The Malta Independent 16 August 2022, Tuesday

Governing by administrative diktat

Kevin Aquilina Sunday, 19 June 2022, 07:36 Last update: about 3 months ago

The Catholic Church in Malta, in its latest position paper of 11 June on the Embryo Protection Bill No. 5 of 26 May, raises a number of important issues in relation to government’s proposed amendments to the Embryo Protection Act, Chapter 524 of the Laws of Malta. They range from ethical to moral considerations and from medical to legal. In this short contribution I address only the latter point as, at the moment, the debate is focusing more on the previous aspects than on the purely legal one.

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My understanding, when reading the Bill, is that it raises several rule of law issues. Malta has had a rule of law deficit since Independence, if not before, thanks to the main contribution of the two main political parties represented in the House of Representatives. Over time, both tribal parties have been competing against each other to debase and ridicule to the utmost possible the rule of law in Malta. The latest attempt is the Bill amending the Embryo Protection Act.

First, the Bill proposes that the Health minister is to govern, in relation to the matters proposed in the Bill, by administrative diktat. This is, indeed, worrying bearing in mind that successive governments have paid, and continue to pay, only lip service to the rule of law. All declare on paper to be furthering the interests of the rule of law. However, an examination of their conduct, in this instant case, the provisions of the Bill, indicates that government is taking the population and other European and national bodies for a ride when it states that it respects the rule of law. The reality is indeed the obverse.

In order to render insignificant and to impose its will upon Parliament, government’s autocratic Bill will empower it to completely ignore Parliament and to literally take the law as it stands today into its own hands in the matters contemplated in the Bill that were previously the sole preserve of Parliament, thereby bypassing the constitutional legislative function of the legislature. Henceforth, it will be a government appointed authority – the Embryo Protection Authority (the Authority) – that will be determining upon the extant legislative functions of Parliament in the matters regulated by the amending Bill.

As the Authority is government-appointed, it enjoys no independence and impartiality and hence the minister will be acting through the Authority in a very much camouflaged way. The Bill enables him to bypass the controls and review mechanisms that to date the legislature exercises upon government action. Now this indispensable rule of law requirement is being thrown to the dogs so that government can rule with impunity. It will also contribute to diminish the Opposition’s already feeble role in Parliament.

Second, once the government-appointed minister-dependant Authority will, in terms of the proposed amendments, be subverting Parliament’s legislative functions to assume them thereupon, the element of debate, review and supervision exercised by the House of Representatives during the whole legislative process will now come to an irremediable end.

This can constitute a serious precedent for the future should government, applying the Italian idiom of l’appetito vien mangiando (appetite comes with eating), elects to continue to totally bypass Parliament – and, admittedly, it has both the majority and arrogance to do so – might take a leaf from this Bill and extend it to other amending bills that might be proposed in this legislature that is, after all, still in its embryonic phase.

Third, the Church, in its position paper, correctly points out that in relation to the Protocol to be adopted by the Authority when the Bill comes in force that divests Parliament of its legislative power to assign it thereto to the said Authority, “there is no requirement that before its approval the said Protocol will be published in draft form, tabled in the House of Representatives and subjected to a consultation process. On the contrary, both Parliament and the public will be left out of the whole approval procedure and faced with a fait accompli. It is only discussed in the Parliamentary Committee for Health after its publication and the said Committee has no power to change it or amend it”.

Fourth, another significant point raised by the Church in its position paper is that “there is no time-limit established within the date for the publication of the protocol. If at all, it should be published in The Malta Government Gazette, in two daily newspapers (one in English and one in Maltese) within a week from its adoption by the Embryo Protection Authority and on the Embryo Protection Authority’s website. The minister responsible for health should also lay it on the table of the House of Representatives following its publication in the Government Gazette within a week if Parliament is in session; if not, within one week after resumption of sessions”.

Fifth, a further point worth nothing in the Church’s position paper is that “the protocol will not be published as a Legal Notice, it cannot be challenged in the House of Representatives through the negative resolution procedure. It is not even clear whether it can be challenged in court or, should this be possible, whether its effects are to be suspended until the courts would have decided any litigation brought in relation to the Protocol”.

Sixth, the Bill can also be criticised on the basis of its discriminatory effect as it targets some embryos to the advantage of others as though not all embryos are embryos that enjoy human dignity and the right to life. By considering embryos as tissue, cells, objects or having non-human attributes, it is possible to distinguish between imperfect and perfect embryos. The implication of this is that ingrained in the law will be a prejudice against disabled persons who, because of genetic discrimination, will be frozen for eternity and never ever allowed to be born.

Seventh, linked to the previous point is that the message government is sending through its proposed Bill is that rather than adopting an embracing, loving and inclusive attitude towards persons with disability, it is instead fostering a wrong intolerant culture that sends the wrong message to society that persons with disability are to be excluded therefrom, are to be considered as outcasts of society, as persons who do not deserve to be born once they are defective, abnormal and damaged. It is also indeed shameful that the Prime Minister appointed Commission for the Rights of Persons with Disability has supported the Bill. On the contrary, the majority of members of the more representative Council for the Rights of Persons with Disability (CRPD) have rightfully and correctly distanced themselves with the official position taken by the CRPD on the Bill.

Bearing all the above (and other) points, and without going into the ethical, moral and medical issues that this Bill raises which require a discussion in their own right, the procedure that government is proposing to adopt, that is, to administer Malta through administrative diktat, where the functioning of the health minister through the aegis of the Authority will not stand up to parliamentary scrutiny raises the question as to how sincere government is when it states that it upholds the rule of law. Its actions point in the opposite direction.

As a matter of fact what this Bill does in a nutshell is to: (a) concentrate power in relations to the matters regulated by the Bill in the health minister through the Authority whose appointment is controlled by none other than government; (b) remove significant parliamentary supervisory and control mechanisms over the health minister and the Authority; (c) bypass parliament while subverting its legislative function; (d) exclude transparency in the whole process; and (e) ensure that accountability and good governance are thrown overboard.

 

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta

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