The Constitution of Malta (of Independence, 1964, and of the Rep-ublic, 1974) contains two legislative categories of human rights: the ‘declaratory’ (chapter two) and the ‘fundamental’ (chapter four).
The first set of human rights basically contains, inter alia, the right to education and the right to work and are entrenched to the effect that they may be removed from the Constitution by an absolute majority of Parliament and are not judicially enforceable.
The second group includes the right to life, the right to fair trial, freedom of speech and freedom of movement and are entrenched at a two-tier level, meaning that Parliament needs two-thirds of the votes of its members to expunge them and are judicially enforceable by way of redress before the constitutional courts at two (first, and appellate) instances.
The first of the two classifications has a ‘meaning content’ as a clause of direction, the second ‘quality’ significance as a measure of coercion, in John Finnis’s core terminology.
The first batch of rights certainly reminisced the draft International Covenant on Civil, Economic and Social and Cultural Rights (1954, effective 1966) while the second amalgam of rights was inspired by the European Convention of Human Rights and Fundamental Freedoms (promulgated 1950, effective 1953) and had their ultimate wellspring in the Universal Declaration of Human Rights (1948).
The first collection of human rights was introduced in the present Constitution of Malta and Parliament, until two years ago, when it added the right of participation in Malta of Maltese citizens living abroad, had dared to tamper substantially with the relevant provisions (chapter 2) only once by embodying the concept of equal rights for men and women in 1991.
The second class of human rights (chapter 4) appeared for the first time in the Constitution of 1961 and has already turned 50.
In 1987, Parliament did pass the European Convention Act to introduce a further redress to the European Court of Human Rights in Strasbourg.
However, the newly elected government at the time had, for complicated (majoritarian, political and legislative) reasons, hustled through Parliament the European Convention Act as an ordinary piece of legislation and did not incorporate its terms and contents, let alone make them whole with the Constitution.
In 1987, Parliament commendably extended the jurisdiction of the human rights provisions but it did not touch the Constitution insofar as the direct domestic adoption of the European Convention of Human Rights and Fundamental Freedoms was concerned.
A number of states and communities across Europe and beyond had already been bearing witness to an international emanation and flourishing of human rights in notional and declared terms well beyond the two post-World War II bands of human rights.
In 1979, Karel Vasak, at the International Institute of Human Rights in Strasbourg, had divided human rights into three generations: the first encompassing ‘civil and political’ rights that essentially deal with individual rights and liberties the Constitution of Malta had rendered judicially enforceable and entrenched at two-tier level.
The second are ‘social and economic’ as well as ‘cultural’ in nature, which the 1964 Constitution only ‘politically’ anchored without any form of judicial enforcement.
The third are mostly ‘environmental’, on which the Constitution is still silent.
This ‘environmental’ pillar of rights, which, extensively defined, are underpinned by human beings’ relationships with their ‘natural’ or ‘physical’ surroundings but also between themselves, have progressively been finding expression in new Constitutions and have been given recognition in international documents such as the Rio, Johannesburg and Stockholm declarations.
They are hitherto unknown to the Constitution of Malta, while they are poised to acquire legislative recognition and judicial enforcement at the highest levels of juridical hierarchies.
In the past decade, when the so-called ‘knowledge age’ dawned, a fourth generation of human rights, basically made up of freedoms of information and communications, unavoidably emerged as a movement aspiring towards the establishment of generally applicable and binding mechanisms of safeguards and guarantees pursuant to legislative instruments within implemental and optimal constitutional parameters.
Needless to say, the ‘fundamental’ protection by way of entrenchment and redress of information and communications are also extraneous to the Constitution, notwithstanding the fact that they have become more the centre of attention in both the humanities and sciences.
The third and fourth generations of human rights have both a sharing character and a communal dimension and may be rendered available and brought to bear constitutionally by virtue of collective action.
The Constitution in force encapsulates only the first two generations of human rights and, in one case, merely couches them in principle, as non-justiciable objectives.
Hopefully, Parliament will brace itself to give a lesson to other European Union countries not only by following the conceptualisation of human rights into a specific order of four generations but by giving them a coercive and effective, ‘qualitative’, constitutional character now that the momentous overhaul of the Constitution is on the agenda.
Raymond Mangion lectures in legal history and methodology at the University of Malta’s Faculty of Laws and Faculty of Media and Knowledge Sciences
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