Amending the constitution is the best way to introduce a contentious reform that would allow public entities to impose much larger fines, rule of law experts from the Council of Europe have said.  

In an urgent opinion, published on Tuesday, the Venice Commission said that the best route to change the way fines are handed out, is through an amendment to the constitution and not to another existing law. 

Justice Minister Edward Zammit Lewis wrote to the political body in April, asking its opinion on a pending reform, either to Article 39 of the constitution or alternatively to the Interpretation Act. 

The changes seek to allow administrative fines to be imposed by any public officer or authority and in the process redefine the meaning of a ‘criminal offence’.

Currently, such fines can only be imposed by court. The proposed reform comes in the context of increased international scrutiny on Malta's fight against major financial crime. 

Why is the reform controversial?

The planned changes have drawn heavy criticism from legal scholars, politicians and lobby groups.

Critics, including constitutional law scholars, say the amendments would do away with due process and impinge on people’s right to a fair hearing, as people or companies could be fined huge amounts without any form of redress.

The Chamber of Advocates has warned that redefining a criminal office would also impact people’s right to protection of law under the constitution.  

Critics have also accused the government of trying to pass the amendment by stealth as a legal notice, after an initial attempt to amend the constitution to include it collapsed.

The government has defended the amendment by arguing that it seeks to address a legal grey area and give regulatory bodies certainty when dishing out fines while easing pressures on the law courts.

Does the Venice Commission back the proposed reform?

In a lengthy and technical position on the matter, the Venice Commission said it was not assessing whether the reform in question was necessary or even appropriate. 

“This decision falls within the sovereignty of the Maltese authorities and people,” it said.

The question of whether the proposed amendment of the Interpretation Act is compatible with Malta's constitution is for the constitutional courts to decide, it also said. 

“The Commission therefore will only provide its analysis of the two pending options in the light of the European standards and of the European experience. It hopes, in so doing, to contribute constructively to the public discussion in view of the final decision which will be taken by Parliament.”

How does it suggest reform should be achieved?

As regards the question of whether the planned reform should be achieved through a constitutional amendment or through a change in the interpreting rules contained in the Interpretation Act, the Venice Commission said that the “final say” in the interpretation of the constitution in a given case belongs to the constitutional court. 

The constitutional court’s decisions are final and binding and oblige parliament to repeal or amend the provisions found unconstitutional and to follow the interpretation given by the constitutional court. 

Parliament has nonetheless the power to amend the constitution to provide for a different interpretation from that provided by the constitutional court, provided that the procedure for constitutional amendment is duly followed.

The two thirds majority required for constitutional amendments entails that a broad consensus needs to be found between the parliamentary majority and the opposition, giving the latter the power to participate, supervise and even block any amendments, the opinion says. 

The commission said that it follows that  the proposed reform should be achieved through the amendment of Article 39 of the Constitution.

It goes on to say that the road ahead is not straightforward. 

In the Venice Commission’s opinion, the choice which the Maltese authorities are facing is a complex one: affording full fair trial guarantees is certainly a legitimate aim, but so is ensuring effective regulatory action, especially in the area of the fight against corruption and money laundering, it said. 

“There is also the problem that Malta’s present supervisory systems may be under-dimensioned bearing in mind the size of the industries they are supervising, and/or that penalties, even the less serious penalties, might not be being imposed enough," the opinion concludes. 

What has the reaction been?

Speaking with Times of Malta shortly after the opinion was issued, Zammit Lewis said he was satisfied.

The commission, he said, had understood the government’s primary initiative and found that it did not go against any fundamental human rights. 

“This means, that the bill strikes a balance between having effective public authorities and from the other end a clear system of guarantees sufficient to ascertain a  fair hearing to all citizens," he said.

"After the publication of this opinion, I hope that the opposition reacts in a responsible manner by ensuring that bill 166 passes through the House of Representatives with the required majority,” he said.

However, the PN's justice spokesman Joseph Ellis said the Venice Commission had "rejected" the government's contention that it can can change the interpretation of a human rights provision enshrined in the constitution by simple majority. 

"The Venice Commission was requested specifically by Minister Zammit Lewis to give an opinion in the hope that it would endorse the government's attempt to undermine the constitution," he said said.

"The opinion is a spectacular own goal by the government in spite of what Zammit Lewis states." 

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