With the legislature coming to an end, it leaves one pending crucial problem in administrative law – the procedure regulating administrative penalties. The European Court of Human Rights has been extremely active in considering such cases and so have been the Maltese courts.
The legal quandary is how to empower administrative organs to sanction non-compliance with a legal provision. This problem is parliament’s own creation with the connivance of the government and the opposition. Though laws have been enacted to empower administrative organs to inflict administrative sanctions, yet, there is no one well-thought out model adopted over time. Hence, the chaotic situation we face.
Lately, the government proposed a constitution amendment bill affording undesired judicial powers to administrative organs, clearly in breach of the separation of powers and rule of law doctrines. Fortunately, it was defeated. Currently, another legislative attempt to bite the cherry raises more constitutional issues than it solves.
The branch of administrative offences in administrative law has developed without any proper study by the government and no concomitant adequate supervision by parliament.
Unless a thorough research of this administrative law institute is conducted to unpack the constitutional difficulties involved, all piecemeal attempts at law patching – as parliament, the government and the opposition have done so far – will only attract court condemnation of the proposed legislative measures and their attendant annulment.
Primarily, administrative organs are not independent and impartial as is the judiciary. Further, administrative organs cannot, in a country administered by the rule of law, usurp judicial functions by imposing administrative penalties that are nothing but disguised criminal fines. The prevailing constitutional principle is that only independent and impartial courts ought to impose fines.
While administrative organs should impose administrative sanctions, their remit should not extend to: custodial punishments and pecuniary fines. The first point, so far, does not raise any issue once no law authorises administrative organs to imprison or detain persons.
Administrative organs are not independent and impartial as is the judiciary- Kevin Aquilina
As to the second point, this is the real crux of the matter with partial and dependant administrative organs inflicting hundreds, thousands and millions of euros. Here, the sky is the limit.
Administrative organs should impose administrative sanctions such as warnings, reprimands, cease and desist orders, naming and shaming and other non-custodial and non-pecuniary measures. But when a pecuniary penalty is to be imposed, it should be judicially sanctioned.
When an administrative organ concludes that an administrative fine is to be imposed, it should refer the relevant file to a sitting (not a retired) magistrate to validate – should s/he so agree – the administrative organ’s recommendation and impose, in camera, on a prima facie basis, a pecuniary fine s/he may determine.
Being prima facie, the duty magistrate (who is available around the clock, thereby expediting proceedings) does not need to hear the person/s afflicted by that fine in the same way that when a magistrate is asked by the police to issue an arrest or search warrant, the person proposed to be arrested or have his/her house searched is not heard.
Should the magistrate decline, the administrative organ should not enjoy a right of appeal. Nonetheless, if the duty magistrate inflicts a fine, an appeal should be allowed by the person concerned before a judge. The fine collection would be suspended but, with the appeal, a bank guarantee amounting to 10 per cent of the fine should be deposited in the court registry to be disposed of according to the judge’s decision.
The judge will hear all parties involved and dispense justice according to the tenants of due process of law. If confirmed, in full or in part, the fine should be collected as a civil debt. A final appeal limited to a point of law should pertain to parties to the Court of Appeal.
Kevin Aquilina, Professor of law