[ANALYSIS] After the hunters… stamp collectors?

An abrogative referendum can only be invoked to remove an existing law which can allow or prohibit any particular 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 hunting can only be held because there is a legal notice, which specifically allows hunting in spring. Moreover referenda can also be convened to remove regulations, which limit hobbies or other activities.

For example if one wants to re-introduce 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 animals in circuses.

But since Malta lacks a propositive 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 restrictions on fishing, fireworks and horse riding, where laws currently restricting 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 Fisheries Regulations issued in 1934 and last amended in 1993.  Unlike hunting there is currently no law specifying the time of the year during which angling can take place. Therefore there is no possibility of collecting signatures for a referendum banning angling in a particular time of the year.

The law does list those fishing implements and methods, which can be permitted “without any licence at all times and in all localities”. This includes 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 referendum 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 practices. 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 licence cannot be granted unless the necessary precautions for protecting life and property have been taken.

Therefore the only referendum that can take place is one seeking 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 required to manufacture fireworks.  This means that the only referendum possible would be one seeking to allow the manufacture of fireworks without a licence. There is no law that specifically allows or prohibits the manufacturing and use of fireworks. 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 licence. 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. According to this law the minister responsible for the police may issue or revoke licences for racecourses. Therefore an abrogative referendum can simply remove the licence requirement, leaving this hobby widely unregulated.

Off-roading

Offroading is regulated by the Motor Vehicles (Offroading) Regulations of 2013. The law does not actually permit offroading but limits it to sites “marked as an offroading site” by means of approved signs. A permit is also required for any offroading 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 pigeons without a licence from the minister responsible for the police”.

Curiously an amendment dating back to 1981 also states that “whosoever employs any carrier pigeons in a manner prejudicial to the safety of the State shall be liable on conviction, to imprisonment for a term from three months to two years”.

In this case the only referenda which can be held are those removing 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 hunting, and nothing else, that will be abolished. For other things to be abolished, other abrogative referenda have to be called provided that there is a law which regulates that subject matter, and the Referendum Act allows for the abrogation of that law. I would not mix different laws because different legal considerations apply. One cannot generalise on these matters.

Giovanni Bonello, Judge Emeritus

Governance in a democracy is based on the will of the majority, expressed indirectly through parliament or directly by referendum. The actions of this majority can be judged (a) from a legal point of view, and (b) from a political 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 private.

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 suppress the enjoyment of a ‘private’ hobby.

But, if the hobby is either criminal in nature, or can affect adversely 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 defined criminal in its essence, can affect adversely the community or community environmental values, like hunting does, then the community may very legitimately have the final say. What is pleasurable to some and harmful to many does not attract any constitutional protection in a democracy.

This is the purely legal perspective. Political judgement responds to totally different criteria.