There is never a dull moment in Malta, thanks to our government that makes us the laughing-stock of all Europe. Government’s attack on civil liberties continues unabated. A new chapter is being opened with Cabinet’s approved proposal to be soon inscribed in the Constitution of Malta that will re-dimension, albeit in a reactionary and backward fashion, the maximum 48-hour arrest rule, a progressive rule that has been with us since independence.
Article 34 of the Constitution deals with the protection from arbitrary arrest or detention. All Maltese have enjoyed that right since the birth of the state of Malta. Next September, this right, like Malta, will celebrate its fifty-ninth birthday unless it is truncated by our ‘progressive’ government that falsely: (a) claims to respect the rule of law, and (b) safeguards the enjoyment of human rights and fundamental freedoms. Yet its deeds unstintingly indicate otherwise.
Article 34(3) states that any person who is arrested or detained by the Police ‘shall be brought not later than forty-eight hours before a court’. If this is not done, s/he must be released immediately. Otherwise, it will amount to an illegal arrest or detention.
Through Bill No 49 of 10 March 2023, government, in conformity with its secretive unwritten cabinet adopted policy to destroy human rights and fundamental freedoms in Malta, is proposing to amend article 34 of the Constitution. In the words of the ‘Objects and Reasons’ clause of the Bill, it is intended ‘to provide for the possibility of the period of arrest of persons reasonably suspected of having committed serious crimes liable to a maximum punishment exceeding twelve (12) years imprisonment so that the investigators will have more time to obtain and preserve evidence. The Bill provides for a proper balance between the protection of the public and the guarantees of the rights of the suspected person through the concurrent introduction of procedural safeguards before a judicial authority’.
The wording of the Bill thus deceitfully implies that from 1964 till 2023, Malta has been living in a contradiction as there was no ‘proper balance between the protection of the public and the guarantees of the rights of the suspected person’. But, thanks to our government that has suddenly become very much conscious of this ‘proper balance’, it is offering a robust solution that will now henceforth make it possible to achieve such balance! Of course, between 1964 and 2023, when the police investigators did not have enough time to interrogate a detained person for 48 hours for a crime that was punished by imprisonment for more than twelve years, there were no convictions by our criminal courts for such crimes and all criminals were set free with the natural consequence that the prison was relatively free of inmates of such crimes and the criminal justice system on the verge of collapse, with next to none case backlogs, with a handful of pending cases to hear and determine!
As though government is shy from disclosing in the Objects and Reasons of the Bill the exact total amount of days that a person may be detained/arrested following passage of the Bill, the latter states that ‘the period of forty-eight (48) hours within which the person arrested or detained shall be brought before a court, [may be extended] by other periods not exceeding a further eighty-four (84) hours in total’. In other words, the 48 hour (2 day) maximum arrest period will be extended by a further 84 hours (three and a half days) to a total of 5 days and a half (132 hours) of arrest/detention. If my mathematics are correct, the extension is more than doubled; it is nearly tripled.
This amendment, if adopted by a two-thirds majority in the House of Representatives as it seems likely to be, and disappointingly the Opposition are on board, will relegate the 48-hour rule to the dustbin of constitutional and human rights history and open the door for the creation of a Police state. This is, undoubtedly, from the constitutional and human rights points of view nothing but repressive of constitutional and human rights and violative of the acquired rights of individuals enjoyed since 1964, a constitutional rule not to be detained for more than forty-eight hours by the Police. Prime Ministers Dom Mintoff and Lawrence Gonzi remain famous for having reduced workers’ annual holidays; Robert Abela’s legacy is the death knell of human rights and fundamental freedoms. The maximum 48-hour arrest human right will no longer retain the status of a human right as we have known it so far but will be diluted considerably thanks to an inefficient police force.
If this measure is not a reactionary measure that it typical of extreme right and extreme left wing dictatorial regimes, then what is? Of course, it will make Hitler, Mussolini, Stalin, Pinochet, and others of their ilk, all proud of government’s latest soon-to-be achievement – with other previous measures – of eating up the enjoyment by the Maltese of human rights and fundamental freedoms. It might also make all these dictators blush at the political acumen of our far from ‘democratic’ government who wants to turn our state into a tyrannical one.
Gone are the times, it now seems, when government referred to itself as progressive and a champion of civil liberties. Indeed, this Bill runs counter to government’s avowed liberalist policy for, on the one hand it boasts of having introduced civil liberties in the form of LGBTIQ+ rights and others in Malta and, on the other hand, it has been habitually torpedoing human rights and fundamental freedoms.
This latest Bill helps us to recognize, if any such evidence was needed, to what extent government is a wolf in sheep’s clothing. When Charles Perrault, in 1697, wrote the popular fairy tale of ‘Little Red Riding Hood’, little did he anticipate that the government of Malta would, centuries later, be typifying the villain of his story – the wolf – who portrayed himself as a friend but entertained the malicious intention of eating Little Red Riding Hood and her grandmother.
That this government has made the erosion of human rights at the centre of its bad governance and policy is no well-kept secret. Only in this legislature, it has introduced a bill to chip off the right to life of unborn, unprotected, and vulnerable innocent persons from their God-given right to life; then it wanted, through another Bill, to control inquiring magistrates by interfering in the independence of the judiciary by obliging them to involve in those strictly judicial proceedings, by legal diktat of course, Occupational Health and Safety Authority personnel who are answerable to the government of the day and not to the judiciary; it has mounted an attack on the judiciary for alleged underperformance whilst failing miserably from affording them appropriate tools to carry out their constitutional and lawful duties; and continues to ignore through its propaganda broadcasting services the constitutional rule of impartiality in news and current affairs programmes on its owned and licenced broadcasting services thereby breaching the Constitution and also freedom of expression of non-government loyalists. Individually, these measures might, perhaps, appear at face value innocuous and necessary; however, taken together their effect is catastrophic.
The above reminds me of what Paster Niemoller once wrote: ‘First they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me’.
Now, as though government had not gone far enough in employing the chisel to chip off the little that remains of our human rights and fundamental freedoms, it wants to destroy another vested right that the Maltese have enjoyed since 1964. If these (and other government measures not included hereabove) are not an audacious frontal attack on human rights and the rule of law, then what further prove do we need to be induced to conclude that Malta is slowly, progressively, but surely, losing its democratic credentials and has abandoned any rule of law pretensions it might have had in the past, and all this thanks to our ‘progressive’ government and its lapdog compliant Opposition?
Whilst the maximum 48-hour rule has been subject in the past to abuse, the independent judiciary had ensured that forty-eight hours meant forty-eight hours and not such enlarged period as the Police in their absolute discretion determined. Indeed, the Court of Magistrates (per Magistrate Joseph A. Filletti) ruled against the elastic chewing gum interpretation of human rights on 4 March 1981 in Police v. Joseph Galea et: it was no longer possible to release an arrested person and a few minutes later re-arrest him/her and detain him/her for a further forty-eight hours as though the previous 48 hours detention were inexistent. The procedure that in 1981 the courts found to be in breach of human rights, government now wants to overrule the court judgment by constitutionalising the then and now illegal – and far from progressive – conduct of the past. Clearly, the lessons of history have not been learnt by government that wants to reintroduce what was nothing more and nothing less than an abuse of power and sanctify it in the Constitution. Totally unbelievable! But still notwithstanding true. The time is ripe to change our Constitution to refer to Malta not as the ‘Republic of Malta’ but as the ‘Banana Republic of Malta’!
How can therefore government be trusted when cabinet members, out of lip service, falsely utter that Malta respects the rule of law and human rights when the writing on the wall clearly and unequivocally demonstrates otherwise? It is a case of a ‘progressive’ government gone rotten. Bill No. 49 of 2023 marks another sad day for Malta in so far as enjoyment of human rights and fundamental freedoms are concerned. It is a pity that once again government has got it all wrong.
It is also utterly disappointing to learn that the dormant Opposition agree in principle with the backward leaning Bill with the caveat that the 84 hours should be instead reduced to 72 hours. This will be its battle horse in the discussion of this Bill, thereby leading me to conclude that the Opposition are superb at seeing the wood for the trees. The detail, for the Opposition, is by far more important than the principle involved. More short-sighted than that it cannot be. Unfortunately, even the Opposition is complicit, through its avowed pronouncement of its stand on the Bill, in attacking citizens’ rights and in disparaging human rights and fundamental freedoms. In this way, through the Opposition’s connivance in enacting Bill No 49 into law, human rights will inevitably continue to suffer and be reduced in Malta with no paladins, perceived or real, to defend them let alone augment them as one would have expected 59 years later. This measure will hark us back to colonial times.
One would have expected that the Opposition would keep government in check and withhold its indispensable consent for the regressive constitutional amendment to be enacted into law. But, alas, instead of standing up to government's unreasonable liberty restricting measure, it hastily jumps on board on government’s band wagon to ensure that not only government but even the opposition and, therefore, Parliament contribute to a diminution of our fundamental rights. Indeed, it is a case of one step forward in LGBTIQ+ rights and 20 steps backwards in human rights and fundamental freedoms’ achievements.
It is a real pity that the Opposition is in cahoots with the government for if it is not the Opposition, supposedly the alternative government, who will defend human rights breaches against the might and arrogance of government, who will? Malta is thus condemned to eternal damnation with a repressive government and a next to irrelevant, if not complacent, Opposition. Even civil society organizations and NGOs are not upset by this measure and, through their silence, have given it their tacit thumbs-up.
Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta