From Dr Jose A. Herrera LL.D.

A few days ago Europe commemorated the International Day of Human Rights. It must be recalled that Europe was a precursor in this field. In fact, only a few years after the Second World War, the European States created the European Convention of Human Rights and the relative judicial machinery to enforce such rights.

It has always been argued that certain rights of the individual were inherent and inalienable. This was so, even when sovereigns exercised unlimited discretion and governed in an arbitrary fashion. The European Convention of Human Rights intended to be a document embracing, in a legal framework, these generally accepted basic rights. Thus this document was a gigantic step forward for the citizens of European countries.

In order to make these rights judicially enforceable, the European Court of Human Rights was set up. Maltese citizens, however, for a long time, had only indirect access to this court, since the right of individual petition was granted to Maltese citizens in 1987 when the said Convention became part and parcel of the ordinary laws of Malta. This year, however, there was perhaps an even more important anniversary concerning fundamental human rights in Malta, but this occasion sadly passed us by.

Forty years ago these basic rights were entrenched in Chapter 4 of our new Constitution and our ordinary courts were given the responsibility of upholding them. Thus, in theory, our citizens have for the last 40 years had their basic freedoms and rights assimilated in the supreme law of the land, which not even Parliament could overrun.

In practice, however, it was another matter altogether. Our judiciary had been reared for centuries under a totally different juridical regime. The courts would prove hesitant to intervene on behalf of the private citizen against the overbearing power of the government. Although the principles of iure gestionis and iure imperi had already been outdated concepts of law, in practice these principles where endorsed in the approach taken by the courts. In litigation concerning commercial matters between the government and private individuals the courts meted out justice fairly and squarely.

However, in matters regarding basic civil rights where the courts would have been invited to overrun legislation and executive decisions, the courts would prove to be only too reluctant. For decades one could count the number of decisions taken against the government on the tips of one’s fingers. Thus our courts, at times, would dismiss action after action on the most superfluous of grounds.

That is not to say that there weren’t judges who, against all odds, occasionally would take the plunge and uphold civil liberties, but these decisions were rare and when pronounced would be regarded as monumental justice. For a long time these judges were ostracised by the government of the day and they dispensed justice at great personal sacrifice. The executive would interpret the theory of the separation of powers to the extreme.

When the court overruled the government, this would be interpreted as undue interference by the judiciary of the executive branch. All this has now changed and the more time passes the more audacious our courts are proving to be and this to the benefit of one and all. But we should never forget those members of our judiciary who, at times not so far removed, were the first to take a stand, thereby laying the way for further judicial progress in this regard.

They were undoubtedly the forerunners in the sphere of human rights in Malta. It is right and fitting to take note of the great service they have rendered to the Maltese on this, the 40th anniversary of our independent Constitution and a few days after Europe commemorated Human Rights Day.

On the first floor of our courts of justice, close to the main criminal court, there is a memorial plaque. This lapida commemorates a number of prominent individuals who in difficult times and times of war stuck to their principles and ended up being interned by the British authorities.

Who knows, perhaps it is time to consider

putting up a similar plaque to commemorate those members of the judiciary and the legal profession who in these last 40 years have made fundamental human rights truly inalienable and almost a matter of fact.

Dr Jose A. Herrera LL.D. MP