Administrative offences in Malta have been left to develop in an unplanned fashion. They start with the Commissioners for Justice Act 1980 where the amount of the pecuniary fine to be inflicted was 10 Maltese liri.

In the 1980s, I worked at the registry of the Courts of Justice and recollect that, in conversation with Attorney General Carmel Testa, he was correctly reluctant to propose to the government an increase in the amount of this fine or to extend the regime of administrative sanctions mainly because criminal procedural fair hearing safeguards would be imperiled.

However, as time went by, Parliament went in the opposite direction such that there has been a proliferation on the Maltese statute book of administrative offences of all types and sorts short of custodial punishment. I had published a two-piece study of administrative offences in the Chamber of Advocates’ journal, Law and Practice, where I reviewed this new evolving institute of administrative law.

My main concern was and continues to be that the principal stumbling block is the human rights impact upon administrative offences in the Maltese legal system.

One of the difficulties of administrative offences is that they have been left to grow without proper rationalisation. This is because there is no uniformity and consistency in the treatment of administrative offences. This is not the situation, for instance, in Italy, which has enacted elaborate legislation on administrative offences coupled with a well-developed judicial doctrine and concomitant erudite case law which clarify the juridical nature of administrative offences.

The die for administrative offences has been cast

There are several inconsistencies in the Maltese statute book in their relation. For instance, it is not clear whether and to what extent the main procedural safeguards of criminal procedure which enshrine fair trial human rights principles apply in the case of administrative offences.

I have here in mind the principle of the presumption of innocence, the principle against non-retroactivity of criminal offences, the principle against double jeopardy (ne bis in idem), the principle of legality (there can be no crime and no punishment unless it is established by law ( nullum crimen sine lege; nulla poena sine lege), the burden of proof (that is, that the adjudicating authority has to apply the principle of burden of proof beyond reasonable doubt rather than that on a balance of probabilities), the right to silence, the principle of the cessation of the criminal action on the demise of the accused, the principle of compulsory attendance of the accused during judicial proceedings, etc.

There are, of course, several other criminal procedure principles inspired by human rights law which naturally apply in the prosecution of a criminal offence but which do not necessarily apply or appear not to apply within an administrative law context.

There are other considerations which have to be borne in mind, foremost among which is that the adjudicating authority should be independent and impartial. While this test is satisfied in the case of a Maltese court and possibly a quasi-judicial tribunal (though this might not always be necessarily the case depending on the statute establishing that quasi-judicial tribunal), the matter is totally different where the administrative offence is adjudged not by a court or, perhaps, a quasi-judicial tribunal, but by an organ of the public administration where the members thereof might be acting both as prosecutors and judges of fact and of law, apart from inflicting an administrative sanction, and where they do not necessarily follow mandatory procedural fair trial safeguards.

Indeed, there is the tendency for the public administration to appoint non-lawyers to chair such public corporations who are therefore unqualified to respect these fair trial procedural standards once they are not well versed in the law.

One retrograde instance which comes to mind adopted by the Nationalist Party in government in 2010 and blindly followed by the Labour Party in government in 2016 is when the quasi-judicial tribunal which succeeded in time the Planning Appeals Board (the latter was chaired by an advocate) – the Environment and Planning Review Tribunal – ended up chaired by a person with no legal knowledge and who, consequently, could not mete out justice in conformity with the procedural safeguards of the right to a fair trial. I had denounced both these wrong decisions at the time but my criticism, on both occasions, fell on deaf ears.

The European Court of Human Rights has consistently failed to recognise those criminal offences which were de-penalised into administrative offences where the human rights guarantees of a fair trial were lost in transition.

Iacta alea est – the die is cast. Indeed, the die for administrative offences has been cast. Administrative offences, like Julius Caesar when he reached the Rubicon, are at the point of no return – non plus ultra.

There is no easy fix for the review of the institute of administrative offences as it has been allowed to develop haphazardly and appears to be very late in the day to apply corrective measures. The whole institute is in chaos. Tinkering with administrative law or, worse still, tweaking the Constitution will not solve the problem.

So it is not an easy task to solve it unless a thorough review and rethinking of the whole institute of administrative offences is carried out, aimed at addressing the manifold violations of procedural fair trial safeguards which administrative offences pose to human rights law.

This will not involve only one law but the entire edifice of administrative law upon which administrative offences are built.

Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.