The Maltese legal system : volume II : part B

Abstract

The "Maltese Legal System" is a collection of works on important aspects of Maltese Law. It is written primarily to assist the general public and students who wish to read law at the University of Malta. Volume I consists of a general introduction covering the various Maltese legal institutions and the law on jurisdiction. Volume II, Part A covers the whole spectrum of Maltese Constitutional and Human Rights law. The current volume, entitled "Constitutional and Human Rights Law", complements the latter volume by providing a comprehensive review of the constitutional, human rights, and fundamental freedoms jurisprudence of the Maltese Courts, and the European Court of Human Rights decisions relating to Malta. As suggested by President Emeritus Mifsud Bonnici in his Foreword to this volume, it is my hope that this collection of judicial decisions will provide the necessary legal background to develop further our Constitution. My intention to translate the said decisions into English was also to expose our jurisprudence to the attention of jurists and scholars overseas. In this respect I wish to record that upon being called to the English Bar, I was invited to participate in a seminar to prepare barristers for the introduction of the Human Rights Act under the Blair Government. It struck me that the English academics and barristers who spoke were referring to the New Zealand Constitution as its human rights provisions were based on the European Convention on Human Rights. I therefore felt it necessary to make the point that more attention should be given to the relevant Maltese jurisprudence in the light of the Anglo-Saxon influences on our legal system. More importantly the said jurisprudence represents a valuable interpretation of the European Convention by the Courts of a State party. The fact that the jurisprudence was largely in Maltese did not help. A brief reference must be made to the recent developments in one particular field of case law. For practicality's sake, during the preparation of this volume a cut-off date for the judgments herein considered was necessary. In the case of European Court of Human Rights judgments, the cut-off date was 2012, whilst in the case of judgments delivered by the Maltese Courts, the cut-off date was 2014. In this volume, the reader will find a number of judgments - delivered between 2010 and 2014 - regarding a person's right to legal assistance when undergoing police interrogation. Initially, the interpretation which had been adopted by Maltese Courts was that no interrogation given without the possibility of legal assistance was admissible as evidence. Subsequent judgments changed the position; the Maltese Courts stated that interrogations made without the right to legal assistance were valid, provided that the person interrogated was not "vulnerable". This interpretation however was rejected by the European Court of Human Rights in its Mario Borg v. Malta Judgment delivered on 12 January 20161 The Maltese Courts now consistently reaffirm the position set out by the European Court. In conclusion, I would like to refer to a little-known decision of the European Commission of Human Rights dated 3 February 1970 (for text thereof, see 'Notable Decision' at the end of this volume). In the application (number 3813/68) "X against the United Kingdom", a citizen of the United Kingdom and resident in Malta complained on a number of interesting issues relating to his trial in the Maltese Criminal Court before the Chief Justice sitting with a jury. The applicant was convicted of complicity in the forgery of a public instrument (a will) and attempting to obtain money or property by false pretences. The decision is interesting because of the temporal challenges facing the Commission given that the trial was held a few weeks after the Independence of Malta (21 September 1964 ), and the applicant's appeals to the Privy Council in London. The silent "revolution" brought about by the 1987 European Convention Act continues! [Preface]