'Administrative fines and the Financial Intelligence Analysis Unit'

Author: Jake Navarro

Publisher: European Law Students Association - Malta & Kite Group

Pages: 116

 

I was invited late last year by the European Law Students Association - Malta to write a Foreword to their policy document on Administrative fines and the Financial Intelligence Analysis Unit (FIAU) that I gladly accepted. Indeed, administrative penalties is a topical subject that requires in-depth analysis bearing in mind that in the last couple of months only, there have already been nine judgments of the Civil Court (First Hall) that have unanimously declared the imposition of administrative penalties by organs of the public administration to be unconstitutional. Hence, this study is not only timely but indispensable.

ELSA Malta's contribution provides an excellent account on the state of judicial output by our courts on the subject of administrative penalties in the form of fines. It demonstrates quite clearly that in the branch of Administrative Law, the case law of the Maltese courts has been throughout consistent. The judicial decisions discussed in this study require proper examination by the government to revise the mess that successive Nationalist and Labourite governments have put the country in. As a matter of fact, successive public administrations have - irresponsibly - augmented the now exorbitant administrative penalties that the public administration can inflict without carrying out an in-depth human rights impact assessment to establish whether such penalties were in breach of the European Convention of Human Rights and Fundamental Freedoms and, if such was the case - and now we know that this is the case thanks to Maltese court judgments - to address this matter promptly and effectively.

Unfortunately, the FIAU, instead of adopting a precautionary approach as would have been prudent and diligent in the circumstances has brought the rule of law into disrepute on the pretext that it is awaiting a final decision on the merits by the Constitutional Court thereby ignoring the judgments of the court of first instance. In the meantime, the FIAU continues to inflict administrative penalties left, right and centre notwithstanding clear, unambiguous and unequivocal guidance by the Maltese courts, and this when it is aware that its administrative penalties will be successfully challenged in court. If at all, these judgments should not have only sounded the alarm bell but should have prompted the government to address this matter with due haste to ensure that the law is enforced successfully and does not end up a dead letter.

ELSA Malta's policy paper not only identifies the problem at issue but even attempts to propose one way of solving it. On the contrary, the government has not carried out any thorough study as the European Law Students Society has done. Nor does it appear that the government has sought expert advice on the matter, locally or from abroad.

I hope that this study will initially spark a frank bipartisan discussion by the government and the Opposition to propose, following extensive public consultation, a salutary solution to this vexata quaestio that would be in line with the European Convention on Human Rights and Fundamental Freedoms and that complies with the Constitution of Malta. ELSA Malta has thus chartered a pioneering approach that guides the way ahead.

Now is the time to move from a study of administrative penalties to actual implementation of the recommendations in this and other related studies. The government has dragged its feet too long, sought piecemeal solutions that lead nowhere except for declarations of unconstitutionality by the courts and, overall, the system of administrative penalties has been declared day in day out unconstitutional several times by the courts of law. This area of the law is crying out for reform and requires to be prioritised in the government's efforts to settle once and for all this matter.

Thanks ELSA Malta for this illuminating study! Hopefully it does not fall on deaf ears and the proposed draft bill is given its due attention.

Good luck in convincing the government, the Opposition and Parliament to see the light of day on administrative penalties!

 

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