Author: Tyrone Grech, Associate
The Constitution is the law of the citizens of the State, the law which dictates the thrust of a State and that law which allows the people to rule and be ruled through it. From time to time, a lot is said as a result of a momentous event affecting a State, whether locally or internationally, but few are those who truly appreciate the fundamentality which the Constitution represents to citizens and the rights which emanate therefrom.
Human rights and their protection are some of the most important elements of every Constitution. These refer to those rights which every human being is entitled to enjoy and which the State is by duty bound to protect. The human rights as contained in our Constitution should however not be construed exhaustively. Indeed, they are to be supplemented by the European Convention on Human Rights (ECHR) which has been enforceable in Malta since Act XIV of 1987, today Chapter 319 of the Laws of Malta.
Protection of human rights carries with it an obligation on the State to safeguard some of the most basic rights which most take for granted. These include the right to life; the right not to be held in slavery; the right not to be tortured; right to a fair trial before an independent and impartial court or tribunal; the right to respect private and family life; the right to the peaceful enjoyment of one’s own property; amongst several others.
Separation of Powers and the Rule of Law
Separation of powers and the rule of law are two other fundamental notions of constitutional law. These terms are very widely, but sometimes, very loosely, used. Likewise, these terms should not be unnecessarily limited to particular concepts but nor may they be given too much a wide definition as incorrect application might result in the delivery of the wrong message.
The rule of law is a politico-legal concept developed by Dicey which ‘guarantees the rights of the individual, the independence of the Judiciary and the free expression of the will of the electorate’ (Borg, 2016).1 Separation of powers is on the other hand a doctrine developed by Montesquieu who argued for a strict separation between the three organs of the State, being the legislative, the executive and the judiciary.
The term ‘separation’ however does not necessarily mean a rigid division amongst the three powers of the State. In fact, while independence and impartiality are of the essence between the three powers, a level of adequate interdependence is still required in order for the proper functioning of the State. The balance that thus needs to be found is one which results into a workable government.
For instance, a court of law (composed of members of the judiciary) can decide that a person is entitled to a particular right only following the interpretation of legislation (passed by members of parliament, being the legislative entity). Another example of interdependence relates to the executive, in layman’s terms the Government, which is responsible for the proper administration of the State and remains answerable to its people, if need be through enforcement of the latter’s rights in a court of law.
Separation of powers and the rule of law are thus necessarily two sides of the same coin where the proper functioning of the former should result in the proper application of the other. Reference is made to the term ‘should’ since for the rule of law to be safeguarded, each individual’s human rights must necessarily be appropriately guaranteed. In turn, such guarantee may only be achieved through the application of the principles forming the rule of law. Lord Bingham, an eminent British judge, had attempted to define the rule of law as that concept which includes accessibility and certainty of the law, equality before the law, exercise of power within the strict boundaries of the law, and the assurance of a fair trial, consisting amongst others, sufficient and proportionate remedies and sanctions.
The Constitution (and constitutional law) constitute the basis for a democratic State governed by the rule of law which enables the majority to have their way whilst at the same time ensuring that the minority have their say. Such state of affairs may however only be achieved where there is a functioning system of government which ensures adequate safeguards in line with separation of powers and where a culture of checks and balances prevails over one of favours and chances.
1 Tonio Borg, A Commentary on the Constitution of Malta (Kite Group 2016), 22.
The above article is published for general information purposes only and does not constitute legal advice. For queries relating to constitutional law in Malta, contact us here.