Rule of law – for the record

Mark Anthony Falzon’s contribution (‘Government by magistrate’, The Sunday Times of Malta, July 30) made interesting reading. Indeed, the courts of law are the bulwark for the protection for our rights and freedoms and the rule of law. On some occasions they miserably failed to do so.

For instance, it was only in 1988 that the courts recognised a fundamental right to one’s own home.

In 1977, a law which perpetually prohibi­ted striking government doctors from exercising their profession in government hospitals was deemed to be perfectly in order. Similarly, a dismissal en masse of public officers by legislative and executive diktat was deemed to be in line with the Constitution. But on other occasions, such as in the Church schools case, the courts rose to the occasion and refused to allow any challenge against any of its members, on the grounds that the highest court of the land had always to be constituted, thus thwarting a vile attempt by the Executive to leave the Constitutional Court unconstituted.

Where I differ in the analysis offered by Prof. Falzon is his view of the actions and measures of the post-1987 Nationalist Administration, belittling its achievements.

The first post-1987 Nationalist administration revolutionised our way of thinking with regards to human rights and in terms of the relationship between government and citizen

After 16 years in Opposition, the 1987 Fenech Adami administration hit the ground running. Its first law, enacted in August 1987, was the European Convention Act, successfully piloted in Parliament by Guido de Marco. In virtue of the incorporation of the convention in Maltese law, the immunity that the main legal codes of Malta enjoyed from the human rights provisions of the Constitution came to an end.

Owners of expropriated land could now challenge not only the compensation offered to them but also the public interest, or lack of it, on the basis of which their property was compulsorily taken possession of by the State.

No law could eliminate a court’s discretion in granting bail to any person charged with a criminal offence.

The right to send one’s children to the school of one’s choice and that of free and fair elections were guaranteed.

And any person in Malta could seek redress before the European Court of Human Rights if not satisfied with a decision of the courts in Malta.

These measures were accompanied by ratification of international human rights conventions that established a standard by which any Maltese government had to be measured. They provided for regular inspections of places of detention and visits by human rights institutions to report on the situation of human rights in Malta.

A Permanent Commission against Corruption was established by the then Justice Minister Guido de Marco, which led in one case to proceedings being taken against a former Cabinet minister. Police officers accused of torture were ordered to pay damages when proceedings were instituted against them. Others, involved in the Pietru Pawl Busuttil frame-up, faced charges of perjury and obstruction of the course of justice. Those who committed electoral violence during the 1987 elections were duly prosecuted, as were those who ransacked the law courts on June 19, 1987.

Of course, any administration commits errors, and one can always criticise any government for not doing enough. But the legal earthquake deliberately caused by the new administration to permanently change the legal landscape as regards human rights, cannot be underestimated.

A corrupt police force was transformed into a dignified force in a demo­cratic country. Police officers were given back their police pension over and above the National Insurance pension.

A Commission for the Investigation of Injustices introduced for the first time in Malta the concept of ‘injustice’ as different from ‘illegality’: a remedy would be provided not only where an act was unlawful but also if unjust. The commission acted as precursor to the eventual  establishment of the Office of the Ombudsman in 1995.

So my point is that the first post-1987 Nationalist administration, consisting of only one former Cabinet minister, revolutionised our way of thinking both with regard to human rights and also generally speaking in terms of the relationship between the government and the citizen. Government was made subject to law; privileges and immunities in its favour were severely reduced.

Taking your government to court became considered a natural phenome­non of democratic life.

All this was due to the brave, energetic work of the first Nationalist ministers after 1987. For the record, their achievements have to be remembered, not denigrated.

Tonio Borg is a former deputy prime minister of Malta and European Commissioner.

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