Article 41 of the Constitution : a guarantee against political arrogation and arrogance

Abstract

In her contribution, Therese Comodini Cachia considers the text of Article 41 of the Constitution and defines the protection guaranteed by it. She then considers the role that Article 41 has played in defending democracy in Malta by analysing selected judgments of the courts of Malta which expose attempts at interfering with this freedom amidst political and social controversy. She goes on to examine the shortcomings of the Article and underlines what today appear as legal anachronisms such as the restriction of freedom of expression by minors, and the issue of limiting freedom of expression of employees in the public sector. The author analyses landmark judgments regarding this right particularly those which dealt with permissible statutory derogations to such right and the cases of 'hostile audiences' and examines the legal requirements for a restriction to such freedom to be permissible.