Rather than changing the Constitution to restore full powers to the competition watchdog, the government has decided to change the law in view of objections by the Opposition.
This was confirmed yesterday by a spokesman for the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties.
The issue revolves around a landmark Constitutional Court judgment delivered in May last year which declared certain provisions of the Competition Act as unconstitutional. It was deciding on case instituted by the Federation of Estate Agents, which had challenged a €1.2 million fine imposed by the Malta Competition and Consumer Affairs Authority.
The ruling, which rendered the Competition Office toothless as it was no longer in a position to impose fines in case of a breach, led the government to recommend changes to article 39 of the Constitution but the Opposition objected.
The Nationalist Party, through its spokesman Clyde Puli, argued that the constitutional changes as proposed could dilute the right of a fair hearing, saying they could open the door for criminal cases being handled by tribunals instead of proper courts.
Dean of the Faculty of Law at the University, Kevin Aquilina, agreed, warning such an amendment would not solve the matter after all.
After all these months, it now finds itself completely unprepared and has to go back to the drawing board, losing more precious time
“Unfortunately, rather than trying to address the issue properly, the government seemed more intent to find a quick fix through a constitutional amendment. After all these months, it now finds itself completely unprepared and has to go back to the drawing board, losing more precious time,” Mr Puli said. At the time he had not yet been aware of the government’s option to move changes to the Competition Act.
In a Talking Point appearing today (see back page), the ministry spokesman said the decision to change the Constitution was based on the Attorney General’s advice. He argued such an option would have been a “swifter manner” to safeguard consumer rights as it would have empowered all tribunals and not just the competition authority to impose administrative fines.
The spokesman argues that, in line with what the government had proposed, all individuals accused of a criminal offence would still have to appear before an independent and impartial set-up presided by a judge or magistrate, as was the situation today.
He pointed out that it was quite ironic that the Opposition was taking such attitude over an issue that was the result of a law enacted by the Nationalist Party itself in 2011.
Changes were ‘a step too far’
The constitutional amendment proposed by the government would not solved have the matter, Kevin Aquilina, dean of the Faculty of Law, insisted.
There were instances in Maltese law where the administrative penalty was inflicted not by a ‘tribunal’ but by an organ of the public administration, be it a public officer or a public corporation. In such cases the doctrine of separation of powers would be subverted as judicial functions would end up being performed by the public administration, he said.
The fact that a right of appeal or judicial review would be allowed did not solve the matter because there was no form of capping on the administrative penalty which the public administration could impose nor was there any requirement that the public administration, in determining administrative offences, had to comply with the rights an accused person enjoyed under criminal procedure.
Moreover, Prof. Aquilina noted, such an amendment was worrying as it opened the door to have all the criminal offences not punished by imprisonment to be de-penalised, thereby excluding the jurisdiction of the Court of Magistrates from deciding such cases.
“I think it is going a step too far as are the exorbitant fines which administrative authorities can impose that the European Court of Human Rights considers to be more in the nature of a criminal offence than an administrative offence,” he said.
Prof. Aquilina would prefer having a specialised court, presided over by a magistrate, to deal with such criminal offences on the same lines that the Administrative Review Tribunal had done since 2007, taking over the functions previously exercised by ad hoc tribunals dealing with judicial review of decisions made by certain entities within the public administration.
“In this way, the proliferation of public corporations with powers of administrative sanctioning is curtailed, more uniformity introduced in the whole decision-making process, the rules are standardised throughout the public administration, justice is meted out by a magistrate who is impartial and who enjoys no conflict of interest, administrative costs could be cut and all this should ensure respect for the principles of a right to a fair trial in the criminal justice system,” Prof. Aquilina said.