There is nothing in Maltese law that prohibits one from being a freemason. On the other hand, there is no legal enactment which grants recognition to Masonic activity on the island.
In 1819 Governor Maitland suppressed the lodge Les Amis en Captivité, which had just obtained permission from Waller Rodwell Wright to resume its labours under English jurisdiction, on the grounds that its members had harboured the "designs of the Carbonari", an Italian secret society - at the time a thorn in the side of the King of the Two Sicilies and the Papal States.
It was a period of tranquillity after the end of the Napoleonic wars. H.M. Government did not want the island to be used against governments which had shown solidarity against the French Emperor.
The suppression of this lodge is the only recorded instance of direct British interference with Masonic activity on the island.
Fortunately, this single incident of suppression cannot be repeated by the government nowadays. Chapter IV of the Constitution of Malta guarantees the fundamental human rights and freedoms of the individual, which include the right to privacy, freedom of expression, freedom of worship and freedom of association.
Furthermore, in 1987 Malta incorporated the European Convention of Human Rights into Maltese domestic law.
Consequently, our freedom of association in private gatherings is guaranteed by law. In normal circumstances a court would have to inquire into the nature, aims and objectives of freemasonry and then come to an objective conclusion.
American legal view
Perhaps, it should not have been difficult to quote foreign judgments to arrive at the right conclusion. After all, Masonry is a world-wide system, not peculiar to Malta. Such foreign judgments would certainly have been helpful.
To quote a couple of American cases: In Ancient Accepted Scottish Rite vs. Board of County Commissioners (Nebraska, 1932) the court said: "Masonry is traditionally and generally described as a system of morality veiled in allegory and illustrated by symbols. It teaches as a foundation principle faith in God and immortality of the soul..."
In Morrow vs. Smith (Iowa, 1910) the court held: "A very substantial activity of this order (Masonry) is devoted to the help of those who are needy and in distress. Granted that its benevolence is principally confined to those circles, it is nevertheless commendable as far as it goes, and in the interest of the public good..."
These cases are enough to illustrate that there is nothing defamatory in being labelled a Mason.
Although Maltese law neither recognises nor prohibits Masonic lodges, the European Convention on Human Rights states: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any such ground as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
This blanket provision covers all types of discrimination. Thus, if an individual is debarred from government employment on the grounds of membership of a Masonic lodge, then that individual has the constitutional right, after exhausting all the local remedies available under Maltese law, to seek redress before the European Commission for Human Rights.
There are only two cases of Masonic interest in Malta. One occurred in the 1930s and the other quite recently, in 1992. Unfortunately, no principle of legal importance emerges from them and also, very unfortunately, they were much charged with political undercurrents.
The only concern was whether it was defamatory to label a person as a mazun. The court decided the issue expeditiously owing to 'political overtones', it being the eve of an election.
Our courts did not delve into the nature of the Masonic institution. However, there is much wealth of information in American caselaw.
Unincorporated associations
The law that applies to unincorporated associations applies to each of the private lodges under the separate jurisdictions. Freemasonry per se is not a society or an association. It is an ethical system, which teaches under the form of symbolism.
Just like the different religious denominations, which operate on the island - these are not societies or associations, but 'ethical' systems conveying a particular code of living.
With the lodges it is something different. Masonic lodges are quite similar to associations, or to be more precise the old guilds, from which historically they owe their origin.
These can be referred to as unincorporated associations of individuals, and therefore under Maltese law no form of registration is required. In Malta there is no official register of unincorporated associations or societies.
These exist and the authorities may not even know of their existence. But, when such an association or society operates a club, certain rules have to be adhered to.
The law requires that to operate as a club it should first be registered with the police and have the relative permit issued. This registration consists in filing a police form, and supplying a list of members of the first committee of the club, the address of the premises, the secretary's name and personal or private address, and the statute.
This form is filed annually. When there is a change of secretary, the police are to be informed immediately. No list of members is required by the police authorities, but proof has to be submitted that membership fees are adequate to cover the rent of the society's premises. Every club is obliged to follow this procedure under our law.
The law lays down these requirements so that the legal responsibility is first checked from the statute; in the absence of any provision to that effect the secretary is held legally responsible. Such clubs also require the neighbours' consent before their relative permit is issued.
Repealed 1982 Act
Under the Foreign Interference Act, 1982 foreign associations or organisations operating in Malta were required to submit an annual return to the Foreign Affairs Minister.
Control over foreign associations operating in Malta had a different purpose, namely to control and curtail foreign activity, particularly of a political nature.
As Freemasonry is not concerned with politics the formalities required under the 1982 Act need not bother us. From 1987 such information was no longer required from our lodges as the relative section in the law has been repealed.
However, English Freemasonry in Malta did, and still enjoys, a unique position, arising from legal practice rather than from the written law. On July l7, 1952, the "Maltese Government" (Malta was still a self-governing British colony at the time) granted on a 99-year-lease, Nos. 6 and 7, Marsamxett Road, Valletta, to the Masonic District of Malta.
This means that the authorities in Malta, for all legal purposes, have recognised not only the existence of Freemasonry in Malta, but thought it fit to enter into contractual obligations with the Masonic District of Malta.
The district was dissolved in 1984, but the government, by accepting the ground-rent from the Grand Inspector of the English Group of Lodges, has legally accepted him as the legally legitimate successor of the district Grand Master.
Can a judge be a freemason?
An interesting legal point is whether a magistrate or judge can be a Freemason. Since Maltese law is silent on this topic it should definitely be interpreted that one can be both a member of the Maltese judiciary and a freemason.
In Malta the Code of Organisation and Civil Procedure (Section 734, Chapter 12 of the Laws of Malta) expressly lays down the grounds on which a judge may be challenged from taking cognisance in a cause.
None of these grounds include freemasonry. If one were to look at the decisions of foreign courts in countries where the rule of law, in the democratic sense, is the order of the day, one would conclude that there is nothing that precludes a judge or magistrate from taking cognisance of a case because he is a freemason.
What is usually enquired is whether a judge, who is a Mason, can take cognisance of a case when a fellow Mason or when the Masonic lodge, or the Masonic institution, is one of the parties to it.
In American Jurisprudence (2nd edition) the following rule has been enunciated: "A judge is not per se disqualified to try a case, where one of the parties is a church, lodge of society of which he is a member."
The Corpus Juris Secundum (a legal encyclopaedia bringing up to date the material in Corpus Juris) states: "The fact that a judge is a member of a church, lodge, society or educational institution may, but does not necessarily disqualify him from acting in a suit in which the Organisation is interested, or to which it is a party."
In Blackeman vs Harwell (Georgia, 1944) the disqualification of a judge on grounds of Masonic connections, because one of the parties was a Mason, was discussed.
The court said: "From earliest times it has been held that the requirements of impartiality disqualify a judge from acting in a case in which he has interest.
"Though it has been held that the disqualification interest may be a personal one to the judge, the general rule is that it must be pecuniary in nature, and several cases emphasise the distinction between a property interest and such interest as result from a feeling of sympathy or bias that would disqualify a juror."
Quoting from another work the same court said: "The interest which disqualifies a judge is a direct pecuniary or direct property interest, or some which involves some individual right or privilege in the subject-matter of the litigation, whereby a liability or pecuniary gain must occur on the event of the suit."
On similar grounds a Mason is not disqualified from serving as a juror because the accused is also a Mason or belongs to the same Masonic lodge. What should be emphasised is that a judge or juror is bound to abide by the law, and that his duty under the law supersedes all Masonic obligations.
Two interesting cases decided in August 2001 by the European Court of Human Rights concerning freemasonry are NF vs. Italy (August 2, 2001, No 37119/97) and Grande Oriente F. Italia di Palazzo Giustiniani vs. Italy (August 2, 2001 No 35972/97).
In the former case it was held that the imposition of a disciplinary sanction on a judge on account of his membership of a Masonic lodge was deemed to violate Article 11 of the European Convention on Human Rights.
In the latter case the court held that obliging candidates for regional posts in Italy to declare that they are not freemasons was also a violation of Article 11.
If what has been reported in a section of the press is true, namely that the Commission for the Administration of Justice has recommended that prior to their appointment new judges would be asked to declare that they are not freemasons, then this too is a flagrant violation of the European Convention.
Article 11 of the Convention deals with the right to freedom of peaceful assembly and with freedom of association in a democratic country.
Incidentally, in 1995 the Government of Malta had proposed to introduce a Voluntary Organisations Act, which had a specific clause that was aimed at declaring freemasonry an unlawful organisation.
The draft Bill clause 12 (3) read: "An organisation whose members are banded together to preserve the secrets, customs and ceremonials handed down to them from time immemorial, and for the purpose of mutual intellectual, social and moral improvement shall be deemed to be a secret organisation for the purpose of this Act or any other law." Had this become law, it would certainly have been a gross infringement of Article 11 of the European Convention of Human Rights.
Constitutionally speaking, the human rights provisions in guaranteeing the right to privacy and the freedom of association offer adequate security to Masonic lodges from Government interference.
Article 11 offers adequate safeguards in protecting Masons' rights to freedom of association. Let our parliamentarians, judiciary and lawyers come to terms with the 21st century!
Let us cherish our fundamental rights and freedoms. We live in the age of tolerance, and not imposition. Napoleon disbanded the Inquisition 200 years ago! Let us not create a new one!