The best thing that happened to human rights in Malta was the European Court of Human Rights in Strasbourg. Perhaps the worst was how the Maltese courts misunderstood the European Convention on Human Rights on an industrial scale.

The Constitution of Malta lays down that the constitutional courts have two functions. Firstly, to prevent the violation of human rights when they are likely to be breached; secondly, to redress a violation once it has occurred. This is stated very expressly by Article 46. It should be obvious that, when it comes to violations, to prevent is more crucial than to redress. Better no violation at all than allowing a violation to take place, and then see if anything can be done about it. Who believes it is preferable to let ships sink, and then fret about how they can be resurfaced?

That is the Constitution of Malta. The European Convention of Human Rights, on the other hand, works to a wholly different logic. It is only concerned with redressing human rights that have already been violated by the Member States.

Why this huge difference between the national Constitution and the international Convention? Simple: the Strasbourg court only functions by invading national sovereignty, and will do that exclusively as a very last resort. It only overrules domestic authorities once the national State has violated human rights and has done nothing to remedy that violation.

Only most exceptionally does the Strasbourg court intervene to prevent a threatened violation of human rights, in desperate and urgent cases, by granting what are called ‘interim measures’ to stop an imminent violation of human rights. When it does this, it is assaulting national sovereignty – before having even established that the accused state is at fault. That explains its extreme reluctance to interfere with threatened violations of human rights. Malta tasted this exceptional power when the Strasbourg Court ordered the instant reversal of the ‘pushback’ of African immigrants willed by the Maltese government.

In fact, when Strasbourg stops the deportation of persons to a country where they would likely be tortured or face the death penalty, it is not preventing a threatened violation of human rights but addressing an actual violation. The very threat of torture, the imminent probability of inhuman and degrading treatment, by farsighted interpretation, already makes the target an actual “victim” who attracts protection from the Strasbourg Court.

The tragic irony is that far more interim measures have been issued by Strasbourg – that does not have any duty to prevent the violation of human rights – than by the Maltese constitutional courts, whose primary function it is to prevent the violation of human rights.

But are our constitutional courts aware that their primary function is to prevent the violation of human rights? And that only subordinately should they exercise their secondary function of redressing human rights already violated? Some are.

Others seem totally oblivious to this, their principal function. Their reasoning: the Strasbourg court does not act to prevent threatened violations of human rights. It grants preventive measures only most exceptionally in extreme cases. If that’s ok for Strasbourg, it’s perfectly ok for Malta too, ħeqq, no?

Nonsense. The two courts follow totally different courses, constrained by wholly different agendas and objectives. Preventive measures to avoid a likely violation of human rights is the rule according to the Constitution of Malta, but the exception in the European jurisdiction. Sadly, what should be the ordinary, routine norm has been turned, by some judges, into the most unachievable exception. They rely on the totally irrelevant Strasbourg case law to batter the Constitution of Malta into a leering parody of what it was programmed to be. Relying on the unrelated and alien Strasbourg case-law only diverts us towards a course of action diametrically opposed to the one embraced by our Constitution. Because that is what Strasbourg does, no?

Most of those constitutional pronouncements that have either accepted or denied the issue of precautionary interim measures to prevent an alleged violation of human rights, have qualified these measures as “exceptional or extraordinary”. They are to be issued in extremely urgent cases and only when otherwise the injury would be irreparable. No, dear judges, no: preventing any violations is your routine, common or garden, minimal function.

Are our constitutional courts aware that their primary function is to prevent the violation of human rights?

All this is exemplified by the political billboards case. The Opposition party had some 20 large billboards criticising the government, legally set up in various places. The government changed the law, making it almost impossible for a political party to display billboards in public spaces, owing to new and prohibitive financial conditions it imposed. The Opposition was ordered to remove its billboards immediately, as the old billboards were now non-compliant with the new financial conditions of the reformed law.

The Opposition challenged this new crippling monetary burden in court as a violation of its freedom of expression, and also requested an interim measure from the court to protect it from the immediate forced removal of the existing billboards by the government.

The constitutional court refused to intervene. It repeated the well-worn mantra that an interim order to prevent the violation of human rights is an extraordinary measure to be resorted to only if the threatened harm was irreparable. 

The court did not deny that the forced removal of the so-far legal Opposition billboards would constitute an interference with the party’s freedom of expression. No, it took a more creative detour round the outskirts of logic, to strip the victims of any protection against the immediate threat of democracy by silence. It argued that the political party had other means of expressing its opposition, no? so what was ‘irreparable’ if it lost its billboards with immediate effect?

In practice the court told the government it was free to close down the opposition’s radio and television stations, to shut its newspapers up. Why complain? Nothing irreparable. Can’t they still chat on social media?

Another dissimilar case. Mr S was being held in detention pending extradition requested by Lithuania. He challenged his extradition as a violation of his human rights, alleging, among others, that prison conditions in Lithuania amounted to inhuman treatment, as already certified by the courts. He also claimed that his detention in Malta pending his contested extradition, before he had been found guilty of any offence and where he was not being charged with having committed any offence, amounted to a violation of his human rights. The first constitutional judge ordered his provisional release from prison while his human rights case was being determined, but the Constitutional Court reversed this interim measure.

I am not expressing any opinion as to who I believe was right: I am only astounded by the fact that such heavy use was made of the totally irrelevant case law of the Strasbourg court, which addresses not legal principles which are unrelated and immaterial but which are wholly antipodal. This happened in several other cases too, like Rosario Sultana, Medcast, Jamburu Jara, Anthony Xuereb and Tarcisio Borg, among others. Read Maltese judgments and you never run short of despair.

Article 46 of the Constitution should be force-fed to anyone who aspires to act in a judicial capacity. If it were, we would stop hearing the courts repeat not one, but four major indefensible howlers. We would stop being told that preventing the violation of human rights is “an exceptional and extraordinary function” of the constitutional courts of Malta – the exact opposite is true: it is their primary function.

If it were read, we would stop being told that human rights complaints should only exceptionally be brought to the constitutional courts – the exact opposite is true: that Article establishes that the constitutional courts are the natural, first and prescribed forum for human rights complaints.

If it were, we would stop hearing that the government raised “the plea of non-exhaustion of other remedies” by the victim. The plea?! Are the courts going collectively cuckoo? A plea (eċċezzjoni) is a legal right of defence asserted by the defendant. There is absolutely no right to have a human-rights claim dismissed on the grounds of non-exhaustion other remedies. There is, at best, a possibility to invite the court to exercise its discretion against the victim, not any God-given right belonging to the respondent government.

 If Article 46 were read, we would stop being told that the constitutional courts have an unfettered discretion whether to adjudicate a human rights complaint or not. Four dismal and major blunders. Some judgments leave you with the impression that understanding Article 46 would be a shameful misdemenour no court would admit to in public. Understanding it would really upset the tragic disconnection of the deaf.

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

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