A Position Paper of the Chamber of Advocates
The Chamber of Advocates has taken note of the amendments being proposed to the Interpretation Act through Bill 198 presented in Parliament recently. We must express our serious reservations about this Bill and its effect on the protection afforded by the Constitution from the imposition of criminal sanctions without due process. The Chamber finds the proposed amendments to be remarkable and calls upon the competent authorities to completely re-think the proposals contained in that Bill, and to show respect to the supreme law of the land – the Constitution.
Bill 198 seems to be, at least at first glance, a somewhat innocuous and harmless proposal to legislate and therefore to dictate to a court of law its interpretation and determination as to what constitutes a criminal offence. Bill 198 purports to be an amendment to the Interpretation Act. But on further analysis the real effect of this Bill if it were to become law, is certainly more far reaching and can lead, of course the Constitutional Courts permitting, to allow the imposition of what are intrinsically criminal sanctions, without due process.
Article 39 of our Constitution safeguards the due process of law in the prosecution of criminal offences and indeed provides for the secure protection of law, so that any person charged with a criminal offence shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. The operative part of that provision is that criminal sanctions can only be imposed by an independent and impartial court after a fair hearing of the case. There has been a growing tendency over the past 10 to 15 years for the Maltese legislator to enact laws, principally of a regulatory nature, that provide a public authority, as regulator, which is certainly not a court of law, with the power to investigate breaches of those laws, and then to judge them and to impose penalties which are termed in those various laws as administrative penalties. It is indeed here that the first dilution of the right to due process commences. Use of the term administrative penalty in legislation seems to have been considered by some as ousting the competence of our Constitutional Court from determining what those penalties are in substance and in effect. Just changing the terminology does not, and indeed should not discourage a court from making a proper assessment of what the sanction really is.
Due to their nature and extent, these penalties are more akin to and have indeed been categorised both by the European Court of Human Rights[1] and our Constitutional Court[2] as sanctions of a criminal nature and therefore persons on whom such sanctions are imposed, ought to be afforded the rights and protection of a fair hearing afforded by means of the Constitution or the Convention in a manner which is similar to that afforded and guaranteed to other persons charged with a criminal offence . What Bill 198 attempts to do is to re-categorise what constitutes a criminal sanction and, consequently a criminal offence, in a way which, not only does not reflect those judgements, but which is intended to specifically undermine the impetus and scope of the authority of those judgements.
The basis being used for this re-categorisation is article 124(14) of the Constitution itself. That provision empowers Parliament to enact ordinary legislation that allows for the interpretation of other legislative instruments, including the Constitution itself. Accordingly, at face value the introduction of a new definition of what would constitute a criminal sanction or punishment and would therefore substantively constitute a criminal offence in the Interpretation Act, does just that – gives meaning to the term criminal offence when used in other legislation, including the Constitution. The issue really is whether the new definition provides mere clarification or actually gives a new meaning to a term in the Constitution which has hitherto been consistently applied through judgements of our Constitutional Courts in a manner which is not reflected in the new definition. Again, this is exactly what Bill 198 does – it provides a definition of what constitutes a criminal sanction, restricts the meaning of what classifies as a criminal offence and therefore purports to determine the instances when the protection of article 39 of the Constitution comes to the fore. Its literal application would mean that instances that according to our Constitutional Court and the ECHR, should fall to be protected, will no longer be so protected and will not require due process by an impartial and independent court. This in our view constitutes an amendment, by stealth, of the Constitution itself which can only be amended by a 2/3 majority vote in the House of Representatives. Article 124 (14) used within its proper parameters does not give discretion to Parliament to change the substantive meaning of the Constitution. It is merely a power that allows Parliament to provide clarification to the meaning of terms used in laws. If the effect of that change is to have a substantive impact on the rights guaranteed and protected by the Constitution, then such a provision of law would require a change to the Constitution itself, and would therefore require the qualified majority of the House of Representatives.
Whichever way one looks at this proposed amendment, the effects of the introduction of this definition are substantive, indeed very much so. The re-characterisation of the term criminal offence will have a direct impact on the citizens’ right to the protection of law afforded by article 39 of the Constitution, and the rights currently enjoyed by any person under that article will be completely removed in certain instances which would otherwise have been enjoyed. In line with the current position there are 3 criteria[1] that would need to be considered in order to assess whether a sanction is of a criminal nature:
- The classification in domestic law;
- The nature of the offence;
- The severity of the penalty that the person concerned risks incurring.
The sanction imposed would be of a criminal nature and would therefore trigger off the protection of article 39 of the Constitution and article 6 of the Convention where:
- the law setting out the penalties applies generally to persons (for example, in the Engel case, the surcharge imposed covered all citizens in their capacity as taxpayers); rather than a specific group of people;
- the penalty imposed by a regulatory authority was not intended as pecuniary compensation for damages but essentially as a punishment to deter re-offending;
- The penalty was imposed under a general rule whose purposes is both deterrent and punitive;
- The sanction was substantial – taking into account the nature and degree of severity of the penalty.
The proposed changes in Bill 198 on the other hand significantly dilute these elements, indeed in certain cases does away with them completely. For instance, Bill 198 states that where a law does not contemplate a prison sentence then the sanction can never be considered as a criminal sanction, provided other elements subsist. A penalty can be as substantial as an authority may determine, it can have both a deterrent and punitive effect, but unless the law contemplates imprisonment as a sanction, then the sanction cannot be interpreted as a criminal sanction, and therefore the person against whom that sanction is imposed immediately loses all the protection of article 39 of the Constitution to be afforded a fair hearing, a protection that is currently enjoyed.
The Chamber cannot quite appreciate the policy basis to allow the imposition of potentially excessive penalties by regulatory authorities without due process. There can be little, if any doubt, that the ultimate effect of these amendments is to allow what the Constitutional Court and the ECHR have already termed as criminal sanctions to be imposed without due process. This is a significant erosion of the sanctity of the right to due process and the supremacy of the constitution, which is innately unacceptable. Efforts should be placed in a completely different direction, indeed efforts should be made at radically reforming the systems currently in place where a public authority is allowed to act as an investigator, prosecutor and judge in its own cause and to impose penalties on entities regulated by those same authorities. The very principle that allows such a process is offensive to a legal and juridical culture that is embedded in due process and where, as a fundamental principle, no one should be allowed to judge his own cause. Providing an appeal to a court of law, against such a decision and penalty, with all the limitations that appeal proceedings entail, for instance in the admission of evidence, will simply not suffice to re-integrate due process to its full extent. All efforts should be placed in the design of a process that would allow the competent authorities to investigate and to prosecute alleged breaches, but then allowing a full and unfettered review process of the public authority’s investigation, determination and imposition of a penalty, particularly where the penalties received from regulated entities end up enriching those same public authorities that take the proceeds of those penalties to their revenue lines.
Trying to take a short cut and in the process denting the supremacy of the Constitution and its interpretation by the Constitutional Court is certainly not the solution, indeed it is a short-sighted and very dangerous option that places the protection of law in jeopardy.
March 10, 2021
