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All Free and Equal in Dignity and Rights

"Recognition of the inherent dignity and of the equal and inalienable rights of ALL members of the human family is the foundation of freedom, justice and peace in the world." Recent events, both at international and national levels have sparked protests, demonstrations and a call which echoes this proclamation made back in 1948 through the Universal Declaration of Human Rights (UDHR).

So why, in 2020, 72 years after the signing of the Declaration, are we still hearing this call resonate across the so called ‘developed world’? 

From a legal standpoint, the UDHR is merely a declaration, that is, an assertion of the will of the states signatory to it that they will seek to respect the rights embedded in the document. This means that it is not legally binding or enforceable; it is more a matter of ‘state reputation’.

Said declaration has in turn led to the creation and ratification of other charters and conventions which are legally binding upon states. An example close to home is the European Convention on Human Rights (ECHR), which resulted in the establishment of the European Court of Human Rights (ECtHR). This convention and court are completely separate from the European Union institutions and, through the forum of the ECtHR, European states are bound to safeguard the rights of their citizens. Failure to do so would result in hefty penalties being paid by contravening states as compensation to the citizen/s whose rights would have been infringed.

However, the safeguard of human rights being a state liability and not a private citizens’ liability, means that awareness of individuals’ responsibilities towards one another has been lacking, with people who have a disregard for the inherent dignity of others, sometimes engaging in brutal acts, even ones condemned by the laws of the State.

So where does the common citizen come into play? As explained, human rights are classically rights binding upon the state and are not binding between individuals. It is assumed that inter-citizen relations are then safeguarded by the national laws of a state. However, it has been argued with some degree of success, that the mere fact that another citizen or legal person has breached one's fundamental rights, is a result of the state’s failure to set up the necessary mechanisms that ensure and safeguard the enjoyment of that right.

Human Rights in Malta

Malta is a signatory to the ECHR, its Constitution contains a number of declarations that reflect those of the UDHR, and the European Convention Act (Chapter 319 of the Laws of Malta) has ratified the ECHR, so that this Convention is enforceable as part of Maltese Law.

In Malta, it is possible to file a case claiming that ones fundamental rights and freedoms have been breached, through an application to the Civil Court in its Constitutional Jurisdiction. Such a case should be directed against the State. However, there have been instances where our courts have acknowledged that a private party is able to stand as defendant in a constitutional case.

What is particularly interesting is that a human rights case may be filed not only if there has been a breach but also if such fundamental right or freedom “is likely to be contravened”. Moreover, it is not only the victim of said breach who may file a case claiming a contravention, but also any third party who feels that someone’s fundamental rights may be violated. One does not have to be a Maltese citizen to file a case in the Maltese Courts, but “any physical person, non-governmental organisation or group of individuals” may do so. It is then up to the Court to assess whether a state has truly failed in ensuring an individual’s fundamental rights and freedoms.

Therefore, from a legal standpoint, various safeguards have been put in place by the Maltese legislator to safeguard the rights of all within its territory and to make them as widely enforceable as possible.

As Lord Chief Justice Hewart famously said “Not only must Justice be done; it must also be seen to be done" and hence the State has a responsibility to show that it is truly ensuring that the inherent dignity and the equal and inalienable rights of ALL in its territory are being safeguarded.

Dr Anthea Witney Turner

Employment Law - Civil Law - Personal Injuries

This Article is not to be considered as legal advice. However, should you feel that you are experiencing a violation of your fundamental rights and freedoms kindly contact us so we can assist you.

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