And now, for some legal somersaults!

While the country is flabbergasted by the way the COVID-19 virus – and its mutations – has suddenly been spreading all over Malta, a very serious political issue has been brewing almost outside the introspection of the public eye.

I am referring to a proposed new paragraph to be added to the Interpretation Act. The stated objective of the proposed amendment is “to regulate the interpretation of the classification of laws or punishments as criminal in nature with particular reference to the situation where an Act confers a power upon a public authority which exercises regulatory, supervisory, compliance, investigatory or enforcement functions to impose a civil penalty, an administrative fine or other civil or administrative pecuniary or non-pecuniary sanction or administrative measure.”

What does this legal gibberish mean and why is the government pushing for this law? The problem arises from a situation where several regulatory bodies have a right to punish people or companies for breaching the relevant laws and regulations being monitored by the body. However such regulators are not an independent court of law in Constitutional terms – more so as the people running these regulatory bodies are at the mercy of the government of the day who can appoint them or remove them at will.

Originally, the government wanted to amend the Constitution and even published a Bill to do so; but the Opposition did not agree with this and the attempt died as such an amendment needed a two-thirds majority in Parliament.

So, hey presto, some bright guy came out with the idea of amending the Interpretation Act so that certain crimes would no longer be interpreted as crimes and thence the regulatory body concerned would not be in breach of the Constitution if they decide on dishing out penalties to whoever, in their opinion, broke the law that they are responsible for upholding.

This has raised the hackles of the Opposition and the Chamber of Lawyers who see this as a way for circumventing the relevant Constitutional provisions. In a press conference last Monday, Opposition spokesmen Karol Aquilina and Therese Comodini Cachia argued that the proposed law is unconstitutional as fines for breaches of law are criminal sanctions that can only be made by the Courts.

The Opposition insists that calling these sanctions by another name, such that there is no need of an established legally recognised Court of Law to impose them, is actually breaking the Constitution. It insisted that the proposed addendum to the Interpretation Act is an attempt to stealthily change the Constitutional provisions that need a two-third majority to be changed.

In a long-winded statement last Wednesday, the Chamber of Advocates expressed serious reservations with regard to the amendments being proposed to the Interpretation Act, highlighting its concerns about the effect of the proposed law on the protection afforded by the Constitution from the imposition of criminal sanctions without due process.

The Chamber pointed out that Article 39 of our Constitution safeguards the due process of law in the prosecution of criminal offences and provides for the secure protection of law, so that any person charged with a criminal offence shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

But, as the Chamber puts it, there has been a growing tendency over the past 10 to 15 years for the enactment of laws, principally of a regulatory nature, that give a public authority, as regulator, the power to investigate breaches of laws, and then to judge persons and impose penalties that are termed in those various laws as administrative penalties.

But, in effect, these so-called administrative penalties are actually sanctions for criminal offences that, constitutionally, can only be imposed by an independent and impartial court after a fair hearing of the case.

The Chamber insisted that the proposed addition to the Interpretation Act attempts to re-categorise what constitutes a criminal sanction and, consequently a criminal offence. It explained that: “The issue really is whether the new definition provides mere clarification or actually gives a new meaning to a term in the Constitution which has hitherto been consistently applied through judgements of our Constitutional Courts in a manner which is not reflected in the new definition.”

Last Tuesday The Times of Malta carried a letter on the subject written by Dr Anthony Borg Barthet, former Attorney General of Malta and former judge of the Court of Justice of the EU. The fact that Dr Borg Barthet felt he had to enter the fray, so to speak, speaks volumes.

He argued that it is not legally possible for the provisions of the Constitution to be legally modified or stultified by an amendment in the Interpretation Act in such a manner that changes the reading and meaning of the Constitution from what it was before the amendment. Obviously this would be a breach of the very Constitution that the Bill tries to interpret!

His letter ended ominously by pointing out that: “The fact, however, that the government previously attempted to achieve the results desired through an amendment of the Constitution itself makes one suspect that what is being attempted is not an interpretation of the constitution but its amendment and, hence, not legally achievable in the manner sought.”

Personally, I think the government should stop and think, get the Opposition on board and find an acceptable legal solution to the problem that it wants to overcome.

Doing it in this ‘clever’ way by adding an article to the Interpretation Act, is doomed to fail as the breach of the Constitution is obvious.

Not political!

A clip taken from a live TV programme on the pandemic broadcast on ‘Living TV’ has gone viral. It has also made me cringe. Not because of the obviously justified complaints of the female caller but because of the introduction she chose to begin with.

She felt she had to point out that what she was going to say was not ‘politics’ (meaning party political propaganda) because she was a ‘laburista’.

So according to this logic, if a Labour supporter criticises the Labour government, it is not a political statement; but if a PN supporter uses the same words to criticise the same Labour government, it is political propaganda.

Sadly, our tribal politics have led people to this illogical way of looking at things... with the difference between ‘political’ and ‘party politics’ being unheard of, practically impossible to exist.

God, have pity on this ‘fair’ land!