Circumventing the Constitution and ordinary law on hunting | Kevin Aquilina

In Birdlife Malta v. Prime Minister et, the Civil Court, First Hall, concluded that once general licences were issued by the Wild Birds Regulation WBRU (WBRU) and that it was within its lawful powers to issue these licences in terms of the Conservation of Wild Birds Regulations there was nothing illegal in such action.

The matter is not as straightforward as there are other aspects totally ignored in the court’s judgment that should have had a determining bearing.

The Environment Protection Act states that the competent minister is the minister responsible for the environment. The Regulations establish the WBRU under the Environment Protection Act. The Regulations define the competent minister as the environment minister, and establish the WBRU within the environment ministry.

On 20 January 2020 Clint Camilleri was appointed Minister for Gozo. On 27 January 2020, he confirmed in Parliament that he was responsible for regulating hunting and trapping. On 29 January 2020, the Gozo Ministry issued a media release to that effect.

The constitutional issue was the WBRU’s allocation by the Prime Minister to the Gozo Ministry. No Government Notice was published in The Malta Government Gazette announcing the ministerial allocation. Nor was the Environment Protection Act and/or the Regulations amended to give effect thereto.

So was the issue decided by the court simply one of Administrative Law? Were there other more fundamental legal issues that the court should have addressed ranging from the rule of law to governmental accountability, and from supremacy of the Constitution to good governance?

When a new administration assumes office and new assignment of ministerial portfolios are allocated, a government circular is issued instructing all government entities to report any changes needed to bring extant laws in line with the new ministerial duties. The Environment Protection Act and the Regulations should have thus been amended to state that the Gozo minister was the Unit’s new competent minister. This did not materialise and triggered serious constitutional and legal violations.

1. An assignment of ministerial duties may be made only by the President. No such assignment was made: it was never stated that the President had approved it. The Department of Information did not publish a Media Release to that effect. If an assignment was approved but not publicised, then the President was in breach of the Constitution.

2. The Constitution states that ‘Nothing in this article shall empower the President to confer on any Minister authority to exercise any power or to discharge any duty that is conferred or imposed by this Constitution or any other law on any person or authority other than that Minister’. The President could not assign ministerial responsibility for the WBRU to the Gozo minister once ordinary law provided for the Unit’s allocation to the environment minister.

3. The Cabinet has ‘the general direction and control of the Government of Malta’. It is up to Cabinet to ensure that no unconstitutional and illegal conduct takes place, at the very least in so far as decisions taken by itself or one member thereof (the PM), are concerned. The Constitution’s disparaging is compounded by Cabinet failing to uphold the rule of law, for once it approved expressly or tacitly the new ministerial assignment, then it violated the Constitution. If the PM only decided the assignment, then Cabinet failed subsequently thereto to rectify the constitutional breach brought about by the PM.

4. The Cabinet is ‘collectively responsible therefor to Parliament’. In the Gozo Ministry’s press release, it is stated that the decision to assign the WBRU to the Gozo Ministry was a government (either a Cabinet or a PM) decision: if it was a collective decision, then the Cabinet is collectively responsible to Parliament for breaching the Constitution. If not, it is the PM who is so responsible.

5. Once the Constitution is supreme, the PM cannot, under the same Constitution, assign ministerial duties contrary to the Constitution’s provisions.

6. Parliament is bound to make laws for the good government of Malta. This requirement applies also to the Executive when making subsidiary laws under parliamentary delegation. An administrative measure such as that of ministerial responsibility allocation is an instrument having the force of law. Hence, as a subsidiary law, the PM has to make ministerial portfolio assignments that respect the principle of good government. To violate the Constitution and ordinary laws is not conducive to the PM upholding good governance.

7. Once the PM’s ministerial portfolio allocation is made through an instrument having the force of law, such instrument cannot run counter to the Constitution so much so that, as a subsidiary law, it is open to challenge under section 116 of the Constitution.

8. If a minister is assigned ‘responsibility for any business of the Government of Malta including the administration of any department of government’ it has to respect any authority given to a minister to exercise any power or to discharge any duty that is conferred or imposed by any law, then whatever breaches such authority cannot be valid at law: what is constitutionally null and void cannot be validated by a subsidiary law. Otherwise, it is the subsidiary law that prevails over the Constitution, not the obverse, and by resorting to such a machination, the Constitution’s supremacy provision would be brought to naught.

9. Whilst direction and control over the WBRU is assigned to the environment minister by and under an Act of Parliament, the PM has robbed that power from the environment minister to assign it to the Gozo minister. Whatever the WBRU does under the supervision of the Gozo minister runs counter to the Constitution. For if the whole notion of constitutional governance is that government is responsible to parliament and acts under the law, how can any WBRU decision, even if taken in terms of a written law (the Regulations), be exempted by the PM from being accountable to Parliament? The Constitution is clear that the Cabinet is ‘collectively responsible therefor to Parliament’.

10. Several laws were breached through the assignment of the WBRU to the Gozo Ministry: the Environment Protection Act; the Regulations; and the Interpretation Act.

But does an unlawful assignment of government business by the PM annul all licences issued by the WBRU, even if it complies with the letter of the Regulations?

The unlawful assignment has ensured that the environment minister cannot be individually responsible to the House for the WBRU once it has been assigned to the Gozo Minister in breach of the doctrine of individual ministerial responsibility; the environment minister cannot exercise his powers of direction and control over the WBRU under the Environment Protection Act, the Regulations, and the Interpretation Act because of the unlawful assignment; the Gozo minister cannot exercise any duties under the Environment Protection Act, the Interpretation Act, and the Regulations as these laws recognize the environment minister as the competent minister; the Gozo minister is not individually responsible to the House for the operation of the said WBRU once the Environment Protection Act, the Interpretation Act, and the Regulations assign him no function whatsoever thereunder.

The WBRU is in a situation of lawlessness: the Gozo Minister enjoys no power over the WBRU and is not answerable in the House for its actions. The environment minister is answerable for the Unit’s operations but it is not allocated to his ministry. Quite a constitutional mess indeed!

The court should have taken a more holistic approach by unravelling government’s behaviour that, through such a Macchivellian machination, managed to circumvent the Constitution and ordinary law and, through such measure, nullify not only the Constitution, two acts of parliament (the Environment Protection Act and the Interpretation Act), and one subsidiary law (the WBRU that is ‘established within the Ministry responsible for the environment’).

From the date when the WBRU was assigned to the Gozo ministry, it ceased to act within the law; instead, it began to act outside the provisions of the Constitution and of ordinary law. Its operation became extra legem, tainted by vice, and, therefore, cannot attract the protection of the law for its operation even if, at face value, it was allegedly purporting to comply with the provisions of the Regulations. No recognition, legitimacy and authority could be ascribed thereto as otherwise a court would be justifying an unlawful administrative measure.

The government would probably argue that the WBRU has the vires to issue licences in terms of the Regulations. But when the WBRU was unlawful assigned to the Gozo ministry, the WBRU ceased to enjoy the protection of the Constitution and of the law, as it became extra-constitution and extra-legal. This administrative measure is not only null in itself but also null in its effects: quod nullum est nullum producit effectum. To argue otherwise, would simply nullify instead the Constitution, the Environment Protection Act, the Interpretation Act, and the Regulations... in other words, the rule of law.

Were the court simply to declare that the PM was in breach of the Constitution and ordinary law and stop there, such declaration would still not have sufficed for what the WBRU does outside the law is not authorised by law and therefore extra legem. Acting outside the law means that it cannot constitutionally and lawfully claim any authority or legitimacy to issue licences and perform any other duties assigned to it by the Regulations.