The Constitution of Malta enshrines the fundamental right of any person not to be compelled to perform forced labour. This comes with a few exceptions, like “labour required in the event of any emergency or calamity that threatens the life or well-being of the community”. The way our courts have applied this provision has made a total mockery of this fundamental right. That is only a kinder way of saying they have made a total mockery of themselves.
The bakers of the islands were working at a loss, owing to the controlled price of Maltese bread and to increases in the costs of flour, labour, energy, etc., as certified by international public accountants. Rather optimistically, they believed they should not be working at a loss, and asked for a small increase in the price or subsidy of the traditional Maltese loaf.
Government refused, and the bakers, finding the situation oppressive, went on strike. Government passed urgent legislation ordering them back to work under harsh criminal penalties. The police instantly issued criminal charges against the bakers unwilling to work at a loss. The accused contested this legislation in court, claiming that it amounted to the imposition of forced labour under threat of criminal sanctions.
Meanwhile, the production of all other types of bread carried on in full swing. There was no shortage of bread, only of the traditional loaf. In Parliament, the minister actually boasted that so much bread was on the market that some of the alternative bread was remaining unsold. Hardly apocalypse now, vultures pecking at heaps of famine-stricken corpses decaying by the wayside.
The constitutional court of Malta found that the scarcity of one type of fattening carbohydrate constituted “an emergency or calamity that threatened the life or well-being of the community”. Now the right sort of Maltese judge would say that, wouldn’t he? In other jurisdictions, judges not snug in the government’s pockets had interpreted a similar exception in the natural sense of the words: emergency or calamity means catastrophic hurricanes, wars, sieges, earthquakes, floods or other natural calamities that genuinely threaten the life of the community.
Ah, but not in Malta, where some judges see their role as the gowned enablers of the powerful when the craving for battering human rights becomes irresistible. The temporary suspension of one type of loaf was obviously that “sudden overwhelming national disaster” when the State can impose forced labour. What?! Bezzun instead of ħobza?! National calamity! It threatens the life and wellbeing of the community! Suspend human rights instantly!
Whether through ignorance, the lust to be deferential, or a felicitous combination of the two, the Maltese court relied on the European case of Iversen. Dentists in Norway had challenged a law that obliged them to provide services in far-away regions not reached by dental services, and lost. Hardly the right case to be quoted. The European doctrine fitted the Maltese facts like a left shoe fits a right foot.
The majority in Strasbourg never found “a state of emergency” that justified forced labour, like Mr Justice Nostradamus found in Malta. They were swayed in Norway’s favour by the consideration that the dentists were offered very lucrative conditions of service. In Malta, bakers were being threatened with incarceration unless they agreed to work at a certified, and uncontested, net loss. So where did the court discover any relevance in Iversen? But the government had to be judicially rewarded for breaching human rights – and in Malta it is rarely problematic to find the right judge for that job.
That far, the Strasbourg Court had two occasions to consider whether a ‘national emergency’ existed which justified the curtailment of some human rights. In Northern Ireland, the widespread sectarian violence, the proliferation of conflicting secret armies, the fact that the IRA was operating from outside the state territory and the alarming increase of bloodshed and terrorism were deemed to justify a genuine ‘emergency or calamity’.
On the other hand, in Greece, the impending threat of an armed Communist take-over, the breakdown of public order and the meltdown of constitutional government were not considered an ‘emergency or calamity’ sufficiently grave to justify a limitation of some human rights. But the Maltese court found that the scarcity of one type of sliced ħobza constituted a national emergency or calamity that empowered the government to ride roughshod over human rights. Greece was to bear the threat of civil war stoically, because the Greeks had been spared the appalling catastrophe of having to review what bread to have at breakfast. Thank the Maltese judiciary for always being there for you when the defenceless are downtrodden.
What?! Bezzun instead of ħobza?! National calamity! Suspend human rights instantly!
The second time the ‘emergency’ escape clause came under scrutiny was during the doctors’ dispute. The doctors’ union had ordered very limited industrial action, mainly directed at the outpatients’ department, with responsible fall-backs for emergencies. Government responded by passing two laws. The first barred doctors from perpetually working in private hospitals unless they stopped industrial action instantly and undertook never to follow instructions from their professional union.
The doctors impugned this law in the constitutional courts on various grounds. Among others, that it violated their human right not to subjected to forced labour. Government reacted by physically locking out the doctors from state hospitals. A second law dismissed from service the 130 doctors who had taken part in the partial industrial action.
Meanwhile, the government recruited other Maltese and foreign doctors, repeatedly claiming that the situation in the hospitals was well under control. In fact, the government incessantly reiterated that the state medical services had improved considerably since the lock-out of the doctors. State of emergency? Not a whiff of it, boasted the government.
When the doctors’ case came up for hearing, the defendant government did not justify the imposed forced labour because of a state of emergency. Not at all. It was the presiding judge who spontaneously, and dutifully, raised this defence in favour of the government, without any of the parties having asked him to. In fact, the government was consistent with its own propaganda that the dismissal of nearly all the doctors from government service had resulted in marked improvements to health care.
The judge fell in love with that defence of government, his fearless genius had hatched, and, amazingly, actually agreed with himself. With no one asking, he found that the nation had been hit by a “sudden overwhelming disaster”, so no silly talk of human rights, please.
What the court had failed to consider was: if emergency there really was, what had caused it? Was it the restricted industrial action of the doctors, limited to a few outpatients’ services and backed by voluntary emergency facilities from the doctors? Or was the emergency caused by the high-handed dismissal en masse by the government of all the doctors? Had the doctors been allowed to continue their minor industrial protest, without having first been locked out, and then booted out of government service, no emergency, mini or maxi, would have arisen.
This judgment mastered new heights of juridical amorality. The government creates a perfectly avoidable crisis by first locking out, and then dismissing the doctors from state hospitals. And then it benefits from an emergency of its own making, by deleting the human rights of its victims. The court, absent-mindedly no doubt, visited the punishment not on the offender but on the victims of the offence. You would have thought that the government created the crisis, the government pays the price. Yeah, but then you are not a Maltese judge, are you?
The doctors were stripped of their constitutional prerogatives, because their persecutor had put patients’ life in danger by vindictively locking them out from the hospitals. Doctors were denied their fundamental human rights not to be subjected to forced labour – because their bully employer had, by law, deprived them of their right to work. The Maltese court endorsed this total inversion of judicial ethics. Punish the victim, reward the offender – isn’t that what human rights are about? The judge overdosed on abjectness.
On appeal, the Constitutional Court distanced itself from this barrel of puke. But then, to no one’s surprise, it again became complicit with the government. It found that the Constitution of Malta distinguishes between forced labour and compulsory labour, and, sadly for the doctors, what the law exacted from them was compulsory labour, not forced labour.
As compulsory labour, the judges discovered, was permitted by the Constitution, everything was hunky dory, and the government could dismiss the doctors and ban them from ever working in private clinics up to their funeral, no prob. But they could again work as doctors after they died. This was the polluted age of the Constitutional Court.
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.