Dilly-dallying and dangerous shortcuts: the Minister’s constitutional amendment

The Minister for Citizens’ Rights was willing to take a legal shortcut at the expense of those citizens’ rights after sleeping on consumer issues for no less than two years.

Were it not for the Opposition blocking the infamous amendment, which required a two-thirds majority, the citizen would have lost the right to a fair and impartial hearing before a court presided over by a magistrate or judge, even when accused of a criminal offence. The government’s constitutional amendment would allow such criminal cases to be heard in front of a tribunal appointed by the government of the day. No wonder Minister Dalli’s proposed amendment was criticised by politicians and experts alike.

Government loses a constitutional court case and an appeal

Late in 2013, the Competition Office alleged that a local organisation had breached the Competition Act. The Office began proceedings 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 and as the right to a fair hearing in such cases is enshrined in our Constitution, this case should only be heard before a Court and no other administrative body.

This protection has existed for the past 52 years and goes beyond what is provided by the European Convention of Human Rights, which specifi- cally 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 offers Maltese citizens better protection.

The ruling of 2015 was confirmed in May 2016 following an appeal lodged – and lost – by the Competition Office.

Government’s procrastination loses precious time

Let me now briefly refer to some other details that should not be left by the wayside.

Until the end of August 2016, everyone was given the impression that the decisions of the Constitutional Courts in April 2015 and May 2016 did not affect the functions of the Competition Office. Indeed, in its 2015 report published last year the Competition Office reported that it had concentrated on pending cases and that “41 cases were resolved”. However, when I asked the Minister for Consumer Affairs for more details, the reply that I got was that the information was being gathered. And 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 30 August 2016, in which a spokesman for the Consumer Affairs Minister confirmed that there were some problems but said that the Competition Office could still perform its functions, though it could not issue fines. Following another PQ I lodged, it transpired that, on 9 May 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.

Government panics and loses its cool

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 that if a law is declared to be unconstitutional, reason dictates that it is the law that should be amended and not the Constitution. Secondly, the repercussions of this amendment extend to all criminal offences. So, for example, with the aim, of expediting matters, the government may that all those accused of theft or hold-ups may be tried before some set-up constituted of lay people and not magistrates or judges. It is true that these decisions may be subject to appeal but is it correct for a person not to have access to a court of law in the first place?

On 1 December 2016 I requested the Minister to examine whether there could be suitable alternatives. For some inexplicable reason – and a few weeks later – she informed me that my email had never reached her, even though my computer never indicated an unsuccessful email transmission. 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.

The Opposition puts the dangerous amendment to rest

Did the government, including the Consumer Affairs Minister, read the Constitutional Courts judgement?

In the April 2015 judgement the Court suggested the settingup of more specialised courts: “What is needed is not an increase in the number of tribunals but the establishment of special courts – with the 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 short cuts at the expense of the citizen. The Opposition cannot and will not support this amendment.

Minister Helena Dalli