The Chamber of Advocates has come out with a warning over a Bill making its way through Parliament which, if passed, they say will allow the imposition of criminal sanctions without due process.

"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."

"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 and our Constitutional Court 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, the Chamber said, and this "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 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. "

"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."

The Chamber highlighted that 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."