Updated 5.40pm - A constitutional amendment which would have enabled the government to forge ahead with a plan to hand public entities the power to impose much larger fines than they can right now was defeated in parliament on Wednesday.
Justice Minister Edward Zammit moved Bill 166 which sought to rework Article 39 of the Constitution. The article provides that whenever any person is charged with a criminal offence he shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
The Bill needed a two-thirds majority to be approved but the opposition declared at the outset that it would vote against, insisting that as the constitution laid down, it should only be independent courts and tribunals which handed out penalties of this nature, not government-appointed authorities.
There were 34 in favour and 25 against. 45 votes were needed for the Bill to be approved.
The changes sought to allow higher 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 a court.
Decisions can be appealed in court
Earlier, when moving the Bill, Zammit Lewis said the current law, written in 1964, was anachronistic.
“Our authorities are toothless in the fight against organised and financial crime,” he said.
Critics, including constitutional law scholars, say the Bill will do away with due process and impinge on people’s right to a fair hearing in an independent court.
With an obvious eye on that criticism, Zammit Lewis in his address announced an amendment to the Bill, providing that decisions by authorities to impose fines or other administrative penalties will be subject to appeal on points of law and fact before a court or impartial tribunal. Ultimately, he said, the courts would have discretion over the decisions.
He also stressed that what Malta was introducing was already found in other EU countries, giving examples in France and Germany.
He also pointed out that in 2012, the Nationalist government issued a legal notice allowing the Planning Authority to impose a fine of up to €50,000 on anyone causing environmental harm in areas outside the development zones. There were no objections at the time, and he too agreed with that legal notice.
FATF link
Sources say the proposed reform is one of the commitments the government has made to international assessors after Malta was placed on the Financial Action Task Force’s grey list of untrustworthy financial jurisdictions last month.
Zammit Lewis indicated that was the case when he presented the bill on Wednesday.
"We didn’t pass the FATF, and one of the reasons was that they wanted us to exhibit effectiveness of action - that means to be a dog that not only barks, but bites where needed,” he said.
Opposition position against constitutional change
Shadow minister for justice Joe Ellis, replying to Zammit Lewis, denied that the relevant articles of the constitution were anachronistic. The concept that penalties should be imposed by an independent and impartial court or tribunal was as relevant today as it was 60 years ago, if not more.
And in mentioning the 2012 legal notice, the minister could not ignore the fact that the constitutional court had twice ruled that penalties could only be imposed by an independent court, according to article 39 of the constitution.
Ellis said the amendment introduced by the minister on appeals before a court, was cosmetic and did not go far enough. Once matters would end up in court, would it not be better for the imposition of the penalties to be decided by an independent court or tribunal in the first place?
The opposition did not want to weaken the fight against abusive practices, he said, but there were other ways of doing so while respecting the constitution. An example could be seen in the amendments introduced by the present government to the Competition law and the land registration law, which the Venice Commission had approved of.
Ellis said the opposition, therefore, could not back the Bill as moved by the minister. He said there should be real dialogue with the opposition. Sending the amendment by WhatsApp was simply not enough, he said.
Winding up, the minister said an opportunity was being lost for the authorities to be empowered to impose proportionate, effective and dissuasive penalties.
He hoped now that no one would complain about the entities not working.
Amendment needed two-thirds majority
The bill was then debated in all stages and defeated int he final vote on third reading.
The Opposition had previously declared its position against the government’s plans and urged it “to stop acting irresponsibly” and start respecting the constitution.
The matter was cast in the headlines this past week after the Council of Europe’s rule-of-law experts handed the government an academic opinion on the proposed changes.
The Venice Commission was requested by the government to weigh in on whether it should seek to change the constitution or another existing law known as the Interpretation Act, a route the government was in favour of taking.
The commission concluded that the constitutional reform route was the best approach, although it did not weigh in on the merits of the proposal.
The planned changes have drawn heavy criticism from legal scholars, politicians and lobby groups.
Critics, including constitutional law scholars, say the proposed 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 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.
Labour says PN failed test
In a reaction to the vote, the Labour Party said the PN had failed the first real test of joining the government to carry out the recommendations of the FATF.
In voting against the constitutional amendment, the PN MPs had voted against a measure to strengthen the regulatory authorities.
Parliament adjourned to October 4
Parliament later rose for the summer recess and sits again on October 4.