Rights Bill finds unanimous support

A Bill empowering the Prime Minister to delete sections of the law found to be inconsistent with the Constitution and the European Convention of Human Rights earned the support of both sides of the House yesterday. The Bill provides that the Prime Minister may exercise his powers through legal notices within six months of the final judgment by the Constitutional Court or the European Court for Human Rights.

During yesterday's sitting, Nationalist MP Mario de Marco urged the government to consider adopting elements of the procedure followed by the British Parliament in similar circumstances.

He said that whereas the 1988 Human Rights Act in the UK included procedures how the minister may issue remedial orders to both amend or strike off primary and subsidiary legislation which the European Court found to be incompatible with the human rights convention, this Bill would authorise the Prime Minister to delete sections of the law only at his discretion.

Any amendments, therefore, would have to follow the normal parliamentary procedure, thus respecting the principle that Parliament should consider all proposed legislation.

In the UK a distinction was made between urgent and non-urgent cases. In non-urgent cases, a remedial order could not come into force before it was approved by the House of Commons and the House of Lords.

In urgent cases, the remedial order could be brought into force before being presented to Parliament, but would not remain in force unless approved by both Houses of Parliament within 120 days of it being issued.

Therefore in both cases parliamentary approval was needed.

In the non-urgent cases, the draft remedial order was tabled in Parliament accompanied by an explanation of the incompatibility of the law it would remove or correct, and how the situation was being remedied.

Sixty days were allowed for the Joint Human Rights Committee to study the draft and give its recommendations to the House. The draft order would then be presented in the form of a motion to the Commons accompanied by the committee's recommendations.

An urgent remedial order, while coming into force immediately, had to be tabled before Parliament as soon as possible with an explanation of the incompatibility of the law which it was removing or amending and a declaration on the reasons for urgency.

After 60 days, the minister had to table a declaration summarising representations made about the order and any amendments he may consider suitable. The Human Rights Committee then had to report on this order and recommend whether it should be approved by resolution in its current form, modified or rejected.

In both cases, therefore, remedial orders in the UK were scrutinised by Parliament and its human rights committee, Dr de Marco said.

Malta lacked such a committee and this Bill was proposing that orders could be issued by the Prime Minister in the form of legal notices, which were subject to a 28-day period during which an MP may file a motion in Parliament to annul them.

In a sense, therefore, Malta had adopted the procedure used in the UK for urgent cases.

What was better in the UK system was the obligation imposed on the minister to enclose an explanation of the reasons for the order, something which should also be considered in Malta. Furthermore, one should consider enabling the House Committee for the Consideration of Bills to examine the legal notice issued by the Prime Minister, possibly during the drafting stage. This would be a similar procedure to that followed by the scrutiny committee of the Foreign Affairs Committee which considered draft EU legislation and explanatory documents.

The legal notice would then be presented in the House under the existing procedure.

In this way one would have a consultative process to justify the Prime Minister's action to repeal part of a law.

Concluding, Dr de Marco said this government had an unrivalled track record of protecting human rights. The first Bill which the 1987 Nationalist government had moved had actually incorporated the European Human Rights Convention into domestic law.

The Bill currently before the House was well-intentioned as it would give immediate effect to decisions by the European Court. His suggestion was for the process to be more consultative.

Replying in his winding up, Justice Minister Tonio Borg said this Bill may be developed further in the committee stage but if one was to consider introducing the procedures followed in the UK, one should also consider, in agreement with the opposition, the possibility of broadening the Bill so that laws or sections of laws may not just be deleted, but also amended in strict conformity with the judgments of the Constitutional Court or the European Court of Human Rights.

As it were, the Bill already included several conditions. The Prime Minister was being authorised solely to delete laws or parts of laws which violated human rights and this authority could only be exercised within six months and in conformity with the judgment of the courts.

Earlier in the debate Jason Azzopardi (PN) described the Bill as a giant step for the better defence of human rights.

He said the law courts currently faced a dilemma over the application of sections of the law which had been declared unconstitutional or in breach of the European Human Rights Convention but which were still on the statute books.

Some judges and magistrates argued that for as long as Parliament did not amend or repeal laws, their duty was to apply them.

He did not agree with this interpretation. Application of a law which had been declared as violating human rights would make the courts accomplices in the violation of those rights.

The second school of thought in the law courts, Dr Azzopardi said, was that judges and magistrates should not apply laws or sections of laws which were declared unconstitutional, even if they were still on the statute book.

His difficulty with this Bill, Dr Azzopardi said, was over what would happen if the Prime Minister did not exercise his authority, within the six months allowed, to delete the legislative clauses found to be inconsistent with the Constitution or the European Human Rights Convention.

Such a vacuum, he said, should not be allowed. He suggested that Parliament should set up a committee to review and propose amendments to laws or sections of law which were found to be in breach of the constitution or the convention.

There were at present several sections of law which had been declared unconstitutional or in violation of human rights, but which had still not been struck off or amended.

Among them were sections of the drugs law denying the accused the possibility of bail for 20 days, and also providing that an accused person could not plead that he had no knowledge that the packet he was carrying contained drugs.

There was the recent case, decided in Strasbourg, where a Maltese man, Maurice Mizzi, was found to have been denied his human rights because of certain clauses in the civil code limiting paternity tests.

Also declared as being in violation of human rights was a section of the Criminal Code which provided that a person found to have violated bail conditions could not file a fresh application for bail.

This sections of the law had important consequences, Dr Azzopardi said. One could have a situation where an innocent person could not mount a proper defence to prove his innocence. Denying bail also meant that innocent persons could end up behind bars possibly for years, awaiting trial.

All this underlined the need for laws found to be inconsistent with human rights to be immediately deleted or amended, Dr Azzopardi said.

Indeed, the government should also consider the creation of a fund to compensate persons kept in prison when they were innocent.

Dr Azzopardi also saluted outgoing European Human Rights judge Giovanni Bonello for his wisdom and his long track record in defence of fundamental rights.

Josè Herrera (MLP) said he agreed with what Dr Azzopardi had said, including his views about Dr Bonello. He admitted that past Labour governments had made mistakes, but it was also worth noting that it was a Labour government which had nominated Dr Bonello to the European Court, thus recognising his service.

He said several judges and lawyers also deserved to be praised for standing firm in the defence of human rights, even at the risk of irking the British colonial government and, subsequently, the Maltese government.

Among them were Sir Arturo Mercieca, Maurice Caruana Curran, Stephen Borg Cardona, and his father Joe Herrera.

Dr Herrera also praised the minister himself for his work as a human rights lawyer.

He said that Malta's judicial system was, in theory, constituted in a way which effectively upheld human rights. Before it adopted the European convention, Malta already had a Constitutional Court. But there was a big difference between theory and what happened in practice.

For decades, only a few Maltese judges and magistrates had the stamina and guts to contradict the executive in cases where there was a blatant breach of human rights.

This happened throughout the 1960s, 1970s and 1980s, under both Labour and Nationalist governments. It was a tragedy that Malta's illustrious judiciary had a lot of powers which it did not always exercise.

Malta followed the British system where judges had managed to expand their remit of scrutiny. But in Malta the opposite was happening. It was disappointing to see that it was close to impossible to win a case against the government. In the 1960s, there were only two cases where decisions by the executive which had aggrieved citizens were overturned by the courts. In the 1970s there were another two and in the 1980s there were three or four.

It was extremely difficult for a judge to decide upon issues which could shake the government politically, and that was why members of the judiciary who had the courage to contradict the executive in the past had to be lauded publicly.

The PN always tried to paint the MLP as a party which did not uphold human rights and intruded in the workings of the courts. It was the PN in government, however, which had changed certain laws when it was displeased by decisions. The PN accused the MLP of breaching human rights when it sat on the opposition benches, but it had also done everything possible to tie the hands of the judiciary when elected to government.

Reacting to Dr Herrera's comments in his winding up speech, Dr Borg defended the government's human rights record recalling that whereas the adoption of the European Human Rights Convention was the first act of a PN government, it had taken the previous Labour government 16 years to actually sign the convention.

It was also a PN government which created new mechanisms to investigate injustice, such as the Commission for the Investigation of Justice and the Office of the Ombudsman. Under a Labour government, on the other hand, the courts had been attacked both physically and morally and judges which displeased the government had been moved around.

The present government also introduced new rights to protect the people, such as in the case of abuse by the police.

Today, while the PN had enacted laws which increased citizens' rights on various levels, Labour's plan on justice was non-committal and did not contain practical measures, Dr Borg said. The Bill was then given a second reading.