Parliament is currently debating Bill 198 ,amending the Interpretation Act. On the face of it, the bill appears to be an innocuous piece of draft legislation. In fact, however, it contains provisions that undermine the supremacy of the constitution and make nonsense of the review by our Constitutional Court of government actions.
Prominent constitutional experts, including Giovanni Bonello, a former judge of the European Court of Human Rights, and Anthony Borg Barthet, a former attorney general and former member of the European Court of Justice, have criticised its provisions and have alerted public opinion to the fact that this is an attempt at altering the constitution without following the proper procedure, namely, obtaining the support of a two-thirds majority of all the members of the House of Representatives.
The bill has also been harshly criticised by the Chamber of Advocates, which, in a detailed and erudite position paper, expressed concern at the attempt to stealthily change the supreme law of the land.
The background to this bill is the following: the Constitutional Court, in 2016, ruled that only a court of law presided over by a magistrate or a judge can impose stiff administrative penalties. In 2018, it also ruled that such access to a court should exist from the very first moment that proceedings are instituted. This meant that no public officer or authority could impose such penalties. Only a court of law could do so.
Rather than accepting the judgment of the apex court in Malta, Justice Minister Edward Zammit Lewis decided to go ahead with his plan to abolish this right, recognised by the Constitutional Court, of all people in Malta. He proposed a bill to amend the constitution in this respect and allow bodies that are not a court of law to impose such penalties. His attempt failed, as, thankfully, such an amendment required the support of two-thirds of the members of the legislature; the opposition – which was not consulted at any stage – was firmly against such an amendment.
Having failed in this attempt, the minister is now proposing to pass by a simple majority of one MP an amendment to the Interpretation Act, changing the meaning of what amounts to a criminal sanction. In so doing, he is neutralising the judgments of the highest court of the land.
The very fact that he first unsuccessfully attempted to amend the constitution, and now is stealthily trying to do the same through a simple majority, is ample proof of the deceit and irregularity permeating this obnoxious legislative exercise.
The danger of the bill is not its application to a particular problem, namely the definition of when administrative penalties constitute a criminal sanction, although this is a decision which, according to Maltese and European jurisprudence, should be left exclusively in the hands of the court. The real danger lies in the implication that the government of the day, by simply amending the Interpretation Act, can misinterpret the constitution, amend it by a simple majority and nullify judgments of the highest court.
This, in turn, jeopardises our freedoms and liberties because these would now depend on the whims of whoever is in government.
When the Constitutional Court, in 2016, decided that the director-general of competition could not impose stiff administrative fines, Parliamentary Secretary Deo Debattista had correctly amended the competition law and transferred that power to a court of law. He even stated that, in so doing, the law would be “strengthened”.
Zammit Lewis should take a leaf from his colleague’s book. Rather than meddling with the constitution in an abusive manner, he should make sure it is the courts, and not politicians, that decide what constitutes a criminal sanction.