Meddling with human rights convention

The Nationalist Party and Momentum have rightly questioned the prime minister’s commentsimplying that he will be proposing changes to the Council of Europe’s Human Rights Convention.

In the absence of sufficient details to comprehend what changes Prime Minister Robert Abela has in mind and exactly what amendments he means to propose, it is opportune to highlight certain legal and procedural aspects of how EU member states can tackle changes to the European Convention on Human Rights.

The question of whether to leave or stay in the European Convention on Human Rights (ECHR) is fundamentally political, not a legal one.

Article 58 of the ECHR says that states can “denounce” (leave) the convention with six months’ notice. The decision whether to stay or leave is

not a choice between democracy (or national sovereignty) on the one hand and participation in an international rights treaty on the other hand. The balance of pros and cons is more complicated than that.

Has the convention been a force for good or ill?

Undoubtedly, it has profoundly influenced the protection of rights in our country, including the treatment of homosexuals, corporal punishment in schools, the protection of journalistic sources and the treatment of irregular immigrants.

Those cases were brought precisely because the rights in question were not, at the time, adequately protected by Maltese legislation. Every time the government lost a case in the European Court of Human Rights in Strasbourg (or, indeed, in our domestic courts under the Human Rights Act), it was told to do something it would rather not do, or vice versa. The Maltese government may not have welcomed all those rulings and some remain controversial to this day.

Could it be that the government might decide to make changes to the scope or content of particular rights? The rhetoric from the current government has implicitly been that the ECHR has gone too far. On more than one occasion, it has tried to restrict the application of article 8 in deportation cases and to prevent the bringing of claims under that article.

One particular bone of contention has been the court’s use of interim measures under rule 39, a form of interim injunction, including to prevent the removal of unsuccessful asylum seekers and irregular immigrants.

Whether or not such measures were originally foreseen by the convention, they now form an established part of the court’s jurisdiction. There is good reason for that: it is normal for courts to have the power to make interim orders to ‘freeze’ the position pending a final ruling, particularly where there is a risk of irreparable harm (even death) in the meantime.

The ECHR has profoundly influenced the protection of rights in our country- Mark Said

But there is scope for improving the rule 39 procedure, for example, by allowing the relevant national government to make urgent representations before a ruling is made.

Like any human institution, the ECHR is imperfect. Changing any international treaty is difficult but it can be done by agreement between the members. Over the years, the parties to the ECHR have agreed to 16 protocols changing aspects of the convention and its operation.

If the government wanted to make further changes, it could argue for those from inside.

The Maltese government also has the opportunity to present arguments in individual cases about how the ECHR should be interpreted and the Strasbourg case law should develop.

Unless the prime minister clears the air surrounding his comments that can possibly be interpreted as a threat to leave the ECHR if the Strasbourg court rules against the Maltese government, such a threat itself creates uncertainty, instability and damage to Malta’s credibility.

Before going ahead, perhaps he should consider the questions above, including whether, as well as the option to leave or stay, there is also an option to stay and improve.

Mark Said is a lawyer.