Respecting our Constitution and the right to a fair hearing | Karol Aquilina

The supremacy of our Constitution is the keystone upon which the entire Constitutional structure rests. Our courts are empowered to strike down laws which are found to be inconsistent with the Constitution and in particular those laws which breach the fundamental rights and freedoms of the individual set forth in our Constitution.

The European Court of Human Rights and the Constitutional Court of Malta have in a number of cases ruled that the infliction of an administrative penalty in a case where it retained its criminal character could only be imposed by an independent and impartial court. Our courts have also made it amply clear that at all stages of proceedings considered to be criminal, applicants had a right of access to a court, namely one presided over by a magistrate or a judge.

Changes to a number of laws became necessary following two landmark constitutional judgments, Federation of Estate Agents vs Director General Competition et delivered on May 3, 2016 and Rosette Thake noe et vs Electoral Commission et delivered on October 8, 2018.

For a number of months Government chose to completely ignore the Constitutional Court’s judgements. They were both left to gather dust on the table of the House. It was only in 2019 that government moved a bill to amend the Competition Act and the Consumer Affairs Act to bring them in line with the Constitution of Malta in the light of the two judgements of the Constitutional Court. The power to hear and decide on infringements of the Competition Act was rightly vested in the Civil Court (Commercial Section) and the Court of Magistrates whilst the Office for Competition and the Director General (Consumer Affairs) retained their investigative and prosecutorial roles. Parliamentary Secretary Deo Debattista and former Justice Minister Owen Bonnici had applauded the amendments which effectively banned the imposition of stiff fines by the Office for Competition.

It was the right thing to do and government had consciously set a positive precedent on how to bring a number of other laws in line with the Constitution.

Unfortunately, what followed was a complete disappointment. Instead of following the good practice it had just set, Government decided to go in the extreme opposite direction.

In October 2020 Minister Edward Zammit Lewis proposed a bill to amend the Constitution which would have dealt a most severe blow to the right to a fair hearing. It was immediately shot down by the Opposition and since a two-thirds majority of MPs was needed for its approval, the minister was left with no other option but to bring the parliamentary process to a screeching halt.

Many thought the minister had snapped back into his good legal senses. It was not the case.

Just a couple of weeks ago, Zammit Lewis tabled a seemingly innocuous new Bill to amend the Interpretation Act – an ordinary law first enacted in 1975 to provide for the interpretation of the language used in legal instruments. The proposed Bill is a clear attempt at statutorily overriding and circumventing the Constitution and the Constitutional Court’s judgements on the matter.

In essence, it attempts to amend the Constitution in the same way the previous Bill sought to do while avoiding the added hurdle of a two-thirds majority in the House. Unlike the most important provisions of the Constitution, the Interpretation Act can be amended by a simple majority of MPs.

Unsurprisingly the Bill has been publicly slated by Malta’s leading constitutional experts: Giovanni Bonello, Kevin Aquilina, Tonio Borg, Austin Bencini and Anthony Borg Barthet. All of them have made it very clear that the bill is wrong and also predicted that it will be legally overturned by the Constitutional Court. The Chamber of Advocates labelled the bill as “a short-sighted and very dangerous option that places the protection of law in jeopardy”.

The Opposition has also publicly declared that it will be forcefully opposing the bill at every stage of the parliamentary process.

The solution to the government’s conundrum is actually quite simple: retain the investigative and prosecutorial roles of public authorities and empower our courts with the exclusive right to impose stiff penalties after a fair hearing of the case.

It’s not rocket science. It is rather a basic understanding of our Constitution and a genuine willingness to protect, cherish, and defend its basic tenets.