The right to a fair hearing

Regulators cannot investigate anyone and then proceed to formulate an accusation that is decided upon by the same regulator who then proceeds with a ‘guilty’ decision complete with an ‘adminstrative’ punishment

The right to a fair hearing is the right for a fair and public hearing
The right to a fair hearing is the right for a fair and public hearing

What do the FIAU, the Medical Council and the Electoral Commission have in common? Their power to take measures against persons or entities that breach the law they are supposed to monitor and uphold, do not guarantee the right to a fair hearing and therefore such decisions are deemed unacceptable by the Constitutional Court.

The right to a fair hearing is the right for a fair and public hearing, within a reasonable time, by an independent and impartial court. A fair hearing implies the consideration of statements or arguments from both sides of an issue.

Many Europeans have had to resort to the European Court of Human Rights (ECHR) to make sure that governments develop proper rules and procedures to avoid miscarrrages of justice. And the EHCR has found several European countries to be wanting on this issue.

In fact, the EHCR has exposed thousands of cases of unfair trials, including many which led to the imprisonment of persons who should have been presumed innocent.

In Malta, the FIAU has been challenged in court on this issue on numerous occasions. In some eight cases that have been heard and decided, the FIAU lost the case with its way of doing things being deemed unconstitutional. There are some 20 other such cases pending in the courts. No one expects FIAU to win any of them because the law setting up the FIAU gives it the power to act as an investigator, prosecutor and judge and without giving the ‘guilty’ party the right to appeal.

The same goes for the other two entities although they stopped using their presumed rights to punish someone who breaks the rules, after just one case where this principle of natural justice was confirmed by the courts.

In the words of a recent judgment against the FIAU, ‘administrative penalties imposed by the FIAU are unconstitutional and in breach of the rights of subject persons to be tried by an independent court’

If I recall correctly, the first such judgment was delivered by Mr Justice Lawrence Mintoff on 24 May 2023.

Basically, what this situation means is that regulators cannot investigate anyone and then proceed to formulate an accusation that is decided upon by the same regulator who then proceeds with a ‘guilty’ decision complete with an ‘adminstrative’ punishment. In the case of the FIAU, suh decisions imply fines of a gargantuan amount of euros.

In Malta, this situation has rendered many regulatory bodies impotent.

What is the government doing about this? The courts regularly send such decions to the Minister of Justice, obviously intended as an indirect nudge to the goverment to change the law and create an adminstrative tribunal to hear such cases.

One wonders when the Minister of Justice will introduce the necessary legislation to address this lacuna.

Meanwhile many regulators are paralysed.


Air Malta pilots

Last week the GWU Sunday newspaper it-Torċa published a report on a decision taken by the Industrial Tribunal which ordered Air Malta to pay €80,000 to a pilot who lost his job with the airline.

His complaint was that he should not have been included in the list of pilots who lost their job in June 2020. Moreover some time afterwards, some of these pilots were employed by Med Air. These did not include the complainant who ended up empoloyed with Wizz Air.

This meant that from an annual salary of €112,294 with Air Malta he started to earn €31,600 with Wizz Air!

Incidentally, Med Air has been described as a government ‘phantom’ airline company set up in 2018 and used in an elaborate accounting exercise to give the false impression that Air Malta was making a profit. It is now going to be liquidated together with Air Malta.

Med Air had bought the Heathrow and Gatwick slots from Air Malta. These are valued at some €50 million and will now be transferred to the new airline that is being set up.

Frankly, I could not understand the logic behind the decision of the Industrial Tribunal just from reading this report in it-Torċa, but I was flabbergasted to learn that Air Malta paid its pilots more than three times of what pilots with a low cost airline were being paid!

The story of the demise of Air Malta is still to be written but it seems that among the many that enjoyed dipping their fingers in the honey pot were its Maltese pilots.

Alas, the honey pot was not infinite in size.

A ‘righteous’ vindication?

Writing a piece in a recent issue of The Spectator, Freddy Gray says that Donald Trump is back with a vengeance. He refers to a, 2007 book written by Trump - Think Big And Kick Ass: In Business And Life - in which Donald Trump dedicated a chapter to ‘revenge’. He wrote: ‘My motto is: always get even. When somebody screws you, screw them back in spades.’

According to Gray, Trump considers that next November’s election for US President could be ‘the most delectable payback of all’.

Since his loss in the 2020 election - which Trump and his supporters believe to have been stolen by Biden - and the way he claims that he is being persecuted by the US legal system which he accuses of perpetuating a ‘witch hunt’ against him - Trump believes he is in for a lucky break.

In Trump’s own words, when speaking at the Conservative Political Action Conference: ‘In 2016, I declared I am your voice. Today I add: I am your warrior. I am your justice, and for those who have been wronged and betrayed, I am your retribution.’

Now that Nikki Haley has dropped out of the Republican primaries, the stage is set for a Trump vs Biden rematch. Trump has made ‘retribution’ the recurring theme of his electoral campaign, and since most political observers think he is the favourite to win, a potential majority of Americans seem to view his comeback as he does: a form of righteous vindication.

What many outside the US cannot understand is why the Republicans never came up with a convincing anti-Trump candidate.