The government just published a bill to amend the constitution of Malta “with the aim of strengthening the right to freedom of expression, the right to privacy and freedom of the media”. The telegraphic objects and reasons accompanying the proposed bill venture further by claiming that this is “for the better implementation of the rule of law in a democratic society”.

Under the short title Constitution of Malta (Amendment) Act, 2022, the government is essentially proposing the introduction of a newly minted section relating to the ‘Protection of freedom of the media’, a pseudo-revision of a number of privacy provisions and a pseudo-revision to our right to freedom of expression.

An analysis of the bill paints a stark and different picture than what its objects and reasons declare. On the contrary, one could claim that such proposals are, at best, diluting our existing rights or, at worst, a constitutional blunder of biblical proportions in the making.

The proposed references to the recognition by the state “of the freedom of the media and the role of the media as a public watchdog” through an insertion in chapter 2 of our constitution are nothing but empty words.

Chapter 2 merely deals with principles such as the right to work or the promotion of culture. Yet, article 21 of our constitution provides that the principles found in chapter 2 are not enforceable in a court of law.

Essentially, anything contained in chapter 2, including this newly proposed protection of media freedom, is as useless for the recognition of a “public watchdog” as much as the abhorrent application of freedom of information laws by the current administration. So much for the implementation of rule of law.

Things get worse and, from an academic perspective, we are now entering the twilight zone.

The bill is proposing the substitution of the current article 38 with a new article. It should be immediately evident that the first sub-article is simply a carbon copy exercise of article 8 of the European Convention of Human Rights (ECHR): “Everyone has the right to respect for his private and family life, his home and his correspondence.”

The remaining sections are simply a regurgitation of what is already included in the present version of article 38. But article 8 of ECHR has been part of the Laws of Malta, and directly enforceable in Malta, since August 1987 and this through the European Convention Act. So why are these amendments being proposed then?

It appears now that the transposition of article 8  ECHR into this new article 38(1) of the constitution will be subject to and limited with the litany of exceptions contained in the current version of article 38 (which presently limitedly refers to searches “of his person or his property or the entry by others on his premises” and which article remained intact and unchanged since 1964, a living testament to our colonial past).

In light of the fact that our constitution ranks before the European Convention Act, one could now claim that the rights enshrined in the European Convention of Human Rights might be under threat.

The authors of this bill would surely make Viktor Orbán proud. I would still urge them to read George Orwell, for the sake of our democracy- Antonio Ghio

It is too early to say whether this outcome is the result of (i) legislative incompetence fuelled by the desperate need by the administration to be seen to be doing something or (ii) pure unfiltered totalitarian flair.

In any case, it is difficult to fit either approach into a reflection of a “better implementation of the rule of law in a democratic society”.

Similarly, the same methodology has been utilised for the proposed amendments in article 41 of the constitution dealing with our freedom of expression. Here, the proposed legislation is replicating the provisions contained in article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

But there’s the catch. The limitations to this right of freedom of expression as currently contained in article 41 are now being revised and extended but “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society”.

Does this mean that the operator of a news portal will now need to adhere to any constitutional “formality” of giving his details to the ministry of truth? The government’s first attempt at the Media and Defamation Act in 2017 reads like an opus compared to this convoluted mess.

Why are we playing with our right to privacy and the right to freedom of expression in such a dilettantesque fashion only to end up with an eroded version of such fundamental rights when the whole scope was to protect journalism?

Shouldn’t we discuss how we can further reduce any limitations to such rights as opposed to wrap them in new ones?

The authors of this bill would surely make Viktor Orbán proud. I would still urge them to read George Orwell, for the sake of our democracy.

Antonio Ghio lectures privacy law and information law at the University of Malta.

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