Introduction

• Author: Ellul, Tonio
• Pages: 13-14

13

INTRODUCTION

The national legal system

The Maltese C onstitution contains limitations on parliamentary sovereignty. An extensive

and judicially enforceable bill of rights, as w ell as judicial review of the constitutionality of

legislation, is incorporated therein. It sets limitations on governmental power and provides

remedies for cases of abuse, guaranteeing protection for the fundamental rights and

freedoms of the individual vis-à-vis the state, and it provides for independent courts to

secure that protection.

Thus, the Constitution is supreme over the executive and legislative branches, and the

constitutional system provides f or a system of checks and balances among and between

the executive, the legislature and the judiciary. The Constitution of Malta was amended in

April 2001, entrenching the system of local government. It is now stipulated that the

‘territĠry Ġf Malta shall be divided intĠ such number Ġf lĠcalities as may by law be from

time to time determined, each locality to be administered by a Local Council elected by the

residents of th e locality and established and operating in terms of such law as may from

time tĠ time be in fĠrce’.42

The Constitution provides for the setting up of the legislature, and all bills must be

presented to Parliament. Once they are approved, receive the consent of the President and

are published, they become acts of Parliament, with the full force of law. Acts of Parliament

may empower the Minister responsible for the said act to issue regulations, orders or bye-

laws by virtue of legal notices. A legal notice is deemed to be subsidiary legislation, having

the full force of law , wi thout the need t o obtain parliamentary approval, given that the

power to issue the regulations, bye-laws and/or orders was approved in the principal act.

It is also pertinent to note that Malta is a party to several international human rights

treaties and has ratified various conventions such as the United Nations Convention on the

Rights of Persons with Disabilities.43 Treaties and conventions do not automatically become

part of domestic law. They would need to be incorporated into domestic law by legislation.

Until such time, therefore, th e provisi ons of the relative Conv entions cannot be directly

enforced by the Maltese courts. It should be noted, however, that the European Convention

on the Protection of Human Rights and Fundamental Freedoms was incorporated into

domestic law in 1987, 44 giving Maltese citizens the right to individually petition the

European Court of Human Rights once domestic remedies have been exhausted.

List of main legislation transposing and implementing the directives

Malta has introduced a number of specific legislative enactments to implement Council

Directives 2000/78/EC and 2000/43/EC. The main legislative enactments include:

- Employment and Industrial Relations Act (EIRA),45 adopted on 2 December 2002.

The material scope is employment, while the grounds covered are marital status,

pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political

opinion or membership of a trade uniĠn Ġr an emġlĠyers’ assĠciatiĠn. The EIRA is the

42 Article 115A of the Constitution of Malta.

43 The United Nations Convention on the Rights of Persons with Disabilities and the Optional Protocol were

ratified by Malta in October 2012 and came into effect in November 2012 following a wide-ranging

consultation process with all stakeholders. The UN CRPD is based on the principles outlined by the social

model of disability, essentially stating that all of society needs to take responsibility for the engagement and

full and unconditional inclusion of people with disabilities in the community. Within this framework the

notion of Universal Design is decisive. This entails addressing attitudinal barriers as well as removing and

possibly eliminating socially constructed structural barriers completely. In addition, it aims to provide the

space that will allow disabled people to be part of mainstream society.

44 European Convention Act, 19 August 1987 (Act XIV of 1987).

45 Employment and Industrial Relations Act, 2 December 2002 (Act XXII of 2002).