The Malta Independent 20 June 2018, Wednesday

The Rule of Law À La Maltaise

Thursday, 28 December 2017, 13:30 Last update: about 7 months ago

The Rule of Law À La Maltaise is Professor Kevin Aquilina's recent book on quite a topical subject. It consists of several thought provoking writings which the author published over the years, both in international and Maltese peer reviewed journals and in the local popular press. The main theme of this book is 'The Rule of Law' which is explained in the Introduction by reference to several authors such as Albert Venn Dicey, Joseph Raz, Tom Bingham and Giorgio del Vecchio. For Professor Kevin Aquilina, the rule of law within the context of Maltese Law obliges the state, including the public administration, to respect and observe the principles set out in the law. It is the foundation of a civilized community; establishes a transparent process accessible and equal to all; and ensures adherence to principles that both liberate and protect.

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The key components of the rule of law comprise the following: (a) restraint on state autonomy in inter-state relations; (b) the supremacy of the law; (c) equality before the law; (d) separation of powers; (e) the independence of the judiciary; (f) the international rule of law in relation to the person; (g) respect for human dignity and safeguarding of human rights and fundamental freedoms; (h) public participation in the decision making process; and (i) due consultation with civil society before major decisions are taken.

The rule of law requires that: (a) the state, including the public administration, is subject to the law; (b) the public administration respects the rights of persons under the rule of law and provides effective means for their enforcement; (c) the judiciary is guided by the rule of law, protects and enforces it without fear or favour and resists any encroachments by Parliament, the public administration or political parties in their independence as members of the judiciary; and (d) all members of the legal profession insist with the state that every accused person living under the rule of law is entitled by law to a fair trial.

Adherence to the rule of law has acquired heightened importance in Malta in recent times. Considering the rule of law to be paramount to a civilised democratic society, Professor Kevin Aquilina has made this topic central to his own thoughts and writings for three decades. This publication consists in a collection of (some) previously published works by Professor Aquilina on the theme of the rule of law. He warns that the rule of law, at the moment, is at the crossroads and it tends to be taken for granted to such an extent that it ends up breached by those same institutions of the state which are called upon to promote, preserve, defend, nourish and safeguard it. He suggests that institutional failure is at the heart of the contemporary crises of the rule of law - failure by the institutions of the state to carry out their lawful duties with full respect to the observance of the law. Since Malta gained independence the prevailing two-party system has not done enough to strengthen the rule of law. In fact partitocracy is a constant factor why Malta is stooping so low in the observance of the rule of law. But even recent calls by some civil society organisations, for the removal from office of certain public officers, embed disrespect for the rule of law. Is there still hope that adherence to the rule of law can be invigorated and strengthened? A lot will depend on the good will of the two political parties represented in the House of Representatives - and a meaningful realisation on their part that the wellbeing of our democracy and that of the Maltese people indeed depend on improving a sense of justice that the adherence to the rule of law serves.

 

Kevin Aquilina, The Rule of Law À La Maltaise: Selected Writings of Kevin Aquilina, Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta, Msida, 2017, pp. 192


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