Issue link: https://maltatoday.uberflip.com/i/451763
maltatoday, SUNDAY, 25 JANUARY 2015 6 News After the hunters… stamp collectors? AN abrogative referendum can only be invoked to remove an existing law which can allow or prohibit any par- ticular activity or action. Therefore to abolish or limit a hobby one needs to find a law which in itself permits people to practise a particular hobby or which allows them to practise it during a particular time of the year. The referendum on spring hunt- ing can only be held because there is a legal notice, which specifically allows hunting in spring. Moreo- ver referenda can also be convened to remove regulations, which limit hobbies or other activities. For example if one wants to re-in- troduce animals in circuses one can actually collect the 35,000 signatures required to call for a referendum to abrogate recent amendments to the Animal Welfare Act banning ani- mals in circuses. But since Malta lacks a proposi- tive referendum instrument through which people can introduce new laws one cannot add new restrictions. For example one cannot extend the prohibition of animals in circuses to zoos. This applies to other restric- tions on fishing, fireworks and horse riding, where laws currently restrict- ing such practices can be abrogated. Moreover since a referendum can only be held to remove a law, no law can be introduced to ban hobbies such as, say, stamp collecting, which are not regulated by any law. Angling Angling is regulated by the Fisher- ies Regulations issued in 1934 and last amended in 1993. Unlike hunt- ing there is currently no law specify- ing the time of the year during which angling can take place. Therefore there is no possibility of collecting signatures for a referendum ban- ning angling in a particular time of the year. The law does list those fishing im- plements and methods, which can be permitted "without any licence at all times and in all localities". This in- cludes all "hook and line" fishing. In the highly unlikely event of 35,000 people signing a petition to remove this part of the law while leaving the rest intact, the only thing which would change is that anglers would need a fishing licence. But one can also use the referen- dum instrument to remove existing restrictions on fishing. For example one may seek to abrogate the article requiring a licence for those methods which are not listed in the exemption for hook and line fishing. One may also seek to remove articles of the law banning specific fishing prac- tices. This would mean that angling and other fishing practices would be completely liberalised. Fireworks Fireworks are regulated by the Explosives Ordinance which states that anyone importing explosives to Malta needs a licence issued by the Commissioner of Police. Such a li- cence cannot be granted unless the necessary precautions for protecting life and property have been taken. Therefore the only referendum which can take place, is one seek- ing to remove this law, thus allowing people to import explosives without a licence. The Control of Fireworks and Other Explosives Regulations also state that a police licence is re- quired to manufacture fireworks. This means that the only referendum possible would be one seeking to al- low the manufacture of fireworks without a licence. There is no law that specifically allows or prohibits the manufacturing and use of fire- works. So there is no law to repeal if one wants to abolish fireworks in Malta. Horse enthusiasts The code of police laws simply states that no one shall be permitted to keep a horse unless they have a li- cence. Therefore, should this article be removed the result would be that anyone would be permitted to keep horses without the need of a licence. Horse racing is regulated under the Racecourse Betting Ordinance. Ac- cording to this law the minister re- sponsible for the police may issue or revoke licences for racecourses. Therefore an abrogative referendum can simply remove the licence re- quirement, leaving this hobby widely unregulated. Off-roading Offroading is regulated by the Mo- tor Vehicles (Offroading) Regula- tions of 2013. The law does not actu- ally permit offroading but limits it to sites "marked as an offroading site" by means of approved signs. A per- mit is also required for any offroad- ing event. Other regulations deal with third party rights in the event of an incident. The law also obliges the organizers of offroading events to be fully insured against damage to property of third parties. Therefore the only referendum possible is one seeking to remove these restrictions. Pigeon racing Pigeon racing is regulated by the Carrier Pigeon Regulations which clearly state that it is not lawful "to establish and to maintain carrier pigeon lofts or to receive carrier pi- geons without a licence from the minister responsible for the police". Curiously an amendment dating back to 1981 also states that "who- soever employs any carrier pigeons in a manner prejudicial to the safety of the State shall be liable on con- viction, to imprisonment for a term from three months to two years". In this case the only referenda which can be held are those remov- ing restrictions on this hobby. What the experts think Kevin Aquilina, Dean, Faculty of Law The spring hunting referendum is specific only to the question of spring hunting and not to other laws. So if the Maltese decide to vote in favour of the abolition of spring hunting, it is only spring hunt- ing, and nothing else, that will be abolished. For other things to be abolished, other abrogative refer- enda have to be called provided that there is a law which regulates that subject matter, and the Ref- erendum Act allows for the ab- rogation of that law. I would not mix different laws because dif- ferent legal considerations apply. One cannot generalise on these matters. Giovanni Bonello, Judge Emeritus Governance in a democracy is based on the will of the major- ity, expressed indirectly through parliament or directly by referen- dum. The actions of this major- ity can be judged (a) from a legal point of view, and (b) from a po- litical point of view. From a legal standpoint, the majority can do everything; so long as it follows the procedures laid down by the Constitution and does not breach the fundamental human rights of individuals. Hobbies are basically of two kinds: those that can affect the community or the common good, and those which are purely pri- vate. I believe that if a hobby is purely private, than it can conceivably form part of the right to a private life and the right to the fulfillment of personality, which can attract some constitutional protection, and it would be unconstitutional to promote a referendum to sup- press the enjoyment of a 'private' hobby. But, if the hobby is either crimi- nal in nature, or can affect adverse- ly the community or community values, then other principles may apply. Some consider paedophilia, kleptomania, graffiti on historical buildings as 'delizzji'. There is no doubt that the law, or, in default, a popular referendum, can prohibit such hobbies. When a hobby, even if not de- fined criminal in its essence, can affect adversely the community or community environmental values, like hunting does, then the community may very legiti- mately have the final say. What is pleasurable to some and harm- ful to many does not attract any constitutional protection in a de- mocracy. This is the purely legal perspec- tive. Political judgement responds to totally different criteria. Can an abrogative referendum be used to abrogate laws permitting other hobbies as claimed by the hunting lobby? JAMES DEBONO takes a look at the laws regulating other hobbies