Sports and hobbies themselves CANNOT be subjected to an abrogative referendum
Left to right: Reuben Balzan, Mark Bencini, Giovanni Bonello and Andrew Borg Cardona at their press conference yesterday afternoon
The SHout campaign took action yesterday to throw out of the window claims by the hunters’ lobby that all those who play sports or have a hobby should vote Yes to spring hunting, otherwise they might be next.
You know, sort of along the lines of first they came for the Jews and you did nothing, then they eventually they came for you.
Social media are awash with scaremongering memes and high-alert warnings, most of them misspelled, about how sports and hobbies are a chain and if the spring hunting link is broken then the rest will go down.
You can’t ignore that level of ignorance of the law and lack of commonsense. You have to deal with it. And yesterday’s press conference really helped.
The press conference was addressed by Reuben Balzan (who is president of the Chamber of Advocates), by Giovanni Bonello (who was a judge at the European Court of Human Rights for many years and who recently served as head of the government’s Justice Commission), and lawyers Andrew Borg Cardona and Mark Bencini. The legal opinion they presented was also signed by Kevin Aquilina (Dean of the Faculty of Laws at the University of Malta) and lawyers Max Ganado, Edward Debono, Richard Camilleri, Philip Manduca, David Meli, Stephen Muscat and Graziella Bezzina. You can read it here:
Legal research document regarding abrogative referenda and hobbies
There are two kinds of referendums in Malta: the sort that can be brought by public petition (like this one), and the sort that are proposed by the government (like those on EU membership and divorce).
They are not interchangeable, they are treated separately at law, and the parameters are different. Those brought by public petition are ABROGATIVE referendums. This means they can be used only to REPEAL (REMOVE) laws and not to propose new legislation (like divorce) or a new situation (like EU membership).
Therefore the public cannot bring a petition to force a referendum on, say, banning hobby-fishing, or stamp collecting, or drag-car racing or football or fireworks manufacture, because there are no laws which allow those things. There are only laws which – in some case likes fireworks – control them. So the only thing the public can do here is force a referendum which removes the legislation that controls, say, fireworks, which would not lead to a ban but to its opposite – no control and a free-for-all, which presumably the fireworks enthusiasts would actually love.
The situation with spring hunting is completely different. I’ll quote from the report published by the group of law experts yesterday.
There is clear distinction between regulatory legislation and what can be termed permissive regulation, such as spring hunting. Here lies the key legal issue that is the subject of the hunting lobby’s fear-mongering campaign.
Pastimes and hobbies could be subject to regulatory legislation. Indeed, hunting in general is subject to regulatory legislation (Hunting Licences regulations, S. L. 10.39; Conservation of Wild Birds Regulation, S. L.504.71 and other laws). However, spring hunting is exceptionally permitted by the legislation entitled: Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtle Dove and Quail Regulations (S. L. 504.94 and other laws).
The law permitting spring hunting creates an exception to the general law that does not permit hunting in the mating and rearing season. Therefore, whilst an abrogative referendum would not have utility or scope in relation to other regulated hobbies, the law permitting spring hunting would be removed should the abrogative referendum go through.
Should the referendum go through (meaning that more people vote No rather than Yes), the result would be that the above law permitting hunting (in the spring) would be removed and that hunting itself would remain permitted in Malta, as subject by the regulatory legislation in force at this point in time.
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Finally. Some people with bocci.
Daphne, this is most excellent, but will still be double-Dutch for the people it needs to reach.
It needs to be broken down into easy picture-aided explanation.
Yes, these are brave gentlemen, and I highly respect their views.
I am going to vote No but cannot say this in public because my extended family is mixed and I do not want to offend or hurt feelings. Still I will vote No to spring hunting.
[Daphne – Mixed? If that means some are voting No and some are voting Yes, how on earth do you know this unless they’ve told you? So tell them what you’re doing too.]
This is all in vain. The hunters will win. Yes we may put up a good fight but that’s all about it.
Sorry for my pessimism this morning but my heart aches when I see the commitment these fine lawyers are showing for this cause…a lost cause.
What was yesterday signed by the 12 jurists (including myself) is the irrefutable legal argument, which I fully endorse.
In my view, there is also a more overarching constitutional argument against the scaremongering of the bird exterminators – “all hobbies are now in danger”.
No, they are not.
There are some superior values that are expressly protected by the Constitution or by law. Among these are the landscape, the environment, the guardianship of nature, the survival of biodiversity.
There are ‘hobbies’ or ‘traditions’ which go against these protected values, there are hobbies that are neutral, and there are hobbies that actually promote these values.
It is perfectly permissible to abolish or regulate, by law or by referendum, hobbies or traditions that go against the higher values secured by the Constitution or by law. Spring hunting is about the only popular hobby or tradition that violates these protected higher values.
It is perfectly permissible to hold a referendum that would abolish an activity harmful to values endorsed by the Constitution and by law, such as spring hunting.
But it is wholly unconstitutional and illegal to try to hold a referendum to abolish an activity that does not go against any superior value protected by the Constitution or by law.
I assume full responsibility for this assurance.
Could we go a step further and say that spring hunting is unconstitutional as it violates those higher values enshrined in the Constitution?
And the environment commissioner does not want to say how he will vote… spineless!
http://www.timesofmalta.com/articles/view/20150129/local/environment-commissioner-karmenu-vella-refuses-to-declare-vote-on-spring-hunting.553889
So can I be guaranteed that my hobby of collecting folded stamps every second Tuesday of the month while eating vanilla ice-cream will be protected?
And what if I choose to eat chocolate ice-cream instead, am I still protected after this referendum?
Can these lawyers guarantee this in writing? Actually, let’s get it engraved in stone and stuck on the front door of Auberge de Castille just to be sure.
I am very concerned about my hobby because once there is a precedent with this referendum (to save the lives of free roaming birds.. in bla bla spring… whilst they are bla bla breeding… living their lives…. bla bla…) my hobby needs safeguarding too.
I am thinking of voting for the hunters to keep shooting those pesky birds and killing them, just as I voted for Taghna Lkoll – just to give them a chance, msieken.
Come on, SHout – out with a poster of a chain showing ‘spring hunting’ on one loop disengaged from the rest of the chain on both sides.
The problem is (and remains), the picture of a chain with hobbies on it, versus reading and understanding what four highly educated judges are saying.
What do you think will stick?
I am all out for the ‘No’, but adding rabbit in the hunting days is also somewhat unfair to them. No one go rabbit hunting nowadays. So do not give them reasons to scaremonger.
[Daphne – Lots of men go rabbit-hunting. I can confirm this, living as I do right in the thick of it.]
Wrong! They do.
Visit Gozo any summer night and you will invariably see torches, headlights and hear shooting in the darkness of the countryside.
Most of them are hunting rabbits.
It is admirable to note that a number of highly reputable lawyers had to clarify that the argument being bandied around by the hunters’ lobby is ‘totally without any legal basis’.
That the hunter’s lobby has to resort to such blatant lies in its arguments exposes the mentality of the pack.
This is not the creation of an individual rogue hunter as they would have us believe when illegal hunting takes place but mindset of the whole horde.
This is great but needs to be translated for the masses. Preferably by pictures.
So, in a sense, the possibility of calling for an abrogative referendum protects rather than threatens hobbies.
If, for example, a government were to pass a law prohibiting stamp collecting and enough citizens feel strongly about it (I don’t collect stamps, but I would feel strongly against a law prohibiting others from doing it), one remedy they would have would be to call a referendum repealing the law.