A step in the right direction

Laws must be made known to achieve their purpose, through acquiescence, obedience and enforcement. Publication of the law is therefore obviously not optional. It is only if there is the possibility of their being known that laws can operate under the assumption that everybody should know their contents and that, therefore, we can apply the principle that ignorance of the law is no excuse for non-compliance.

Traditionally, this need has been satisfied by having new laws duly passed by the legislative organ or by other organs delegated to issue statutes and regulations, published in the official gazette of the state. In some countries, such as France, the publication requirement has been expressly laid down by a special law. In most other countries, as in Malta, publication has been the practice for a very long time and it supplanted the earlier "publication" by the town crier (or bandolier) who read publicly the bando during mediæval and early modern times.

Article 72 (4) of the Constitution states: "When a law has been assented to by the President it shall without delay be published in the Gazette and shall not come into operation until it has been so published but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect". After publication in the Gazette, laws and regulations are printed separately and can be made freely available for sale.

We can be proud of the fact that, in 2003, on the initiative of one of my predecessors, our government went further and:

a) put all our existent legislation online, accessible and open for downloading without any charge;

b) organised a service (now provided by the recently set-up Justice Unit) whereby the text of the laws is continuously being updated and subsequent amendments "consolidated" within the text. This has really made the laws of Malta easily accessible in their correct text. It has to be said that this is not only a matter of strict justice; it is also a matter of practice and convenience. Many (and especially judges, magistrates, lawyers and police officers) need an updated legal text readily available but so do many operators in other fields of public life, such as businessmen and public servants.

The relevant reference and, therefore, the legal basis to this electronic publication was made by adding article 16 to the Interpretation Act (Chapter 249), which establishes that "where any Act or document is required to be published in the Gazette, it shall be sufficient that such Act or document is published in electronic format on CD Rom or is made available at a publicly accessible website on the internet and notice of such publication in electronic format on CD Rom or the availability of the document on the website is published in the Gazette: Provided that where an Act or document is so published in electronic format on CD Rom or is so made available on a publicly accessible website on the internet, a hard copy thereof is made available for public inspection during normal office hours at a government department or office and notice of such availability is also published in the Gazette".

However, we still have some lacunæ. There are numerous conventions, treaties and accords that Malta has signed and ratified and which have the force of law in Malta but have not been made readily available to the public. The Treaty Series, which began to be published after Independence, containing the text of each such international agreement, was discontinued during the 1970s.

In 1998, the Ministry of Foreign Affairs published a list of conventions to which Malta is a party including the contents of each such convention in brief, our country's commitments and the date of signature and ratification. This list needs to be updated. Some, but not all of the conventions, treaties and accords have been attached as schedules to Acts of Parliament, some with a Maltese translation, some without.

The present position with regard to these "international" additions to our laws can be improved from the point of view of proper "publication". Some of these documents are not online as they are not annexed to any Act of Parliament. In the case of others, especially international conventions, which usually are accessible on the internet, a search has to be made so as to discover whether Malta is or is not a party thereto. In the case of bilateral treaties, including those dealing with extradition, both those inherited from the United Kingdom by succession and those concluded between Malta and another country, the average Maltese citizen faces an uphill struggle to find out precise information thereon.

In some countries, such as Spain, these international treaties have binding force only after being published in the Government Gazette.

In our Interpretation Act, article 3 sub article 4 (a) states: "Any reference in any law to 'international law' shall be construed as a reference to international law interpreted where required in accordance with such international instruments, if any, to which Malta may from time to time be a party. (b) Any reference in any law to Malta's international obligations shall be construed as a reference to the obligations of Malta assumed under international law". It expressly refers to these international instruments as a source of our international law. Unfortunately, there is no provision for the way these instruments are to be made known to the public.

Another deficiency, which we share with all member states of the European Union, concerns the lack of proper updating by "consolidation" of the EU's legislative instruments. While in the case of our statutes, the Justice Unit includes the amendments made by new legislation into the extant text in such a way that, online, the text shown is the one actually in force, the EU publishes online every new amendment and correction and it is up to the user to construct the present position by going through all previous texts put online, a task that is not always easy, even for lawyers.

Thus, through Bill 26 entitled An Act To Amend The Interpretation Act, which has recently been debated in Parliament, this ministry has proposed two new articles to the Interpretation Act addressing these problems. Through the Justice Unit, we will seek to remedy the situation in a twofold manner:

(i) with regard to international instruments to which Malta is a party, by putting the text online, as at present in force and, where needed, by providing a translation;

(ii) with regard to EU regulations and directives, which have a direct application in our laws, by making them available in a consolidated version.

These are two further steps in the right direction, intended to make available to all citizens all laws applicable in our islands in an easy and accessible format, which does not exist in any other EU member state.

Dr Mifsud Bonnici is Minister of Justice and Home Affairs.