Two months ago, this newspaper carried a most interesting two-page interview with Chief Justice Emeritus Vincent de Gaetano, who is now a judge at the European Court of Human Rights. He deplored the fact that general public awareness of what fundamental human rights entail in practice is lacking in Malta.
“There is a lack of serious discussion,” he said, “at various levels of society.” In a tactfully understated manner, he went on to say: “One comes across an almost flippant [sic] attitude in discussions on such issues as immigration or refugees, or the way appointments are made to government boards, or the length of judicial proceedings, or the way criminal investigations are carried out.”
For “flippant”, perhaps he might have more accurately substituted “wilfully ignorant” on immigration and refugees; “corrupt and irresponsible” for appointments to government boards; and“utterly unacceptable” on the length of judicial proceedings.
Malta joined the Council of Europe 50 years ago. It acceded to the European Court of Human Rights a year later. Joining the Council of Europe and subsequently signing the European Convention on Human Rights (albeit 37 years later) were part of the process which culminated with Malta’s accession to the European Union – a pivotal moment in its history affecting not only its economic and international security, but also providing added safeguards to Maltese human rights.
Human rights are those rights which are inherent to all human beings. All are equally entitled to them without discrimination. These rights are interrelated, interdependent and indivisible. Universal human rights are guaranteed by law in the form of treaties, general principles, and other sources of international law. The principle of the universality of human rights is the cornerstone of international human rights law.
This principle, first expressed in the Universal Declaration of Human Rights in 1948, has been stressed in numerous declarations, resolutions and conventions since then. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process.
Despite the protection offered by the Convention in the last 29 years, why do Maltese citizens tend to be so complacent about the fundamental importance of human rights?
As a quick glance at Chapter IV of Malta’s Constitution illustrates, all human rights are indivisible whether they are civil and political, or economic, social and cultural. The chapter in the Independence Constitution, entitled “Fundamental Rights and Freedoms of the Individual”, sets down clearly those Maltese human rights safeguarded under the Constitution.
The protection of right to life. Protection from arbitrary arrest or detention. Protection from forced labour. Protection from inhuman treatment. Protection from deprivation of property without compensation.
Why do Maltese citizens tend to be so complacent about the fundamental importance of human rights?
Protection for privacy of home or other property. Provisions to secure the protection of the law. Protection of freedom of conscience and worship. Protection of freedom of expression. Protection of freedom of assembly and association. Prohibition of deportation. Protection of freedom of movement. Protection from discrimination on the grounds of race, sex, gender, religion or sexual orientation. These are all present.
Tied closely with Chapter IV of the Constitution, and preceding it, is Chapter 2. This lays down the Declarations of Principles, which by their nature are closely allied with human rights. On examination, however, the Declaration of Principles in Malta’s Constitution are a list of economic, cultural and social values – ranging from promotion of culture, to protection of work, and others - which the State should respect when enacting legislation. They are akin to civil rights, but under our Constitution currently have no standing in law and place only a moral, not a statutory, obligation on governments and lawmakers.
These principles allow human beings to live their lives with dignity, equality and fairness. They cover the right to work, the promotion of culture, the safeguarding of the landscape and historical and artistic patrimony, hours of work, rights of women workers, the minimum wage for paid labour, encouragement of private economic enterprise and the protection of artisan trades and encouragement of cooperatives – many of which I suspect have been inserted by Maltese administrations as a sop to their political supporters. They are essentially statements of values, not rights, as they are currently guiding principles which are legally unenforceable, whereas rights are intended to be binding and enforceable.
Perhaps the answer to the question about Maltese complacency on human rights lies in making the case for substituting these values, or adding to them, with a list of principles which should be binding upon the State if they are considered to be fundamental – as I believe they are - to good Constitutional governance.
Moreover, a number of constitutional law principles which were previously not enshrined in the Constitution should be revisited with a view to their possible incorporation to strengthen the Constitution and to ensure that the rights of citizens are better protected.
Such matters as the principle of the separation of powers; the principle of the rule of law; the independence of the judiciary; the anonymity of the public service; and the principle of individual ministerial responsibility are now so fundamental to the quality of our governance as to constitute an intrinsic part of our civil and human rights.
In all advanced countries, the state and its institutions today are called upon to respect the citizen. The modern philosophy in Constitution law-making is that State organs and institutions should be established with the specific purpose of serving the people, and not vice versa. State institutions have a duty of care. When they harm the citizen they should make good for injuries suffered.
It may therefore be argued that the following principles should also be incorporated into the Constitution as part of Maltese civil rights: the right to a good administration; the principle of openness and transparency of government; the right to protection of minorities; the right to protect privacy, including access to ICT; the right to access to government-held information (freedom of information); the right of citizens to an adequate remedy against the public administration; the rights of children, including the right to grow up in a safe, protective and healthy environment; and the rights of the elderly, including the right to retirement benefits and an environment to encourage healthy ageing.
The rights of the vulnerable, disabled and disadvantaged, including the rights of prisoners; the right to protection from gender, sexual, racial or other discrimination; the right to a healthy environment; inter-generational equity in the economic, social and environmental spheres and incorporation of the principles of sustainable development; the principle of subsidiarity; the principle of equality; the principle of fairness; the principle of accountability of the public administration; and the principle of good administrative process for administrative tribunals.
Human rights are fundamental. As citizens we should be prepared always to stand up for our human rights and the rights of others and not to look the other way if confronted by abuse. But we should also be considering whether as part of the long-promised, and long-awaited, review of the Constitution by the government in a Constitutional Convention there are a number of principles – or civil rights as I prefer to refer to them – which should be incorporated in our Constitution as binding on governments and enforceable in law.