The Constitution and the European Convention on Human Rights - conflicts, similarities and contrasts

Abstract

The juridical relationship in Malta between the Constitution and the European Convention on Human Rights has given rise to interesting issues and problems, cases, and conflicts, but also similarities and contrasts. To what extent does the Convention provide a better protection to the individual, and what happens when there is a conflict between the two, which one does prevail? The conflict appeared on the jurisprudence horizon practically immediately after the incorporation of the Convention in Malta in August 1987. The Constitution had afforded a protective cover over the main Codes of law in Malta from the human rights provisions, an immunity which came to an end in 1991. One such immunity, relating to pre-1962 laws, still applies when it comes to the right to property under Article 37 of the Constitution. The Convention of course does not accept any such immunities or exceptions to its protection. Therefore, which shall prevail: the immunity contained in the Constitution, or the Convention which till this very day is only an ordinary law- though even this latter point has been debated and contested as well as we shall see. [excerpt]