Freedom of association

Article 11 of the European Convention of Human Rights, similar to article 42 of the Maltese Constitution and article 22 of the United Nations International Covenant on Civil and Political Rights, provides that:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

This right applies to 'everyone'. Does it however apply to all groups or merely to 'trade unions'? Are political parties, for example, included in the protection of this right? The European Court of Human Rights (ECtHR) considers that although Article 11 refers to "freedom of association with others, including the right to form... trade unions..." the conjunction "including" clearly shows that trade unions are but one example among others of the form in which the right to freedom of association may be exercised. Moreover, political parties are a form of association essential to the proper functioning of a democracy.

It is in fact the formation, association and expression of any group which is necessary in a proper democracy, even when an association, through its activities, jeopardises that State's institutions. Moreover, the protection afforded by freedom of association lasts for an association's entire life. Thus, any limitation to this right must not be discriminatory and must be based on fair and just grounds according to the particular case of the State in question and the current situation at the time in the respective country.

This right does not end with the mere freedom to form a party/association, but also includes being allowed to freely carry out the group's activities. What is the use of having the presence of different political groups in Zimbabwe, if any form of activity or expression of such parties is suppressed even before they reach the population?

Similarly, the Turkish government's suppression of expression and association of Kurdish groups for reasons of social security is not a justification, but a mere attempt to camouflage the suppression of the Kurds' freedom of expression and association. The ECtHR will only allow the suppression of this right when there are seriously compelling and convincing reasons.

Thus, the principle is that people may freely assemble and associate with each other. However, like freedom of thought, conscience and religion, and freedom of expression, this right is not only a right for all individuals, but it is a right whose manifestation necessarily affects others.

Therefore, there is a need for its monitoring and, as a result, limitations and restrictions need to be imposed when these are found to be necessary.

The right of a state to condition the exercise of this freedom is not absolute, but is subject to the proper protection of human rights. The ECtHR held, in the Turkish Communist Party case, that when the Court (ECtHR) carries out its task, its objective is not to substitute its own view for that of the relevant national authorities, but rather to review the decisions of states in the exercise of their discretion.

This does not mean that the ECtHR has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient".

In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.

It is in fact with severe scrutiny that the ECtHR monitors any limitation of this right, as it has variously argued that the right of citizens to be able to form a legal entity in order to act collectively in a field of mutual interest, is one of the most important aspects of any free and mature society.

The way in which national legislation enshrines this freedom and its practical application by the authorities reveals the state of democracy in the country concerned.

Freedom of association is also wholly linked with freedom of thought, conscience and religion, and freedom of expression. In fact, the protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association.

Thus, the proper protection of one brings about the better protection of the other. A contrario sensu, the violation of either will necessarily bring about the restriction of the others. They reinforce and strengthen each other and may even adversely affect each other.

It is thus sometimes necessary for states to impose restrictions on freedom of association, such as the duty to request for a permit to form an association or the requirement to be given authorisation to hold a demonstration.

It would therefore be wholly justified for a state to discontinue a wholly peaceful and non-violent expression of this freedom if such prior requirements are not fulfilled. This is because this freedom, in particular, may disturb the public peace, so that the rights of some will always come into conflict with the rights of others.

The measures adopted to stop the expression of this right may not, however, be violent and in violation of other rights, such as that of arbitrary arrest, detention, torture and life.

Thus, the recent killing of 14 demonstrators in the Pays-Bas region of the Democratic Republic of Congo was wholly unlawful, maybe not in its basic aim of stopping a violent assembly, but necessarily and undoubtedly in its use of violence. The means used were not proportionate and legitimate to the ultimate aim intended in a democratic society.

Considering the domestic scenario, a case in point is the 1977 case Dr Walter Cuschieri et vs Prime Minister, in which the applicants' claim that they enjoyed a constitutional right to strike was rejected. In this case, the MAM (Medical Association of Malta) ordered strike action in government hospitals. By virtue of Act XX of 1977, parliament prohibited medical practitioners who were either public officers or government employees to practise their profession in private hospitals or clinics.

The applicants contended, among other things, that this meant that government doctors who had participated in the industrial action had to sign the declaration formulated by the Minister which in practice meant a renunciation of their right to strike.

They claimed a violation of their right to freedom of association, freedom from forced labour, freedom from discrimination (in this case political), and a violation of their right to work.

In its judgment, the Court stressed that the applicants were public officers whose services in the public sector were so essential that they demanded continuity to the extent that the government had the right to forbid strike action or place it under such restrictions that it lost its original meaning and force.

The court, besides pinpointing that a legal and not a constitutional right to strike existed, added that had there been a constitutional right to strike, the escape clauses to the right of freedom of association would have covered the law in question, which prohibited striking doctors from working in private hospitals unless they returned to work.

Thus, the laws were considered as "reasonably justified in a democratic society". Interior Minister Tonio Borg, in his comprehensive LL.D. thesis entitled Public Limits to Fundamental Human Rights: A Study of Maltese Decisions, is rightly critical of the fact that the Court should have at least entered into "such questions as the substantive or procedural reasonableness of the law, and the general meaning of the words 'reasonably justified in a democratic society' ".

The Constitutional Court subsequently held that the law in question conformed to the principle of self-defence. But Minister Borg remarked "does the fact that there is no constitutional right to strike imply that any punitive measure can be imposed on striking employees"?

He adds that "it is unfortunate that the Constitutional Court did not make specific reference to the principle of proportionality" and concludes that Act XX of 1977 "indirectly contravened Articles 42 and 42 of our Constitution".

Another two important cases were Police vs Ganni Camilleri and Mgr Philip Calleja vs Inspector Dennis Balzan which dealt, inter alia, with the right of the Executive to impose restrictions on freedom of assembly in the interest of public order.

Freedom of assembly is also regulated by the Criminal Code (Section 68 {1}), which stipulates that unlawful assembly constitutes a criminal offence which carries a punishment of three days to three months imprisonment or to a fine (multa).

Assemblies become unlawful as soon as the participants form the purposes of committing an offence without the need of an actual or attempted commission of an offence.