Our rights are at stake

The main difficulty with Bill 198 of 2021, a Bill to amend the Interpretation Act, is that it runs counter to the Constitution of Malta, the highest law of the land.

Although the Constitution does provide that the Interpretation Act may be used as an aid to interpretation of the Constitution, the Interpretation Act can never be used to prevail over the Constitution or to run counter to either the letter or spirit or both.

Bill 198 does not content itself with running against the spirit of the law: it also does so in relation to the written wording of the Constitution itself. Of course, one can discuss the niceties of every single provision and sub-provision of the Bill 198 of 2021 but by doing so one misses the wood for the trees.

What is at stake here is a fundamental principle relating to the hierarchy of laws: is it the Constitution that is supreme or is it ordinary law that is supreme?

Another issue at stake is that no ordinary law can be used to subvert the basic, organic, supreme, and fundamental law of the state – its Constitution. To do so would mean that parliament, by a simple majority vote in the House of Representatives (which in reality can amount to two MPs in the House if no quorum is called), can run roughshod over the entrenchment provision, the supremacy provision, and human rights provisions in the Constitution.

In addition, Bill 198 of 2021 breaches the European Convention of Human Rights and the consistent case law of the Strasbourg Court on this subject. It also runs counter to the judgments of the Maltese Constitutional Court.

Essentially, the Constitution provides that only courts may dispense criminal punishments. What Bill 198 of 2021 is proposing is that such punishment need not be administered by a court of justice but by a public authority. In the eyes of the Constitution, not even a tribunal has the power to inflict criminal punishments, even if it is presided by sitting judges and magistrates, let alone a public authority that is the lunga manus of government.

The difficulty lies in the fact that over the years successive public administrations – both Nationalist and Labour – have allowed the institute of administrative offences to develop unregulated. This institute continues to resemble the wild west where licentious behaviour prevailed over the rule of law.

In Malta, it is possible to impose hefty administrative fines that run into thousands of euros. This is no longer the situation of the Commissioners of Justice Act as originally enacted in 1980 that then allowed for a maximum fine of 10 Malta Liri. Today the amounts that can be imposed as fines are exorbitant.

Not only are the fines astronomical but there is no guarantee that the public authority or tribunal inflicting those fines enjoys security of tenure. Sitting judges are independent of the two other organs of the State but public authorities are not, while tribunals, although they might enjoy limited security of tenure, do not enjoy the full security of tenure as the judiciary does. Public authorities are at the beck and call of the administration of the day.

Often, administrative fines are also used as a means to beef up the poor budgetary parliamentary allocation of necessary funds. In this way, the public authority in question has a vested interest to impose hefty administrative fines because in that way it can pay for the salaries, honoraria and other administrative and executive expenses incurred in the day-to-day performance of their duties.

This is, to say the least, a very dangerous stratagem because rather than – as in the case of the courts of justice – public authorities being guided by the pursuit of justice, they end up guided instead by the need to balance their books to the detriment of the proper administration of justice.

The institute of administrative sanctions has developed piecemeal and unregulated. A new law is specifically overdue and required to regulate this institute of the law from a constitutional, human rights, and administrative law perspective.

For instance, in Italy, a whole Code of Administrative Offences exists in the same way that they have a Criminal Code to regulate criminal law. In Malta, administrative offences are spread over all the statute book; there is no uniformity in statutory principles applied, there is no homogeneity in approach, and the whole institute has developed in an unplanned and irrational manner.

The solution, therefore, is not the insertion of one provision in the Interpretation Act or in the Constitution but a reappraisal of the whole institute of administrative offences.

Kevin Aquilina is Professor at the Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta.