I am afraid that Justice Minister Zammit Lewis (October 30) missed my point completely. The bill which he is proposing will abolish a fundamental right guaranteed to us all in the constitution.

Up till now, only a court of law presided over by a magistrate in the inferior courts and a judge in the superior courts can decide any criminal proceedings. And this is a fundamental human right. The government is proposing that this exclusive jurisdiction of the courts be dented so that authorities, units and public officers may impose penalties of a criminal nature.

This is not acceptable. Never in the history of our constitution has a government ever proposed to reduce and diminish the rights enshrined in the constitution. Zammit Lewis is seeking to acquire this unenviable and odious position in history.

Now the minister is deceitfully trying to justify this bill on the basis that this is required by EU law. This is pure myth. EU law in several areas of legislation such as competition or money laundering binds members states to impose effective and dissuasive penalties for transgressors. It does not interfere in the matter of whether that should be imposed by a court or a non-judicial authority.

Were this constitutional amendment to be permitted, a tribunal composed of blue-eyed boys of the party in government would be able to impose hefty penalties on individuals and companies. This is today not allowed by the constitution as interpreted by our courts. There is no reason to change this position.

The justice minister should follow the example of his colleague, Deo Debattista, who in competition matters has transferred the power to impose administrative penalties to the courts.

If at all, the minister should appoint judges or magistrates to impose such penalties. The collection of evidence may be entrusted to government  units or authorities subject to judicial scrutiny but the infliction of the penalty and the finding of guilt should remain, as it is today, in the hands of a court of law.

With this constitutional amendment, any person can be dragged before a tribunal appointed by the minister himself and face hefty fines running into hundreds of thousands of euros.

The minister conveniently did not reply to my allegation that, through this amendment, the Equality Board envisaged in the controversial Equality Bills, composed of government-appointed minions rather than a court of law, would have the right to  inflict hefty fines on Church schools and organisations, employers and self-employed. 

The bill which Edward Zammit Lewis is proposing will abolish a fundamental right guaranteed to us all in the constitution- Tonio Borg

The red herring of the Moneyval report has been dangled for the umpteenth time before our eyes. It is as if the minister is saying that a possible negative report by Moneyval – which I sincerely augur will not happen – is not due to the extravagant holiday spree of public officers paid by a business magnate, or the seeds of corruption and maladministration in several government entities, or the freezing, following a magisterial inquiry spurred by the opposition, of the assets of officers in the higher echelons of government, or the stinking scandal of Electrogas where people close to government, to choose an eloquent phrase  adopted by Chief Justice Emeritus Joseph Said Pullicino in the Daphne inquiry, “milked the cow before it had produced any milk”, or the scandalous adventure of the Montenegro wind farm venture where ‘il-ħbieb tal-ħbieb’ pocketed millions of euros at public expense.

No, it is the fault of the constitution which has served us well, at least in this respect, for the past 56 years!

Zammit Lewis, in a desperate attempt to discredit my reasoning, states that, in the past, I failed as minister to introduce the healthy reforms which he has introduced now, with the assistance, one should add, of the opposition.

I respectfully remind him that, under my watch, laws were changed so the Office of the Ombudsman and local councils be enshrined in the constitution, Maltese citizens be allowed dual nationality, every ordinary arrest or search be endorsed by a warrant issued by a member of the judiciary and the victims of crime be allowed to attend criminal proceedings against their transgressor. Thankfully, I never reduced rights, I only augmented them. If that is failure, I proudly admit that I failed.

Adding one to two members of the judiciary to decide the infliction of administrative penalties in several areas of law does not cost much. Judging by today’s salaries, it would amount to a recurrent annual expenditure as basic pay of €58,700 for a judge and €51,800 for a magistrate. Considering that the government has just spent €80,000 to engage the services of Spanish lawyers to contest a case filed by Repubblika before the European Court  of Justice, it is a small price to pay to leave the constitution as it is and still have effective and dissuasive penalties applied against  transgressors.

One last point. The minister first publishes a bill without any consultation with the opposition, even though it requires the support of two thirds majority of all MPs to be approved. Now he expects the opposition to lend him support so that citizens’ rights are diminished! What gall! What cheek!

Tonio Borg is a former European Commissioner.