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michaelfalzon
Michael Falzon

Ensuring a fair hearing

The proposed amendment to the Constitution opens a door that could lead to a severe dilution of the rights of the common citizen

michaelfalzon
Michael Falzon
24 January 2017, 8:00am
Muscat faces May: for a number of years the Conservative Party refused to support the PN’s policy in favour of EU membership
Muscat faces May: for a number of years the Conservative Party refused to support the PN’s policy in favour of EU membership
I agree completely with the decision taken by the Opposition not to support a proposed amendment of the Constitution that allows for some criminal cases to be handled by tribunals appointed from time to time by the government of the day instead of by the Courts that are the responsibility of the independent judiciary.

This amendment needs the support of two-thirds of MPs and so the Opposition practically blocked the proposal.

Indeed, I think that the proposed amendment to the constitution would give rise to a very dangerous precedent as it could lead to unintended consequences that would, in time, come back to haunt the politicians who would have approved such an amendment.

The problem has arisen after the Constitutional Court deemed the powers of the Consumer and Competition Authority to judge and impose hefty fines to be tantamount to prosecuting and judging a criminal offence, when such an offence should only be dealt with by the Courts. 

In one of my articles some time ago, I had commented that the delay in reforming the law setting up the Competition Authority in line with recommendations by the Constitutional Court has led to a situation where companies and traders that break competition rules are not being fined. I made this comment considering the fact that in the well-known diesel and petrol price case, the Authority had found that both the supplier and the petrol station had breached the Competition Act when the supplier had threatened to withdraw the station’s increased profit margin if the petrol station owner reduced the price. The owner had complied to the supplier’s imposition.

Ever since that Constitutional Court judgement, the Competition Authority kept investigating complaints and decide on cases without, however, imposing fines. In short the Constitutional Court judgement had left the Authority toothless as without the possibility of punishing people breaking the law, the law itself became practically useless. 

This situation should be addressed as quickly as possible. However, as Opposition MP, Clyde Puli commented in an opinion piece published in the Times of Malta last Wednesday, the government opted to propose a change in the Constitution rather than amend the law that was deemed unconstitutional.

Economists and other social scientists have recognised the reality of the so-called law of unintended consequences for many years while politicians have largely tended to ignore it. It seems that this is what the current Cabinet has done. In short, this ‘law’ says that actions of people – and especially of governments – always have effects that are unanticipated or unintended. I believe that this is such a case.

The proposed amendment to the Constitution opens a door that could lead to a severe dilution of the rights of the common citizen. In his article Clyde Puli remarks that ‘So, for example, the government may decide, to expedite matters, that all accused of thefts or hold-ups may be tried before some set-up constituted of lay persons and not magistrates or judges’.

Whether or not this is the undeclared intention of the constitutional amendment is irrelevant. Here it is the law of unintended consequences that comes into play. And the unintended consequences are very serious.

In other times, those opposing such a Constitutional amendment would have probably accused the government of taking the first step towards the setting up of the ‘People’s Courts’ – a threat of the Mintoff administrations in the 70s and 80s, a threat that however never materialised as the Constitution always remained paramount. 

I know that such ideas are far removed from the intentions of the ministers responsible for competition and for justice but it remains dangerous to start slightly opening ajar a door that should be completely shut.

Eternal vigilance is the price of liberty – as the maxim attributed to Thomas Jefferson goes.

More so when the Constitutional Court indicated that the solution to the conundrum lies in the setting up of specialised courts instead of tribunals run by people who do not enjoy any protection of their independence as the judiciary does.

On this one, Joseph Muscat’s government has made an enormous blunder. Pity that people are giving most of their attention on how the performance of the current government is leading to short term financial advantages besides the much flagged corruption and abuses while tending to ignore the long term implications of the constitutional amendment it has proposed.

The right for a fair hearing of those who are in breach of the competition law must not be used to water down the enjoyment of this same right by every Maltese citizen.

Government by tabloids

Addressing a plenary session of the European Parliament Prime Minister Joseph Muscat acknowledged the historical irony of the UK applying to leave the EU during the six months of Malta’s EU presidency.

In his words “It is quite a historic irony for a country that has been a British colony for two centuries, and which currently also presides the Commonwealth, to hold the Presidency of the Council of the European Union at the time of the triggering of the process by means of which the United Kingdom will, unfortunately, cease to be a member of the European Union which it supported us to join.”

It is true that the UK supported Malta’s efforts to become a member of the EU. This was so because at the time the UK was being run by Tony Blair. I am sure that if the Conservatives were in power they would not have been so helpful. This is not a hunch. I know for a fact that for a number of years the Conservative Party refused to support the PN’s policy in favour of EU membership, with the feeble excuse that this was a Foreign/EU relations issue that is dealt with by the government and not the party.

Meanwhile on Tuesday, Theresa May ‘explained’ that Britain is quitting the EU single market in goods and services in order to gain control over immigration – a key issue for many voters who backed Brexit. Britain intends to withdraw from the customs union as well so that it would be free to sign its own trade deals with other countries. 

The UK’s tabloids are thrilled, of course. No surprise here. To me it does seem that the UK now has a government by tabloids 

[email protected]

michaelfalzon
Michael Falzon is a former government minister who served under several Nationalist admini...
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