The Constitution and the

European Convention on
Human Rights – conflicts,
similarities and contrasts

TONIO BORG

In this article, Dr Tonio Borg examines the conflicts, similarities and contrasts
between the Constitution and the European Convention on Human Rights.

TAGS: Constitution, European Convention on Human Rights

Dr Tonio Borg LL.D, Ph.D, K.O.M. is a former European Commissioner and

former Deputy Prime Minister and Minister of Foreign Affairs of Malta. He
is a resident senior lecturer in public law at the University of Malta.
T he juridical relationship in Malta between the Constitution and the European
Convention on Human Rights has given rise to interesting issues and problems,
cases, and conflicts, but also similarities and contrasts. To what extent does the
Convention provide a better protection to the individual, and what happens when
there is a conflict between the two, which one does prevail?

The conflict appeared on the jurisprudence horizon practically immediately after

the incorporation of the Convention in Malta in August 1987. The Constitution
had afforded a protective cover over the main Codes of law in Malta from the
human rights provisions, an immunity which came to an end in 1991. One such
immunity, relating to pre-1962 laws, still applies when it comes to the right to
property under Article 37 of the Constitution. The Convention of course does not
accept any such immunities or exceptions to its protection. Therefore, which shall
prevail: the immunity contained in the Constitution, or the Convention which till
this very day is only an ordinary law- though even this latter point has been
debated and contested as well as we shall see.

The introduction of the European Convention on Human Rights into the Maltese
legal system followed a very tortuous path. Malta joined the Council of Europe in
1965. It signed the European Convention in 1966, and ratified it in 1967, with two
exceptions, the compulsory jurisdiction of the European Court of Human Rights
and the individual right of petition. This therefore meant that (a) a signatory state
party to the Convention could refer a case against Malta before the European
Commission of Human Rights, but not the European Court; and the individual had
no recourse at all to the Strasbourg organs and institutions. On 30 April 1987,
Malta ratified the compulsory jurisdiction of such Court and the individual right of
petition. In August 1987, the Maltese Parliament incorporated the Convention in
Maltese law1 so that any person could institute a human rights action under the
Convention before the Maltese courts as well. In such an action one could include
also a human rights grievance under the Constitution.

1. Conflict between Constitution and Convention

The first case where the conflict arose was in the Pullicino case2. Just two years
after Act No. XIV of 1987 (Chapter 319 of the Laws of Malta) had been enacted.
Applicant had been charged with wilful homicide; as the Criminal Code was at
that time, no bail could be granted by the Magistrate even if he felt that this was
deserving. The Criminal Code was at that time protected from the human rights
provisions of the Constitution. Applicant successfully argued that according to
1
Act No. XIV of 1987, Chapter 319 of the Laws of Malta.
2
Dr L. Pullicino vs Commander Armed Forces et (Constitutional Court) (CC) (12 April 1989)
(Vol.LXXIII.I.54).
Article 5 of the Convention, the lack of discretion by the judicial officer in
granting him bail, meant that no proper examination of whether his continued
detention was required could be made. Applicant wisely challenged the Criminal
Code provision on the basis of the Convention rather than the Constitution. Did
this immunity provision prevail over the European Convention; and the answer is
that there is nothing at all to prevent the legislator from granting more rights to the
individual not contained in the Constitution; of course, the ranking of such
Convention right in Malta would be that of ordinary law. What the legislator could
not do was to grant less rights than those contained in the Constitution.

This form of parallel protection has been applied ever since. It came to a head in
the case 3 the Nationalist Party had instituted regarding the loss of two
parliamentary seats owing to an error by the counting agents during the 2013
general elections. The Party based its case on the right to a free and fair election
under Protocol 1 to the Convention. Some had then argued that the only way one
can contest an electoral result was through the electoral provisions contained in
the Constitution and the electoral laws4. The Court ruled otherwise. It stated that
this was a human rights case, transcending any electoral contestation under any
other law including the Constitution. This makes legal and practical sense; for if it
were otherwise, it would have meant divesting the Maltese Courts from
scrutinizing the case, without in any way preventing a reference to the European
Court, where Protocol 1 would be applied irrespective of what is contained in the
Constitution of Malta.

2. Differences between Constitution and Convention

provisions
A quick survey of the main provisions of both legal instruments reveal significant
similarities. There is no doubt that the constitutional legislator was inspired by the
provisions of the European Convention. There are however striking differences.
For instance, there is no right to private and family life in Chapter IV of the
Constitution even though such right is mentioned in the non-justiciable preamble
to the human rights chapter. The list of prohibited grounds for discrimination is
longer than that found in Article 45 of the Constitution, indeed the list is indicative
rather than exhaustive as is the case with our supreme law. But then Article 14 of
the Convention applies only in the enjoyment of the rights and freedoms set forth
in the Convention, which is not the case with Article 45.

The right to property in Malta under Article 47 is in actual fact a right to adequate
compensation ex post facto, but does not include a right to contest the validity of
the taking possession of private property itself. This on the contrary is guaranteed
in Article 1 Protocol 1 of the Convention.

3
Nationalist Party et vs Electoral Commission et (CC) (25 November 2016) (26/13).
4
See Kevin Aquilina: ‘An Irreconcilability’ Times of Malta (17 June 2016) available online on
<https://timesofmalta.com/articles/view/An-irreconcilability.615718>.
Another notable difference ictu oculi is that while the Constitution in establishing
the limits to these rights refers to the concept of reasonableness such as that a
restriction has to be reasonably required in some public interest, or that something
had to be done which ‘is reasonably justifiable in a democratic society’, in the
case of the Convention, the word used is ‘necessary’. Is the restriction necessary
in a democratic society? There is no doubt that this standard is stricter than the one
adopted by the Maltese Constitution.

However, the most significant difference relates to the right to a fair hearing. The
Maltese Constitution is crystal clear that as regards criminal proceedings only a
court established by law can preside over such proceedings, while civil or non-
criminal proceedings may be decided either by a court or an adjudicating
authority. There is a historical reason for this distinction. When the 1961
Constitution which incorporated the first human rights chapter in a supreme law,
and which paved the way for independence in 1964, was being discussed, the
political climate in Malta was tense. Following the resignation of the Labour
Government in April 1958, and the return to direct rule in 1959, the two main
political parties were clamouring for independence. Under direct rule, some
Maltese had cooperated with the British in running the administration. There was
fear that a newly elected government might seek revenge in some way or another.5
Consequently, it was established that only a court presided over by a judge or
magistrate could decide criminal cases. This issue was decided by the
Constitutional Court in Police vs Emmanuel Vella6 where the apex Court in Malta
drew this distinction and held that a lay tribunal could not decide a criminal case.
This protection was later extended to cover also hefty administrative penalties
(Federation of Estate Agents,7 Rosette Thake8, Angelo Zahra9).

3. Pre-1987 Jurisprudence: Convention and Constitution

It is important to note that even prior to the ratification of the right of individual
petition in 1987, and the acceptance of the compulsory jurisdiction of the
European Court, the jurisprudence of the latter Court was already a source of
interpretation of Chapter IV of the Constitution which, after all, in general, was
based on the provisions of the Convention.

A notable case where the Constitutional Court affirmed a distinction, in my view

erroneous, between the Convention and the Constitution was in the doctors’

5
See Report of the Malta Constitutional Commission (HMSO (1961) (London): 27 ‘In view of threats of trial by
‘peoples’ tribunals’ the provisions of section 21(2) of the Nigerian Constitution might be strengthened by
substituting for the word ‘court’ a form of words including the jurisdiction to try criminal offences to the existing
courts in Malta.’
6
(CC) (28 June 1983).
7
(CC) (3 May 2016).
8
(CC) (8 October 2018).
9
(CC) (29 May 2015).
case10. In that case, striking medical doctors in the public service had been locked
out of state hospitals and then prohibited by law from exercising their profession
in private hospitals. The doctors alleged that this amounted, inter alia, to an
indirect form of forced labour. Arguing that our Constitution, unlike the
Convention, prohibited only forced labour, and not also compulsory labour, the
Constitutional Court decided that indirect forms of forced labour while prohibited
under Article 4 of the Convention, were not so prohibited under Article 35 of the
Constitution.

In another case, the question arose regarding the right to engage the services of a
lawyer in criminal proceedings. The Constitution in Article 39 protected the right
of the accused to engage the services of a lawyer, while Article 6 of the
Convention specified that such right was to a lawyer ‘of one’s own choosing’. In
Police vs Michael Falzon11, the issue arose whether a law prohibiting lawyer
members of Parliament from defending persons in certain criminal cases, was in
line with this right. The Constitutional Court stated that it was not, arguing that
once applicant was ready to pay for the services of a lawyer, he had a right to
engage any licensed lawyer, even though the words ‘of one’s own choosing’ were
not included in the Constitution.

4. Legal Standing or Juridical Interest.

Our Courts have ruled that any constitutional action other than one covered by
Article 116 of the Constitution (actio popularis), requires applicant to prove
juridical interest. This is based on two premises: (a) that Article 116 states that
non-human rights actions do not require personal interest; arguing contrario sensu
therefore, human rights actions, do; and (b) Article 46 of the Constitution requires
that applicant proves that a human rights infringement occurred ‘in relation to
him’. This has been extended to cover any non-human rights action, even one
relating to the validity or otherwise of an election of a member of Parliament, or
an action alleging infringement of the neutrality articles in our Constitution.12

The wording of Article 46 including the use of the words ‘in relation to him’ are
repeated in Article 4(2) of Chapter 319 when applicant institutes a human rights
action under the European Convention.

This juridical interest has been interpreted in a strict manner, applying, in my view
erroneously, civil law concepts of what amounts to such interest and quoting
renowned Italian civil law writers such as Mortara in the process.13

10
Walter Cuschieri et vs Prime Minister et (CC) (30 November 1977).
11
(CC) (26 September 1989) (Vol. LXXII.I.48).
12
For criticism of the application of juridical interest to constitutional cases, see Tonio Borg, Juridical Interest in
Constitutional Proceedings (GħSL On line 17 February 2017) and Giovanni Bonello, When Civil Law Trumps the
Constitutional Court (Id-Dritt XXIX) (GħSL) 427.
13
See Emilio Persiano vs Commissioner of Police (FH) (30 May 2002) (Hon. Mr Justice JR Micallef).
Although when it comes to filing a human rights action in Malta under the
Constitution or the Convention, the wording relating to interest is the same, the
situation is not so when one comes to institute an action before the European
Court once all domestic remedies have been exhausted. The Convention is
adamant that applicant has to prove that he is a victim of a violation of the
Convention. It would appear that the word ‘victim’ is a stronger term than the
phrase ‘in relation to him’ in Article 46. Yet a cursory examination of the
European jurisprudence shows that the European Court has interpreted these
words in a more liberal fashion than how the Maltese courts have interpreted the
words ‘in relation to him’. Consequently, the European Court has admitted
potential victims, such as homosexual couples whose action in private were
criminalised by law, even though there was no actual prosecution against them;14
similarly, in another case, a non-governmental organization was allowed to
challenge an order preventing pregnant women in Ireland from leaving their
country to legally perform an abortion outside Ireland.15 In Malta the strictest
interpretation has been given to juridical interest; to the extent that two election
candidates who alleged that they should have been elected in the general election
proper rather through an electoral corrective mechanism had their case dismissed
owing to lack of juridical interest once they had been elected to Parliament just the
same.

5. Legal implications and problems of Parallel Protection

These are best explained in the case Nationalist Party et vs Electoral Commission
et. 16 In that case relating to the right to free and fair elections under the
Convention, respondents claimed that Chapter 319 did not prevail over the
Constitution and therefore, the First Hall even in its constitutional jurisdiction,
could not have any power over matters such as the validity of elections over which
only the Constitutional Court enjoys jurisdiction. It argued that Article 63 of the
Constitution provides in the most clear manner that questions related to the
validity of elections of members of Parliament are to be decided exclusively by
the Constitutional Court. The court of first instance, therefore, had no jurisdiction
to declare the 9 March 2013 election result as incorrect or that such result be
rectified. Chapter 319 was subject to the Constitution; the Constitution provided
that electoral matters had to be decided directly by a court presided over by three
judges namely, the Constitutional Court as a court of first and last instance.

The Court ruled that the legislator wanted to add to the rights found in the
Constitution and that there was no conflict between the electoral mechanisms,
procedures, and remedies envisaged in the Constitution on the one hand, and those
contained in the sections protecting the right to free and fair elections under
Protocol 1, both of which formed part of the Maltese legal system. The Court
14
Dudgeon v.United Kingdom (ECrtHR) A 45 (1981).
15
Open Door and Dublin Well Women v. Ireland (A246 (1992) 15 EHRR 44 para 42 pc.
16
Constitutional Court (CC) (25 November 2016).
therefore, adopted the parallel protection theory, and the rule that Convention
rights add to the constitutional ones; they cannot subtract from them.

A similar attitude had been adopted in Allied Newspapers Limited vs Attorney

General et decided by the Constitutional Court on 2 December 2003. Article 47(9)
of the Constitution still provides that any pre-March 1962 law as it stood on the
promulgation of the Independence Constitution, can never be declared in conflict
with the human rights provisions of the Constitution. In that case, property had
been expropriated under Chapter 88 which had been enacted in the thirties. When
this action by government was contested, Government pleaded, in line with the
following syllogism, that:

(a) according to Article 47(9) anything done under the authority of Chapter 88
could be considered to be in breach of Article 37 of the Constitution (the
right to property section);
(b) this meant that anything done under and according to Chapter 88 was
according to the Constitution, constitutionally valid;
(c) Chapter 319 is an ordinary law;
(d) Consequently, one cannot review under Chapter 319 any action under a law
which is protected by the Constitution, since otherwise one would be
making use of an ordinary law Chapter 88, to review the Constitution.

The Court remarked as follows:

Frankly speaking, this Court has not seen this type of sophism for some
time in cases brought before it. What appellants are evidently and
conveniently forgetting is that Chapter 319, through the European
Convention and its Protocols reproduced in the First Schedule to that
Chapter, grants protection to the fundamental rights and freedoms
which is altogether independent of that provided for in the Constitution.
In fact, it is well known that there are certain provisions of the
Constitution which are more liberal than those of the Convention (e.g.
before the introduction of Article 4 of the 7th Protocol in the First
Schedule, it was the Constitution and not the Convention which
embraced the principle of ne bis in idem (Article 39(9)). There is
therefore nothing extraordinary-as is being held by appellants – that
what was done under Chapter 88 is considered in conflict with Article 1
of the First Protocol to the Convention, even though it is not in breach
of Article 37 of the Constitution, owing to what is provided for in Article
47(9) of the said Constitution.

This does not mean that these conflicts have always been considered as not being
conflicts at all. One eminent jurist 17 opined as regards the electoral case
abovementioned, that the Constitution prevailed over Chapter 319. In this respect
he criticized the judgments of the civil court as a court of first instance which has
acceded to the requests of the PN, later confirmed by the Constitutional Court.
This refutes the position that the Convention can grant more rights not contained
in the Constitution. The author expressed a contrary opinion.18

The contrary argument, as shall be explained, is also not valid; namely, the fact
that the Constitution affords more or better rights than the Convention, does not
mean that our constitutional provisions are in violation of the Convention, a
violation which can give rise to an action before the European Court. This is
confirmed by the fact that Article 60 of the Convention provides that:

Nothing in this Convention shall be construed as limiting or derogating

from any of the human rights and fundamental freedoms which may be
ensured under the laws of any High Contracting State or under any
other agreement to which it is a Party.

In practical terms this means, for example, that the fact that the Convention allows
criminal proceedings to be conducted before an adjudicating authority while our
Constitution does not, does not mean that our constitutional provision is in breach
of the Convention.

6. Enforcement of European Court judgments

This issue has raised thorny and complex issues. How does one transform a
favourable judgment into concrete terms in Malta? Act No. XIV of 1987
introduced Article 6 which states that following a judgment by the European Court
an individual may file an application before the Constitutional Court to enforce
that judgment. Is it possible that this provision was only meant to cover the case of
a failure by the respondent Government to pay expenses, damages, and costs
indicated in the judgment? Or was it intended to allow the Constitutional Court,
which incidentally would have previously ruled against plaintiff, thereby
provoking a reference to the European Court to give flesh to the dry bones of the
European Court judgment. Everyone knows that the European Court never annuls
a law or government action, but, being an international court, merely declares that
a situation, whether arising from a law or an administrative measure or action, is
in violation of the Convention. It is up to the political organ of the Council of
Europe, namely the Committee of Ministers, to conduct the follow-up, and ensure
that the proper domestic law changes are affected.
17
Professor Kevin Aquilina, ‘An Irreconcilability’ Times of Malta (17 June 2016) available online on
<https://timesofmalta.com/articles/view/An-irreconcilability.615718>. With reference to the PN electoral case he
stated: ‘the remedy under the European Convention Act is not additional to the constitutional remedy; it is in
contravention thereof. The solution to such legislative conflict is parliamentary not judicial’.
18
See Tonio Borg, Constitution and Convention, Times of Malta (22 June 2016) available online on
<https://timesofmalta.com/articles/view/Constitution-and-convention.616342>.
In the Aloisio judgment19, the Constitutional Court did exactly the opposite. It
ruled that it would only enforce what is expressly stated in the judgment. It would
not read between the lines or translate the provisions of the judgment into a
practical remedy, in that particular case ordering the re-appointment of an appeal
application which had been deemed abandoned, a fact which was considered to be
in breach of the right to a fair hearing by the European Court.

One eminent jurist,20 has criticized the mere existence of Article 6 of Chapter 319
arguing that with the ratification of the Convention and the compulsory
jurisdiction of the European Court, the moment a judgment is delivered by that
Court, it has immediate effect in Malta without further ado.21

7. Is the Convention part of the written Maltese

Constitution?
When Malta joined the European Union in 2004, an amendment was introduced to
Article 65, an unentrenched part of the Constitution. The amendments are
indicated in italics in the following excerpt:

Subject to the provisions of this Constitution, Parliament may make

laws for the peace, order and good government of Malta, in conformity
with full respect for human rights, generally accepted principles of
international and Malta’s international and regional obligations, in
particular those assumed by the treaty of accession to the European
Union signed in Athens on the 16 April 2003.

These amendments were introduced by the European Act 2003 (Chapter 460 of
the Laws of Malta), and since at that time there was no consensus on Malta’s
membership of the European Union, Government chose a section to introduce
such amendments which could be altered by a majority of fifty per centum plus
one of all the members of the House (absolute majority) to introduce a reference to
the EU.

In the Vodafone case, 22 the Constitutional Court ruled that this article gave
constitutional status to the Treaty of Accession and, consequently, EU law was
part and parcel of the Constitution; meaning that any provision in Maltese law
which ran counter to the EU treaties, would be unconstitutional. Applying the

19
Raphael Alosio et vs Attorney General et (CC) (28 September 2012).
20
Giovanni Bonello former judge of the European Court of Human Rights (1998-2010).
21
See Giovanni Bonello, ‘Bad law? Worse Remedy’ Times of Malta (2 May 2012)
<https://timesofmalta.com/articles/view/Bad-law-Worse-remedy.417940> and by the same author ‘How the
Constitutional Court betrays Malta’s Constitution’ Times of Malta (19 May 2013)
<https://timesofmalta.com/articles/view/How-the-Constitutional-Court-betrays-Malta-s-Constitution.470259> and
‘The Supremacy delusion Unconstitutional Laws and Neo Colonial Nostalgia’ in the President’s Forum (Part One)
(Office of the President) (2013).
22
Vodafone Malta Ltd vs et Attorney General et (CC) (23 March 2014).
same reasoning to ‘Malta’s international and regional obligations’, one can
reasonable argue that the ratification of the European Convention creates such an
obligation, and therefore ranks at par with the constitutional norms. If this
interpretation were to be accepted by the local Courts, the possible conflict
between the Constitution and the Convention would be mostly resolved.

8. Conclusion

The co-existence of these two legal instruments, the Constitution of Malta and the
European Convention has been generally peaceful and reasonable. The Court has
avoided an application of too formal or byzantine an interpretation, accepting the
parallel protection theory in spite of some resistance. What is certain is that the
momentous decision to incorporate the Convention in Maltese law has changed
the legal landscape; it has changed our laws, practices and traditions, but above all
the new access to an international court of human rights, at least in theory, is
supposed to have made the local Courts vigilant about aligning our laws and
practices with international human rights standards. As rightly pointed out by
Judge Emeritus Giovanni Bonello:

The European Court of Human Rights is just as influential in what it

determines, as it is through the mere fact that it is there. The reality of
its existence, in itself, exercises enormous restraint on states subject to
its jurisdiction. Since 1987 the three organs of the State – the
Legislature, the Executive and the Judiciary- are on notice that theirs is
no longer the final word. They know they have to meter every step they
take against the strictest parameters of respect for human rights. The
awareness that a supranational authority will scrutinize all their
activity, that it will condemn them in damages and expose them to
international opprobrium should they be found lacking, has, in itself,
had a tremendously salutary effect in keeping the court, Governments
and Parliament on the straight and narrow.23

The Constitution of Malta and the European Convention are today inseparable and
irrevocably intertwined. They offer a double protection to individuals seeking
redress. They exist side-by-side supplementing and complementing each other.
They serve as a shield of protection from arbitrariness and injustice. Long may
this relationship endure!

23
Giovanni Bonello: ‘Malta’s Debts to the European Court of Human Rights’ (2014)
<http://lawjournal.ghsl.org/viewer/85/download.pdf>.