Bold decisions ahead

From a private international law perspective, it has always been debated whether treaties rectified by the Maltese parliament constitute part of our domestic law.

Fortunately, as a general rule, our Government adopts certain procedures to circumvent such difficulties. The practice is as following. Our Government signs an international treaty, and then embarks on a process, which usually takes a number of years, in order to align our national laws with the treaty in question.

Once this process is eventually completed, the treaty is put to parliament for ratification. Our Parliament would therefore, in practice, be ratifying a treaty which would have already been practically implemented for reasons in our own domestic legislation.

On the other hand, however, the issue is very different indeed when we speak of treaties signed between European member states. Here it would be interesting to refer to Article 3(1) of the European Union Act, Act 460 of the Laws of Malta.

Of importance we find the following, “From the first day of May 2004, the treaty and existing and future acts adopted by the European Union shall be binding on Malta and should be part of the domestic law thereof under the conditions laid down in the treaty”.

From this, it therefore results, that the Lisbon Treaty among other matters, is to be considered in an unequivocal manner, as part of our domestic law. It is interesting to note that the said treaty includes the Charter of Fundamental Rights of the European Union.

The document guarantees 54 basic fundament human rights, making it far more comprehensive and far wider in scope, than the fundamental human rights enshrined in our Constitution, and even the European Convention of Human Rights itself.

Furthermore Article 53 of the legal instrument makes it clear that this charter should not in any way be interpreted as to restrict or adversely affect human rights as contemplated for example, in the Euro-pean Convention for the Protection of Fundamental Human Rights.

In examining the relative charter, we immediately note, for example, how this guarantees certain rights not previously directly considered.

It would be worth mentioning a few; we find the right concerning the protection of personal data, the right to marry, the right to freedom of information, the right to choose an occupation and engage in work, the right to conduct business, the right to asylum, to right of integration of persons with a disability, the right to proportionality between criminal offences and penalties, and many other innovative principles.

On the other hand, when we consider our own local legislation, we will unfortunately discover that our Parliament has not as yet provided the necessary legislative framework to encompass all these newly affirmed basic rights, and it will prove to be no mean feat for our Parliament to do so.

The debate will therefore eventually be whether our courts should be obliged to uphold these rights even when they are not specifically catered for in our legislation. These are pleasures yet to come.

To date in Malta, this charter has been generally ignored by the legal profession who might still be considering the said charter as having mere political ramifications.

In fact, all constitutional applications being filed to date are still being based upon the rights enshrined in our Constitution and European Convention on Human Rights.

It will therefore be highly interesting to see what attitude our courts will take in the eventuality that our citizens will start to seek redress under the said charter.

Undoubtedly certain practices today and certain bits of legislation certainly do not appear to conform to what is hereby being guaranteed.

It is one thing for our Government to assert the European ideal, and another matter altogether to put in practice the liberal ethos of the Union.

Jose Herrera is Labour spokesman for Justice.


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