Recently, Tonio Borg wrote strongly against a bill which I submitted to the Clerk of the House in connection with an amendment to article 39 of the Constitution of Malta (bill no. 166).

It is fair to say that article 39 provides a constitutional guarantee to the individual who is charged. This is more than what is guaranteed in article 6 of the European Convention on Fundamental Human Rights.

Moreover, it must be remembered that ‘rights’ are not only part of the domain of those who choose to breach the law, rather, society has a duty to protect the victims of illegal and abusive practice. It is an established principle in human rights law and administrative law that, in our increasingly complex societies, administrative authorities acting quasi-judicially (mostly regulatory authorities) need to have the right to impose proportionate and dissuasive sanctions for breaches of the law in order to be effective.

Borg mentioned how article 39 developed after several judgments which led to the guarantee that is the right to “due process” whenever an individual is faced with criminal proceedings. What Borg is not seeing is that times have changed, not to mention that he failed to outline in detail two pivotal details in the judgments handed down by the Constitutional Court.

I am referring to the judgments ‘Director General [Competition] v Federation of Estate Agents’ (2016) and ‘Rosette Thake et noe v Chief Electoral Commissioner’ (2018).

In the first case, the supreme court had basically ruled that when a substantial and severe sum of money is imposed as a penalty, one cannot call it an ‘administrative sum’, though one can still consider it as a ‘fine’ in a criminal sense due to its nature.

Hence, it follows that the same case should be heard by a court, which has all constitutional guarantees. The same court should preside over the case, hear the parties and impose the fine.

The Constitutional Court confirmed the same reasoning in ‘Rosette Thake et noe v Chief Electoral Commissioner’, wherein it said that the Electoral Commission cannot act as ‘ judge and jury’. It cannot investigate alleged facts and then impose a hefty administrative fine.

The opposition should vote in favour of this bill in order to further assert our country as a serious jurisdiction- Edward Zammit Lewis

Additionally, the right to impose administrative sanctions is universally accepted as an essential tool of modern regulatory authorities so long as the necessary safeguards against arbitrariness are in place. These safeguards, which I am referring to, consist of the right to be treated fairly (also known as ‘natural justice’)  and the right to challenge the decisions of regulatory authorities before a court or an independent and impartial tribunal which is established by law.

It is well known that keeping all administrative fines to the level of road traffic tickets will not meet the needs of society and neither will it meet European Union obligations to have effective and dissuasive penalties in place in important sectors. These sectors include banking and financial regulation, anti-money-laundering, fair competition, consumer protection and communications regulation.   

This interpretation of article 39 has had an impact on our entities and authorities. In the field of services, Malta has two important pillars: financial services and remote gaming. These are known to be exposed services of a sensitive nature as there are those who want to abuse the system through money laundering, terrorist financing as well as other illicit activities. Which is when you need to have regulatory authorities that can act as strong regulators, with the possibility to impose strong sanctions on those operators which are classified as abusive.

Failure to move forward on this matter will mean that we will not be able to strengthen the jurisdiction, in consequence we will not be active in the national and global fight against money laundering and other illegal activity, additionally we will fail to be seen as  a serious jurisdiction.

I take the opportunity to recall the Moneyval observations, wherein Moneyval made it clear that our institutions lack effectiveness. This is something that dates back many years and is not linked to Labour administrations. This means that, although we have good and advanced legislation on paper, we are far behind when it comes to enforcement. Unequivocally, this does not mean that we have violated the rights of the individual.

I take the opportunity to continue to note that it was not my intention to change the way the criminal proceedings are conducted; it will be the court that will continue to conduct the proceedings as is presently the case. Though it is relevant to remind our citizens that the current scenario did not exist when the chapter dealing with the ‘fundamental rights and freedoms of the individual’ was originally drafted. The latter shall be subject to the right to appeal before a court or an independent and impartial tribunal established by law which provides the proper legal safeguards. 

The proposal that it should be a court itself to impose administrative fines might be a second best solution of sorts but anyone familiar with the legal system knows that this would render regulatory authorities such as the MFSA and the MGA much less effective.

May I recall that it was this administration that, after at least 15 years of lethargy, took the initiative to carry out constitutional and institutional reforms which were very much needed in our country. All of this has been done in the last 10 months. The same can be said for the Moneyval report. All this could have been addressed by Borg had he chosen to be the protagonist in carrying out these reforms. However, he chose to ignore a colleague in his same party who started proposing the reforms 10 years ago, reforms we have carried out today.

Having said that, I take this opportunity to highlight the fact that today’s opposition, under a new leader, should make use of this window of opportunity to vote in favour of this bill to further assert our country as a serious jurisdiction, for the benefit of all.

Edward Zammit Lewis is Minister of Justice.

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