Olivier v Buttigieg
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1966 |
| Year | 1966 |
| Date | 1966 |
Malta - Constitution - Human rights - Protection of fundamental rights and freedoms of the individual - Newspaper editor - Government employees prohibited from taking newspaper into hospitals and government premises - Whether editor “hindered in … enjoyment of freedom of expression” - “Interference” - Whether minimal - Whether prohibition “reasonably justified in a democratic society” - “Religious profession” - Whether prohibition within rights of control of an employer and occupier of premises - Whether contravention of Constitution -
The
“(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.”
By section 13:
“(1) All persons in Malta shall have full liberty of conscience and enjoy the free exercise of their respective modes of religious worship. (2) No person shall be subject to any disability or be excluded from holding any office by reason of his religious profession.”
Section 14 provides:
“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision — (a) that is reasonably required — (i) in the interests of defence, public safety, public order, public morality or public health; or (ii) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or (b) that imposes restrictions upon public officers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”
Section 42 gives power in general terms to a Minister to exercise direction and control over a department and to a Permanent Secretary to exercise supervision.
The respondent was the editor of the “Voice of Malta,” a weekly newspaper published by the Malta Labour Party, condemned by the Archbishop of Malta in a circular of May 26, 1961, which declared it a mortal sin to print, write, sell, buy, distribute or read it. The Chief Government Medical Officer, the chief adviser to the Government on medical and health matters, issued a circular of April 25, 1962, to all the establishments and services in the Medical and Health Department headed “Political discussions during working hours” and stated that “the entry in the various hospitals and branches of the department of newspapers, which are condemned by the Church authorities, and the wearing of badges of political parties are strictly forbidden,” thereby directly prohibiting 2,660 persons who were the employees of the State of Malta in the Medical and Health Department from taking the “Voice of Malta” into the hospitals and department's premises. Newspapers which were not condemned by the Church authorities could be freely taken by employees into hospitals and departmental buildings.
The “Voice of Malta” was published late on Saturday evenings and put on sale by newsagents and newsboys willing to take part in its distribution. It was also put on sale in labour party clubs. Being a weekly publication it could be bought throughout the week and particularly on Sundays which were public holidays. The respondent was a member of the legislative assembly of Malta and the President of the Malta Labour Party, which was the party in opposition.
The respondent, invoking the enforcement provisions under the Malta (Constitution) Order in Council, alleged against the Minister of Health and the Chief Government Medical Adviser that sections 13 and 14 had been contravened in relation to him. The Court of Appeal held that, considering the size and the population of the country, the circular affected a relatively considerable number of people and a number of institutions and places spread all over Malta, and, affirming the Civil Court, that the circular had contravened the respondent's constitutional rights.
On appeal: —
Held, (1) that the steps taken by an editor of a newspaper to impart ideas and information included the expression of ideas and information in words followed by the printing of such words in the newspaper and by publishing and circulating it, that the strict prohibition imposed by the circular, while not preventing the respondent from so imparting ideas and information, “hindered” him and was an “interference” with his freedom to do so (post, pp. 319H, 320F, 321A–B) and that that hinderance was not minimal (post, p. 321B–C); that the respondent had claimed no right of entry into any premises and his case involved no challenge to the reasonable rights of control of an employer or the reasonable rights of control of an occupier of premises within section 11 (1) (post, p. 323H); and that, while the appellants were entitled to issue reasonable orders to regulate the conduct of government employees during their working hours, the prohibition in the circular was discriminatory, and went far beyond the scope of any such reasonable order (post, p. 324A); and that, accordingly, the prohibition involved a measure of interference with the free handling of the newspaper and its free circulation which contravened section 14 (1) post, p. 324B–C).
Per curiam: In safeguarding fundamental rights and freedoms courts should be cautious before accepting the view that some particular disregard of them is of minimal account (post, p. 321G–H).
(2) That the publication of the “Voice of Malta” did not contravene any law of the state making provision in respect of any of the matters referred to in section 14 (2) (a) and, therefore, the respondent was not protected by that subsection (post. p. 322E–F).
(3) That section 14 (2) (b) afforded protection only where the law imposing restrictions upon public officers did so in specific and not general terms, and that section 42, in empowering in general terms direction and control of and supervision over a department, was not such a “law” as was contemplated by section 14 (2) (b) (post, pp. 322G–323C); but that, even if it would have been shown that the circular was issued under the authority of such a law, the issue of the circular could not be considered “to be reasonably justified in a democratic society” and was, therefore, outside the protection of section 14 (2) (b) (post, p. 323D–E).
Held, further, that there were no words of limitation in section 13, as there were in section 14 (2), and that such interference as there was with the respondent's freedom did not affect his freedom concerning any mode of religious worship or his full liberty of conscience within the meaning of section 13 (1) (post, p. 324D–E, F–H), nor, even if the issue of the circular subjected him to a “disability,” was he so subjected “by reason of his religious profession” within the meaning of section 13 (2), for “religious profession” must be regarded as something apart from and different from his political views and faith (post, p. 325C–E).
APPEAL (No. 9 of 1965) from the judgment of the Court of Appeal of Malta (January 10, 1964) (Mamo C.J., Gouder and Camilleri JJ.) affirming the judgment and order of the First Hall, Civil Court (Xuereb J.) (March 11, 1963), whereby the respondent, Dr. Anton Buttigieg, was granted a declaration that a circular issued on behalf of the appellants, Dr. Paul Borg Olivier, the Minister of Health, and Dr. Carmelo Coleiro, the Chief Government Medical Adviser, had contravened his constitutional rights, and an order that a further circular be published referring to such declaration and be brought to the cognisance of the people to whom the preceding circular had been directed.
The facts appear from the judgment of the Judicial Committee.
1966. February 21, 22, 23 and 24. J. G. Le Quesne Q.C. and Mervyn Heald for the appellants.
W. T. Williams Q.C., Julian Priest and Francis Barlow for the respondent.
The following cases, in addition to those referred to in the judgment, were cited in argument: Kovacs v. CooperF1; Roth v. United StatesF2; Perth General Station Committee v. RossF3; Prescott v. Birmingham Corporation.F4
The judgment of the board was delivered by LORD MORRIS OF BORTH-Y-GEST.
This is an appeal (by leave of the Court of Appeal of Malta dated November 20, 1964) from a judgment of that court (Mamo C.J., Gouder and Camilleri JJ.) (January 10, 1964) dismissing with costs the appellants' appeal against the judgment and order of the First Hall, Civil Court, Malta (Xuereb J.) (March 11, 1963), whereby the respondent was granted a declaration that a circular issued on behalf of the appellants had contravened his constitutional rights. By the judgment and order of March 11, 1963, it was ordered that the declaration be brought, by means of a new circular, to the...
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... ... 385 , P.C. and Thornhill v. Attorney-General of Trinidad and Tobago [ 1981 ] A.C. 61 , P.C. applied ... Olivier v. Buttigieg [ 1967 ] 1 A.C. 115 , P.C. and Government of Malaysia v. Selangor Pilot Association [ 1978 ] A.C. 337 , P.C. distinguished ... ...
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