rights which admit of no limitation or restriction – like the right not to be subjected to inhuman or degrading treatment or punishment – Constitutional Courts often have to strike a balance between the interests of an individual and those of the community at large. In doing so, social and economic considerations may be relevant. Constitutional Courts can also play a leading role in reshaping the social configuration of a particular community. In doing so, they may be accused of being too conservative or too liberal. But then that is very much the fate of any judge in a democracy. Judges, and even more so, Constitutional Court judges, often need to bring together their experience from different branches of knowledge to ensure a proper administration of justice. As David Pannick wrote in his book Judges (O.U.P. 1987): “The qualities desired of a judge can be simply stated: that he be a good one and that he be thought to be so good. Such credentials are not easily acquired. The judge needs to have the strength to put an end to injustice and the faculties that are demanded of the historian and the philosopher and the prophet.” (more)