I refer to the articles ‘Right to a fair hearing could be diluted – PN’ and ‘Safeguarding consumers’ rights” by Clyde Puli (January 18). The right of the director general to impose administrative sanctions and for the Competition and Consumer Affairs Tribunal to hear appeals from decisions of the Office for Competition were only introduced by the amendments to the Competition Act in 2011 by the previous administration.
Before the introduction of the 2011 amendments, the imposition of a sanction was not an issue within the competence of the Office for Competition since the sanction to be imposed was to be determined by the Court of Magistrates. Prior to the 2011 amendments, an infringement was considered to be an offence and only courts having criminal jurisdiction could impose sanctions. Therefore, the possibility of imposing fines has always existed in the Competition Act but, until the amendments were introduced in May 2011, no fines had ever been imposed.
It was only in 2013, when the Office for Competition used for the first time its right to impose an administrative fine on an association of undertakings, which had allegedly infringed competition rules, that this provision was challenged in the courts.
It is therefore ironic that the Opposition has voiced its concern only recently, claiming that the director general could not impose fines because only a court could do so. In fact, for more than 16 years, since the promulgation of the Competition Act in 1994 till the 2011 amendments, no person has ever been charged with an infringement of the Competition Act before the Court of Magistrates, even though there was a legal setup that provided for the imposition of criminal sanctions for an offence.
The issue over a proposed amendment to article 39 of the Constitution is not about anyone renouncing to any right but it is really about how to implement administrative regulation subject to the control of the courts. Contrary to what is stated in the article, the proposal presented by the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties to the Opposition strengthens the efficacy with which regulatory authorities can operate with the ultimate result of better safeguarding the rights of the Maltese citizens – both consumers and undertakings.
Contrary to what is being alleged by Puli, the government, following the advice of the Attorney General, acted responsibly when it proposed an amendment to article 39 of the Constitution to address the much-desired necessity for all regulatory authorities, and not only the Competition Authority, to be empowered to impose administrative fines. The power of such authorities to impose such sanctions (be they administrative fines or other sanctions such as withdrawal of licences) is essential for those authorities to be able to act effectively. It does not in any way detract from their duty to act fairly.
Those accused of a criminal offence would still have to appear before an independent and impartial set-up
Bringing the Constitution in line with the European Convention on Human Rights is clearly not a second-class alternative and consumer rights are clearly not being diminished.
The issue which was raised by the Constitutional Court did not relate to the composition or procedures of the tribunal but, rather, to its nomenclature. The Constitutional Court had no doubt regarding the true independence and impartiality of the tribunal. This means that consumer rights are still thoroughly respected because both the right to a fair hearing and the right of appeal are still protected.
On the issue of timing, it is unfairly misleading to take a phrase out of its context. Indeed, the ministry emphasised that the alternative amendments to various laws, among others the Competition Act and the Malta Competition and Consumer Affairs Authority Act, would require a substantially long time to implement. This statement also related to the length of time for a final decision to be taken while the amendment to the Constitution ensures that consumer rights are safeguarded and protected in a swifter manner. Other alternatives would simply lengthen the legislative process, negatively impacting the rights of all undertakings and consumers alike.
Puli gives the impression that all those charged with a criminal offence will be tried before some set-up constituted of lay people and not magistrates or judges. Clearly this is a gratuitous statement since the enactment of the constitutional amendment does not mean that all those accused would end up before lay people. All those accused of a criminal offence would still have to appear before an independent and impartial set-up presided by a judge or magistrate, as is the situation today.
It is hardly a daring guess to consider that the adoption of a system whereby all administrative sanctions (or, at least, those which exceed a particular severity threshold) would have to be actually imposed by a court would really hamper the effectiveness of many regulatory authorities thereby rendering ‘effective regulation’ a merely illusory concept.
Having enacted most of the laws in question itself when in government, the Opposition might have been expected to show a better understanding of the issues involved.
In fact, it is a bit rich to hear Puli, a member of the previous Nationalist administration, arguing to ensure that we safeguard the courts when it was the Nationalist administration of 2011 that had removed the sanctioning of the courts in competition laws. He is strongly arguing for going back to how the law stood before 2011. Where was he in 2011?
Above all this, because the government is trying to sort out this mess, which is a result of the 2011 amendments, the Opposition has the gall to pose as the guardian of constitutional rights.
Reuben Sciberras is communications coordinator, Ministry for Social Dialogue, Consumer Affairs and Civil Liberties.