Would anyone be comfortable with a government-appointed public authority – whose members change with a change in administration – handing down a penalty potentially running into millions of euros?
On 15 March, Malta’s Justice Minister Edward Zammit Lewis was in parliament defending his controversial Bill, which would allow any fines issued by a regulatory authority to be interpreted as a criminal punishment.
In his parliamentary address, Zammit Lewis said that amending the Interpretation Act would allow for the proper functioning of fine-imposing institutions, in turn doing away with the need of these bodies having to go to court over administrative fines. Maltese legal experts from all quarters strongly disagree.
Minister Zammit Lewis was not left alone to defend the proposed Bill. On 13 March, architect, lawyer and government consultant Robert Musumeci published his defence of the government’s proposed Bill, which included the argument that “the ‘arbitrary’ imposition of a fine by a public authority can always be challenged before an independent judicial or quasi-judicial organ”.
Musumeci’s rationale, in an article published by The Times of Malta, was shrouded in dense legal jargon in an apparent attempt to impress. The Shift reached out to legal experts asking them whether any of it made sense.
Former Judge of the European Court of Human Rights, Giovanni Bonello, told The Shift: “The human rights entrenched in the Constitution can only be amended by a two-thirds majority in parliament, while the Interpretation Act can be pulled inside out by a simple majority of one MP.”
“In plainer words, what is proposed is something to this effect – by simple majority to change the Interpretation Act on the following lines: Wherever the term ‘white’ recurs in the Constitution, ‘white’ shall be construed to mean ‘black’. Voilà, abracadabra, the Constitution is corrupted by simple majority.”
Bonello reiterates that “there is a well-established fundamental human right, a right repeatedly reaffirmed by the Constitutional Court. It is the right of every ordinary person, when facing charges which carry heavy financial penalties, to be tried and condemned only by independent and impartial courts presided over by independent and impartial judges and magistrates.”
Bonello adds: “If I understood him well, Dr Musumeci sees nothing wrong in the fact that Bill 198 will henceforth change all this. It will enable political ‘persons of trust’ to impose penalties that can run into millions of euros, and, if unpaid, can perhaps be converted into prison sentences. He sees nothing wrong. Call me bizarre, but I do.”
He stresses that the Constitutional Court has also asserted that it is the fundamental human right of any person charged with a criminal offence to be tried by an independent and impartial court – from the moment he or she is charged. “Dr Musumeci overrules the Constitutional Court – he finds it acceptable that a person is tried and condemned by political persons of trust, so long as the accused, tried and condemned by persons of trust, can then lodge an appeal. This, again, is deriding the Constitution.”
He points out that, so far, the Constitution has only been amended to improve the protection of the human rights of individuals. “Dr Musumeci seems to welcome the first time the Constitution will be amended to shatter two already-existing fundamental rights.”
Similarly, former European Commissioner Tonio Borg noted two main flaws in Musumeci’s contribution which “conveniently and entirely avoids the issue of an ordinary law changing the substantive provisions of the Constitution”.
The second flaw Borg points out is that Musumeci ignores the fact that the Constitutional Court, the highest court of the land, has ruled in 2018 (Thake v. Electoral Commission, 8 October 2018) that the right of access to a court of law in proceedings leading to hefty administrative penalties exists even at first instance.
“That is to say, the fact that there lies an appeal to a court of law from a decision of a public authority imposing hefty administrative penalties is not enough,” Borg added.
Aside from the serious ramifications of trying to surreptitiously amend Malta’s Constitution using a simple majority change of ordinary law, Prof Kevin Aquilina also makes a particularly relevant observation on the nature of administrative fines in an article penned for The Shift.
Aquilina describes how they 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, of course, 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.”
Read Prof Kevin Aquilina’s article explaining what’s at stake with the Bill proposed.