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The case of Charles Demicoli boasts of many firsts. It was the first Maltese case to have been decided by the European Court of Human Rights. It was the first case in which the Maltese Constitutional Court was rubbished internationally for turning into the accomplice of the violator of human rights, against the victim of the violation. It was also the very first case in which the Constitution of a European country was found to distress the basic principles of the European Convention on Human Rights.

Those were the firsts. It was also the worst. A constitutional court twisted all the constitutional rules to ensure that the tyranny of ruthless government smelt fragrant.

Demicoli was the editor of an Opposition satirical newspaper that pulled few punches when it came to poking fun at the injuries of the powerful and the foibles of government parliamentarians. One day his paper, Mhux (fl-interess tal-poplu) featured a tongue-in-cheek dressing down of two government Members of Parliament. He touched the untouchables, he shamed the exalted. Blasphemous nerve, no?

The Speaker dropped everything. He set in motion proceedings to haul Mr Demicoli before Parliament, to try him and to punish his ‘breach of privilege’. Parliament then claimed the power to put on trial and imprison people who thought it their right to cast some shadow over members of the House of Representatives. You upset them – they imprison you for two months and impose a hefty fine too.

Hold on. The Constitution states very expressly – and rather redundantly – that every person charged with a criminal offence has the right to be tried by an independent and impartial court. Mr Demicoli was being tried for a criminal offence (any offence that may result in imprisonment is, by definition, a criminal offence). And he was being tried by his political enemies. Were his political enemies the “independent and impartial court” mandated by the Constitution? Aren’t ‘courts’ defined as only those tribunals presided over by judges or magistrates? Is a trial by your political opponent a fair and impartial trial? If you are judged and condemned by the very victims of your ridicule and by those you have publicly roasted, are you getting a fair trial? Was that a fair trial or a political vendetta?

The answer was hardly rocket science, it could not be more obvious, no? It wasobvious to anyone. Everyone, that is, except the Constitutional Court and the Parliament of Malta.

On the day fixed for his fair trial by an independent and impartial Parliament, things didn’t look too cheerful for Demicoli. The prison Black Maria was, prominently and vindictively, already parked in the centre of the courtyard next to where the honourable members met – before they had even met. Demicoli took his human rights complaints to the constitutional courts, hoping, rather forlornly, to find there some sympathy for fundamental decencies.

The first court that examined his grievance ruled in his favour – his trial by Parliament would breach his fundamental human rights. Parliament went ballistic – what, we can’t even send our enemies to jail, what has the world come to? Parliament appealed this outrageous judgment to the Constitutional Court; which, surprise surprise, revoked the judgment of the first court and gave Parliament a blazing green light to imprison Demicoli.

The Constitutional Court saw absolutely nothing wrong, nothing disturbing in an eminently political body fancying itself a criminal court, to jail those it rather disliked. That’s freedom of expression and fair trial embracing each other. The Constitutional Court had grown quite fond of playing the government’s tune; it had rubber-stamped abuse after sicklier abuse, so find one good reason it should now change direction and do the decent thing.

I will explain briefly the legal contortions the Constitutional Court had to perform to be in line with the fundamental law of the land, the uncomplicated law that says that the government is always right.

According to our Constitutional Court, those human rights which are absolute and not subject to any limitation whatsoever, can still be limited when one has to practise little favours to the powerful. Welcome, tyranny

Our Constitution divides human rights into two classes. There are some human rights which are absolute and have no limi­tations or exceptions, while there are others that allow limitations to their enjoyment. Each human right has to be seen separately, and each limitation applies only to the particular right it is attached to.

To take an example, freedom of expression is a fundamental human right, but it is not an absolute right. Its enjoyment may be limited by law, when this limitation is reasonably required in the interests of defence, public safety, public order, public morality or decency, public health, or to protect the reputation of others.

Again, the right to enjoy freedom from arbitrary arrest or detention is a fundamental right, but the Constitution allows various limitations and exceptions. You may be lawfully deprived of your freedom in consequence of a judgment of the court, or on reasonable suspicion of having committed criminal offences, to prevent the spreading of disease, for the purpose of preventing unlawful entry into Malta, etc.

But then there are also some fundamental human rights that are so absolute that their enjoyment admits no limitation, exception or derogation. The right not to be subjected to inhuman and degrading treatment is one of them. Another is the fundamental human right to a fair trial by an independent and impartial court. You can have your freedom of expression limited for reasons of public morality or to protect the reputation of others, but the State cannot subject anyone to inhuman and degrading treatment in the interest of public morality or to protect the reputation of others.

The State can limit your enjoyment of your fundamental right to your private property when this limitation is in the public interest, but it cannot subject you to an unfair trial in any circumstance whatsoever, whether it is the national interest, or in the interests of defence or national security. The right to have your criminal charges tried fairly by an independent and impartial court is absolute and unlimited. It admits no exceptions or limitations. Always and everywhere you are entitled to be tried by an independent and impartial court.

Those rights subject to limitations, and their permitted limitations, are self-contained: each right has its specific limitations that apply to it, and to it alone.

In the Demicoli case, the Constitutional Court was faced with this impenetrable brick wall – there are no limitations at all to the right of a fair trial by an independent and impartial court. No problem, chuckled the court. We will mix and match. We will take the limitations tailor-made for other human rights, and apply those limitations to the right to a fair trial.

With those limitations we can play our little games of musical chairs – now a limitation sits here, and voilà, now it sits there. We will overlook the little detail that the right to a fair trail has no limitations whatsoever. We found those limitations in the shop next door. Parliamentary privilege can limit freedom of expression? Yes. It can limit the right not to be illegally detained? Yes. So we will just slip in that it can also restrict the non-restrictable right to have a fair criminal trial, and hope nobody notices.

These shameless acrobatics by the supreme court of the land, eager to lap up the vomit of the powerful, are among the most dangerous and treasonable delinquencies the Constitutional Court had committed that far.

According to our Constitutional Court, those human rights which are absolute and not subject to any limitation whatsoever, can still be limited when one has to practise little favours to the powerful. Welcome, tyranny.

It was a good thing for Mr Demicoli that, immediately after the Maltese Constitutional Court had delivered this stomach-churning judgment, Malta had activated its participation in the European Court of Human Rights. He petitioned that court to have a second look at this ultimate embarrassment by the supreme court of Malta. I handled that case for him.

His defence team had no problem at all in convincing the European judges that Mr Demicoli was right and that Parliament, and its nauseous accomplice, the Maltese Constitutional Court, were wrong – that was the easy and breezy walkover.

The problem in the Strasbourg Court was to get them to believe that Parliament in Malta actually claimed the right to lock its opponents up in jail, that the Constitutional Court of Malta found that to be absolutely delightful and that both had no qualms in being so insolently shameless about it. The judgement of the European Court certified all of this.

Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.

The report in The Times of August 28, 1991. The European Court of Human Rights decided that parliamentary privilege proceedings against Charles Demicoli, editor of Mhux fl-interess tal-poplu, violated his human right to a fair trial by an independent and impartial tribunal.