The Chamber of Advocates on Wednesday called on the government to “completely re-think” amendments to the law which seek to allow any public officer or authority to impose administrative penalties rather than leaving this up to a court of law. 

The amendments are being made to the Interpretation Act.

They will allow the imposition of administrative fines which sometimes run into  hundreds of thousands of euros. 

“We must express our serious reservations about this Bill and its effect on the protection afforded by the Constitution from the imposition of criminal sanctions without due process. The Chamber finds the proposed amendments to be remarkable and calls upon the competent authorities to completely re-think the proposals contained in that Bill, and to show respect to the supreme law of the land – the Constitution,” the chamber said in a position paper on the Bill.  

It said that an analysis of the Bill, which at first glance looks innocuous, reveals that the real effect of this Bill is more far-reaching and can lead to the imposition of what are intrinsically criminal sanctions, without due process.

'Due process is protected by the Constitution'

The chamber said this due process in the prosecution of criminal offences is protected by the constitution so that any person charged with a criminal offence shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.  

It expressed its concerns about changes to the definition of a criminal offence in various laws, including the constitution. “This in our view constitutes an amendment, by stealth, of the constitution itself which can only be amended by a two-thirds majority vote in the House of Representatives,” the chamber said, adding that Parliament did not have the discretion to change the substantive meaning of the constitution but was only allowed to provide clarification to the meaning of terms used in the laws.

“Whichever way one looks at this proposed amendment, the effects of the introduction of this definition are substantive, indeed very much so. The re-characterisation of the term criminal offence will have a direct impact on the citizens’ right to the protection of law afforded by the constitution, and the rights currently enjoyed by any person under that article will be completely removed in certain instances which would otherwise have been enjoyed,” the chamber said. 

It added: “The chamber cannot quite appreciate the policy basis to allow the imposition of potentially excessive penalties by regulatory authorities without due process. There can be little, if any doubt, that the ultimate effect of these amendments is to allow what the Constitutional Court and the European Court of Human Rights have already termed as criminal sanctions to be imposed without due process.  This is a significant erosion of the sanctity of the right to due process and the supremacy of the constitution, which is innately unacceptable.”

The chamber held that trying to take a short cut and denting the supremacy of the constitution and its interpretation by the constitutional court “is certainly not the solution” but “a short-sighted and very dangerous option that places the protection of law in jeopardy.”

The Bill also came under fire by four experts in the field of constitutional law who concurred that the amendments were only put forward after the government had tried, unsuccessfully, to amend the constitution. However, it found opposition from the Nationalist Party, throwing out the possibility of the amendments going through since a two-thirds majority was needed for its approval. 

In its reaction, the government said in a statement that the Bill centred around the circumstances in which a person facing a possible administrative fine by a regulatory authority can be considered as a “person charged with a criminal offence” in terms of the constitution.

“Case-law on this grey area of the law has brought about a situation where regulatory authorities are obliged to either act in a vacuum of uncertainty as to whether a fine which they may impose is going to be considered by the courts as being of a criminal nature or not.

"These amendments do nothing but align the right to a fair hearing under the constitution with the right to a fair hearing as safeguarded in the European convention. We are also strengthening the right to a fair hearing by extending it to proceedings before the tribunal and administrative authorities,” the Justice Ministry said. 

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