Constitutional and Human Rights Law

by David Attard

published by Malta University Press

The Maltese Legal System, Volume II, Part A, entitled Constitutional and Human Rights Law, penned by Prof. David Attard, chancellor of our alma mater and judge of the International Tribunal for the Law of the Sea, is an important book for law students, lawyers, judiciary, and the public interested in constitutional law and human rights law.

It deals with the characteristics of the Maltese constitution, the constitutional doctrines of the separation of powers, the rule of law, and the supremacy of the constitution over parliament.

First, it discusses the constitutional development of Malta until it finally attained the status of an independent state together with the authority of the Maltese constitution.

Noteworthy is that Attard develops a very novel and original theory based on Public International Law that it was the “right to independence and self-determination – and not the Act of the United Kingdom Parliament – that was the fundamental basis for Maltese independence”.

This is the very first time that I came across such an innovative and groundbreaking theory that has been advocated. But there are other firsts for this book.

Second, the monograph discusses the main features of the Maltese constitution and its sources. Once again, Attard develops a new perspective on the sources of Maltese constitutional law, dividing them into two categories – sources strictu sensu – and sources latu sensu.

By the latter, he means valuable evidence on Maltese constitutional law that can conveniently be summed up under the term ‘evidence of state practice’. Mentioning state practice, the author devotes a section to discuss constitutional conventions as they developed in the UK and constitutional practice in Malta.

Several examples of Maltese constitutional practice are provided. Once again, this is a third distinction drawn by Attard that is peculiar to Malta and not found anywhere in other publications on Maltese constitutional law. All these three novel approaches to the study of the Maltese legal system theories are landmark and worth studying in greater depth.

The constitutional law chapter then discusses the main state organs and offices established by the constitution and, for the very first time again, provides first-hand evidence on the operation of these organs and offices through state practice.

Attard gauges state practice by interviewing former presidents, prime ministers and leaders of the opposition and through this innovative tool, manages to reduce to writing several state practices that, prior to the publication of this book, were kept by the protagonists to their own chest. Essentially, what happened behind closed doors was simply a matter of speculation. Now it has become a matter of legal ascertainment.

But Attard’s daring inquiry does not stop here. He asks former prime ministers to reveal and bring to light the criteria for selection of ministers and parliamentary secretaries, and refers to those cases where MPs were disgruntled by the prime minister’s offering and how these episodes ended.

Monograph discusses the main features of the Maltese constitution and its sources

This is – undoubtedly – another landmark of this book for it is only here that you will find written down, black on white, the criteria for ministerial and parliamentary secretarial appointment.

The work discusses the judiciary, the doctrine of the independence of the judiciary, and their watchdog – the Commission for the Administration of Justice.

Other matters discussed are the cumbersome procedure to alter the constitution and the various electoral systems prevalent in Malta, with special focus on that relating to the election of MPs, their respective electoral process, and the main protagonists in elections – political parties and their financing. Linked to elections are popular referenda that are also studied here.

Another section introspects recent constitutional amendments that were ongoing or being concluded when this work was being finished.

Two final sections in the constitutional law chapter relate to foreign influence on Maltese law. First, we read about the effect of English public law on Maltese public law – how this forensic doctrine has evolved with reference to pertinent case law.

Second, the influence of European Union Law on the Maltese legal system through the European Union Act, the amendments made to the constitution when Malta acceded to the EU, the European Parliament Elections Act, and the Euro Adoption Act.

The second chapter is an introductory chapter on human rights. This is because the theme of human rights is developed further in Volume II, Part B launched in December 2021. In Part A, the introduction to human rights law discussing the development of human rights in general and their historical evolution in Malta over a wide span of time starting with the 1802 Maltese Magna Charta or Charter of Bills – the Declaration of Rights of the Inhabitants of the Islands of Malta and Gozo, a declaration more by way of wishful thinking than by way of hard law.

The seed of human rights and fundamental freedoms as we know them today in Chapter IV of the constitution and the European Convention Act, among other laws, was first sown in the 1802 soft law declaration that, as time passed, transmuted itself into hard law.

An important book for law students, lawyers, judiciary, and the public interested in constitutional law and human rights law. File Photo

These human rights principles, and others, began a process of being enshrined during British colonial times into Maltese law. Hence, when Malta became an independent state in 1964, it had already its own Bill of Rights in Chapter II of the Constitution of Malta of 1961.

In this way, it can be safely stated that human rights evolved over two centuries and that when we were granted our constitution in 1964, human rights and fundamental freedoms had already been well-received in Malta.

The literary style of this book is addressed to an uninitiated audience. One need not to be a legal expert in law to understand it. The author has taken it upon himself to explain the Maltese Legal System in a way that can be comprehended by all, irrespective of their background, and without having had encountered the study of the law prior to reading it. This creative literary style is meritorious in its own right.

Kevin Aquilina is professor of law at the Faculty of Laws, University of Malta.