The Minister for Social Dialogue and Consumer Affairs seems to be willing to take a legal shortcut at the expense of citizen rights after sleeping on consumer issues. Let me explain further.
Late in 2013, the Competition Office alleged that a local organisation had breached the Competition Act. The office started procedures to impose a fine of €1.2 million. These procedures were challenged before the Constitutional Court, and in April 2015, the court declared that specific provisions of the Competition Act were unconstitutional. It argued that the alleged charge by the Competition Office was tantamount to a criminal charge. In such cases, the right of fair hearing, enshrined in our Constitution, should only take place before a court and no other administrative set-up.
This protection has been present for the past 52 years and goes beyond what is provided by the European Convention on Human Rights, which expressly provides that nothing “shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting State”.
Indeed, the Constitutional Court stated that the Maltese Constitution protects Maltese citizens better.
The ruling of 2015 was confirmed in May 2016 following an appeal lodged and lost by the Competition Office.
Let me now briefly refer to some other details which should not be left by the wayside.
Until the end of August 2016, everyone was given the impression that the April 2015 and May 2016 Constitutional Court decisions did not dent the functions of the Competition Office. Indeed, in its 2015 report published last year, the office reported that it concentrated on pending cases and that “41 cases were resolved”.
If a law is declared to be unconstitutional, reason dictates that it is the law which should be amended and not the Constitution
However, when I asked the Minister for Consumer Affairs for more details, the reply that I got was that the information was being gathered.
When, in July 2016, I asked the minister for an update on the Rabat petrol station case, I was informed that the office was close to reaching a decision.
The first worrying signs emerged from a report appearing in the Times of Malta on August 30, 2016, where a spokesman for the Consumer Affairs Minister confirmed that there were some problems but stated that the Competition Office could still perform its functions, though it could not issue fines.
Following another PQ I lodged, it now transpires that on May 9, 2016, six days after the Constitutional Court’s judgement, the European Commission was informed by the Competition Office of the judicial outcome and that parts of the Competition Act were contrary to the Maltese Constitution.
The government’s first contact with the Opposition on the matter took place in September 2016, when it proposed amending article 39 (1) of the Constitution “to curtail the right of any person charged with a criminal offence to have his case decided by a court” .
I was shocked, to say the least. My first reaction was if a law is declared to be unconstitutional, reason dictates that it is the law which should be amended and not the Constitution. Secondly, the repercussions of this amendment extend to all criminal offences.
So, for example, the government may decide, to expedite matters, that all those accused of thefts or hold-ups may be tried before some set-up constituted of lay persons and not magistrates or judges.
It is true that these decisions may be appealed, but is it correct for a person not to have access to a court of law in the first place?
On December 1, 2016, I reques-ted that the minister examine whether there could be suitable alternatives. For some inexplicable reason and a few weeks later, she informed me that my e-mail had never reached her, even though my computer never indicated an unsuccessful e-mail transaction.
However, a few days ago, I was provided with a few paragraphs purporting to be a suitable reasoned opinion. What is striking is that whereas the minister herself indicates that there are other suitable alternatives, the government is championing the constitutional amendment for the simple reason that “an alternative approach is time-consuming”.
Again, I was left astounded.
Did the government, including the Consumer Affairs Minister, read the Constitutional Court’s judgments?
In the April 2015 judgment, the court suggested the setting up of more specialised courts: “What is needed is not an increase in the number of tribunals, but the establishment of special courts… with full protection of the right to a fair hearing.”
The solution has been before the government’s eyes for the last two years. Obviously, it has been sleeping on it and now is looking for shortcuts at the expense of the citizen.
The Opposition cannot and will not support this amendment.
Clyde Puli is Nationalist Party spokesman on social dialogue.