The reference question in human rights proceedings

Abstract

The aim of this dissertation is the emphasis on the enforcement of protective provisions contained within the Constitution of Malta. Specifically, it encompasses the reference procedure enshrined under article 46(3) which allows a court not of a constitutional jurisdiction to refer an issue regarding human rights, arising before it, to the competent court on constitutional matters. Firstly an outline of the elements formulating the reference procedure is given, particularly through the examination of the Nelson Arias case. An in depth analysis is made of the manner in which a reference procedure is to be instituted and the manner in which it is addressed by the Maltese courts. Furthermore an analysis is made of who is able to request a reference during a proceeding, including also the capacity for the Court to ex officio request a reference plea. The inability for a government department to request a reference is furthermore being examined by referring to the applicable Maltese legislation and in light of Maltese jurisprudence on such procedure. From a Maltese legal perspective the reference question has given rise to various conflicting interpretations and complex legal issues. Especially the legal quandary of whether a constitutional reference is requested or a separate application is filed. In this respect, when referring to the reference question in human rights proceedings the two elements which have been cited by Maltese Courts and authors over the years are frivolous and vexatious. These elements together with the consequences arising therefrom are specifically examined. Apart from the Maltese legal perspective, the reference procedure has also been considered from an international perspective, analysing such reference mechanism specifically in countries previously colonised by the British Empire.