Académique Documents
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independence of the judiciary it means that they are at complete liberty in their judgements and therefore can not be
dismissed simply because they may give unpopular or unexpected judgements of rule. The independence of the juditiary
is a fundamental pillar of the constitution and of what is known as the Rule of Law. The Rule of Law is not ruled by law
because even the worst dictators in history ruled by law as you will understand a law can be an instrument of
profession, the rule of law is a political and legal concept which ensures that nobody is above the law, that in the eyes of
the law all persons have equal standing and therefore a law applies to all with those effected independently of status and
position in a society. The courts are a fundamental pillar because their role is to ensure and keep in check that the law is
applied to all, and that nobody is above the law. The chapter on the judiciary also provides for a commission for the
administration of justice which is as various functions but is also a watch dog on the process of the courts without
interfering with the independence of the courts. Judges and magistrates can be removed by a procedure known as
impeachment which requires proof and established in capacity becoming incapable like a mental illness or
misbehaviour.
Chapter9: Public Finance. This authorises and establishes the procedure for taxation and there is an old principal that
there is no taxation without representation in other words taxes have to be directly or indirectly. The constitution gives
the power to parliament and the executive to raise taxes and establishes what is known as the consolidated fund, which
is the public fund by default, of course there are many elocations and specialised and particular accounts, ultimately
everything has to link with this consolidated fund. The chapter on finance deals with the auditor general and the deputy
auditor general. The auditor general has the function to regularly and on an ongoing basis audit public money and
reports to parliament. The auditor general is appointed for a fixed period of time and maybe re-appointed, but during the
period of office the auditor general enjoys the same independence as the judiciary(the courts).
Chapter 10: The next chapters relate to the public service and the local councils. The existence of the local councils is
acknowledged and provided in the constitution. There is not so much detail and we find the detail in the local councils
act. The public service is those who are engaged by government, this has a long history and the rule is that public
servants are engaged, disciplined and dismissed by a commission known as the public service commission. The
discretion of the public service commission can not be challenged or enquired into by any court. This means that it is
possible to challenge the public service commission for acting beyond its powers. To conclude there are 2 authorities
the first is the broadcasting authority and the other is known as the employment commission. The function of the
broadcasting authority is again a watch dog to ensure that reasonable air time in television and radio is granted to
parties, movements, NGO'S etc wishing to have air time, also the broadcasting authority can ensure that no serious
interpretation is made in current affairs. The broadcasting authority also licenses radio and television.
The employment commission, its function as originally designed was to ensure that there is no political discrimination
on the workplace, that people are not treated differently either in favour or against by virtue of holding a particular
political group.
Article 4 of the convention and article 35 of the constitution, they are not identical because the
convention speaks that nobody should be held in slavery. The constitution being a more reasoned
speaks that nobody should be required to perform forces labour. It is the application against the rule
of forced labour is in general terms is easy and straight forward to understand however it is more
the exceptions that in practice create difficulty.
What is about the essential services if for ex. Medical services has to provide emergency treatment
regardless, is this forced labour? What about basic services of the society ex. Civil protection,
police etc. does the effect of a law or a policy requires that these has to be maintained at all times
constitute a violation of this right against forced labour.
There is a number of exceptions: Work imposed during the ordinary course of detention there is
nothing in principle prohibiting by the convention or constitution which prohibits that those serving
time have to perform work or even when they are released on parole.
Another important exercise is military service or work to begun by contentious objections. This is
not a violation of the right to forced labour. Another important is where in the interests of the
personal care of a person, treatment such as medical and hygienic, here no one can claim or argue
that it is a forced labour.
The most controversial article is where work is imposed on a section of the community either in the
public interest or during a period of public emergency or calamity. The second part is easier to
understand if there is for ex. Flood, it is clear that the prohibition can see limitations. The more
controversial is where the public interest or the benefit of the community is imposed outside the
concept of an emergency or a calamity. The question always remains controversial, the inclination
of the European court in the case of clear defining services such as relieving medical emergency,
public order, civil protection it is legitimate and not forced labours to expect that these essential
services in the interests of the community are to be maintained. The focus is on the interest of the
community, the position of duties can be reasonably and objectively justified and can not go beyond
the requirements of the community. When therefore this becomes excessive of disproportional than
it would violate.
Freedom and Protection from arbitrary arrest and detention (Article 34 of the constitution and
Article 5 of the convention
Can a person be arrested in jail and detained and deprived from personal liberty?
Here we are looking at the validity and legality of arrest and detention.
The general principle on presumption is that a person is free and should be free from arrest and
detention.
The presumption and the general rule is that a citizen a person is entitled to personal liberty and
freedom and it is the exception and not the rule which allows a person to be arrested and detained.
So most of the points we shall refer to are the exceptional.
The first and the most obvious is where there is a judgement of a competent court whether it is a
Maltese court or a foreign court in respect of a conviction for a criminal offence and if this
conviction imposes detention for example a period in jail, this is a perfectly legitimate restriction on
the right to personal liberty.
Another exception is where a person is unfit to plead to a criminal charge, this means that a person
is considered not to have been of sound mind at the time the offence was committed and because of
this a person can not be held to be criminally responsible but it does not mean that a person will
escape detention because often the courts place such persons in some mental asylum. The courts
have generally the power to order the arrest and detention for the purpose of ensuring compliance
and obedience to a court order. If you disobey a court order the sanction can be arrest, detention
either as a punishment or until a person decides to obey such court order.
An alternate scenario sometimes the court orders the arrest and detention of a person for the purpose
of ensuring the appearance and attendance of such person before the court. The courts have the
power to detain and arrest a person depriving such person of personal liberty either in awarding
punishment for a criminal conviction or to ensure compliance with court orders, or to ensure that a
person does appear before a court.
There is than another situation where the arrest or detention is justified and this time it is not
necessarily by court order but it could be an executive not a judicial authority such as the police and
therefore the question is what are the powers of the police to arrest and detain a citizen?
In general term on 1 of 2 grounds the first is when they have a reasonable suspicion that you have
committed or you are about to commit a criminal offence, in other words the action of the police
based on suspicion has to have grounds which are reasonable, it should not be a fantasy or a
possibility simply entertained of considered by a police official, the legality of the arrest can be
challenged on the basis that there existed no objective evidentially to lead to a reasonable
conclusion that has committed or is about to commit a criminal offence. Detention is also justified
on the basis that the person is about to flee and therefore can not be than found to answer to
charges.
The competent authorities (normally the police) may detain a person under the 18years of age for
the purpose of such persons education, in other words where minors (under18) are kept in an
educational institution with the consequence that their rights to roam etc. is limited, this is justified
if it is done for the purpose of education and formation of such person.
There are other ground which justify detention for example where people are kept apart and not
allowed to go freely to prevent the spread of contagious diseases. Likewise the detention of persons
who are reasonably suspected to be either addicted to drugs or alcohol or a treat to the community
may be detained for their own treatment and the protection of the community.
A more controversial issue is the treatment of vagrants (tramps), [have no residence]. There were
many early cases in the 60's of the legality of the detention or other wise of these vagrants, the court
only justified their detention if they are a treat to people.
Does a person who is arrested or detained have any rights? Yes a person has such rights.
The authorities have to inform the arrested person in a language that such person understands it has
to be translated as soon as reasonably practicable, the person have to know the reason of the arrest.
There is one phone call to a lawyer of your choice, and there is also talk that an interrogation in
police custody has to be in a presence of a lawyer of choice. Can a person be held in
incommunicado meaning that a person is held without any communication to friends, family and
lawyer. The answer is No. There is the 48hour rule which is the person detained has to be within
48hours either charged with a criminal offence and therefore at the moment of accusing the person
than the rights of the person charged come into play or within this 48hour window he is released. It
has to be an effective release there where times when a person walked out of the police headquarters
and was picked up again two streets away, the courts say that release is release. Today there is also
the concept of police bail. This means that you are not arrested but a person who is being
investigated gives an undertaking to the police that he goes to them and cooperates accordingly.
There are 2 final points, the first is that where it is established that there has been wrongful arrest or
detention there is a right to compensation and this point is further developed by the seventh protocol
to the convention. The final point is that the right to freedom and the personal liberty may be
temporarily suspended not on a mass community level but in respect of specific individuals during a
period of public emergency. This power of the authorities is not uncontrolled but it is subject to
periodic review by an independent judicial authority.
The Requirement of a fair Hearing (Found in article 6 of the convention and 39 of the constitution)
The context is court procedure so it is not the scenario of being investigated it is the scenario where
a court procedure has commenced, it could be criminal or civil.
In short these articles provide for the minimum guarantees in court proceeding, meaning that if a
party can show that a court hearing/proceeding fell short of these minimum standards than there is a
remedy under the constitution and the convention, this can be either that the proceedings
complained of are set aside and annulled and the procedure is done afresh or the court can grant a
remedy.
A person charged with a criminal offence is entitled to a fair hearing within a reasonable time by an
independent and impartial tribunal established by law.