Human Rights Law is one of the most evolving, consequential, and relevant laws related directly to human existence and human betterment. Professor Kevin Aquilina has been studying and reflecting about this realm of law for more than three decades. This is the second volume of his selected writings that the Department of Media, Communications and Technology Law at the Faculty of Laws of the University of Malta is publishing specifically to coincide with the celebration of the seventieth anniversary of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and the United Nations General Assembly’s Universal Declaration of Human Rights of 10 December 1948.
This collection of published works contains a substantial chunk of writings on Human Rights Law which have appeared in diverse sources.
The introduction discusses human rights the perspective of the Constitution of Malta and the European Convention on Human Rights. These provisions are compared with previous Maltese Constitutions and also other countries’ constitutions relevant to Malta. Respect for human dignity – the foundation for Human Rights Law – is also considered.
A Conclusion penned for an edited book is reproduced here, dealing with the Malta cases decided by the European Court of Human Rights covering the period 1987 to 2012. Further, this part features a paper on the Strasbourg case law related to the removal from judicial office of Mr Justice Carmelo Farrugia Sacco – and reflects on how this case law should have affected these proceedings. The procedure leading to judicial removal does not tally with the teachings of the human rights court in Strasbourg. Further, this part sounds the alarm bell as to a white paper published by Government proposing the establishment of a Human Rights and Equality Commission for Malta.
The impact of Human Rights Law is evaluated on internal disciplinary procedures, and the ineffective changes that were proposed to the Industrial Tribunal following two judgments delivered by the Constitutional Court finding the law to be in breach of impartiality. Government’s proposed bill to remedy this failing is considered not to be in line with the right to a fair trial. It is observed that a blanket industrial action ban constitutes a denial of the right of freedom of association. But recourse to the warrant of precautionary injunction to deny a person’s human rights is not only manifested in relation to industrial democracy but also with regard to the media where the issuing out of such an injunction has a chilling effect on freedom of expression and the free press. The new Media and Defamation Act 2018 simply skirts away from addressing this matter.
A rather lengthy report submitted to the Council of Europe on freedom of expression restrictions included in Maltese Law is published for the first time. Racial hatred from the perspective of freedom of expression is also addressed.
Freedom of information under Maltese Law is then discussed in relation to the enactment of a Freedom of ¸£ÀûÔÚÏßÃâ·Ñ Act. The Strasbourg Court’s case law is introspected vis-a-vis the freedom to impart political information versus the absolute broadcasting ban on political advertising and its application in Malta.
The Technology Law implications of privacy are analysed and guiding principles are identified to animate privacy protection from technology infringing mechanisms. The Data Protection Act, the Freedom of ¸£ÀûÔÚÏßÃâ·Ñ Act and the National Archives Act are contrasted to privacy law to answer the question: to what extent does the National Archives Act violate the right to privacy?
Human Rights Law has developed a Broadcasting Law angle. The extent to which children’s rights impact upon the Maltese audiovisual landscape is debated, and tackled from an international, Council of Europe and European Union perspective. Two short contributions then study the Broadcasting Authority from the angle of natural justice. The situation of Human Rights Law in so far as Media Law is concerned, bloggers and their sources, the chilling effect of defamatory libel, garnishee orders and media gagging, the retrospectiveness of the more lenient criminal law, and government’s Media Bill volte-face attributed in part to the Bill’s inconsistencies with Human Rights Law are also addressed.
Other aspects discussed are how should the secret state be brought in line with the granting of access to government-held information; how the notice of action procedure in Maltese Adjectival Law raises serious Human Rights Law concerns; the requirement to introduce more European Convention on Human Rights compliant provisions in the Criminal Code in relation to the right to legal advice during police detention and interrogation; the right against self-incrimination under Maltese Law; the presumption of innocence and reverse onus provisions in Maltese Law; the complimentary or conflicting status of the Maltese crime of espionage, on the one hand, and the nullum crimen sine lege certa legal maxim, on the other. The publication also investigates the principle of legality, the human rights implications of a non-literal transposition of an EU Council Framework Decision in the Maltese Criminal Code, and the breach of the right to a public trial by a provision in the Maltese Official Secrets Act.
Development planning also has a human rights law angle. The case law of the European Commission of Human Rights and the European Court of Human Rights up to 1998 is set out. Two pieces study the human rights implications of the Environment and Development Planning Bill (of 2010) and that Bill as subsequently enacted into law, as well as the new Development Planning Bill of 2015.
Pertinent published papers relate to the removal of a judge from office with the participation of non-judicial organs of the state. Strasbourg case law has consistently emphasised that Parliament is inappropriate, from a human rights view, to remove judges from office as it does not satisfy the requirements of impartiality. Also commented upon is the right to a fair hearing in the light of compulsory arbitration and the general prohibition of discrimination.
Six further pieces deal mainly with the juridical nature of administrative offences, shifting the criminal sanction into Administrative Law, the right to a fair and public trial in administrative broadcasting proceedings, and administrative sanctions and Broadcasting Law viewed from a natural justice narrative.
