Id-Dritt XXIX - Volume II by GħSL - Publications

ID - DRITT volume xxix

2019 Published by Għaqda Studenti tal-Liġi

Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society. Correspondence in relation to this publication should be forwarded to: The Publications Officer / Editor-In Chief, Id-Dritt Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@għsl.org © Għaqda Studenti tal-Liġi 2019 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher. Proofreading and editing done by the Editorial Board and the Publications Office. Some articles have been modified for reasons of clarity and/or uniformity. Opinions expressed in Id-Dritt Volume XIX do not necessarily represent the views of the Editorial Board, the Publications Office, the Publications Officer, or Għaqda Studenti tal-Liġi. Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit ISBN no: 978-99957-857-9-6

Preface Lara Attard President Għaqda Studenti tal-Liġi

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nother year, another Id-Dritt.

Tradition and innovation are two pillar values which have been ingrained within Għaqda Studenti tal-Liġi’s Publications Office throughout our history and, through this, GħSL boasts a legacy unprecedented by any other organisation. The publication of the Id-Dritt has always been on the forefront of GħSL’s agenda throughout the years. This stems from the fact that GħSL, together with our contributors, recognises the academic value of such a publication. We have, over the years, continued to ascertain that the material published within the Id-Dritt has a value, both academic and legal in nature, useful to students and practitioners alike. Our organisation has unabatedly shown passion towards legal discourse and academic thought. Notwithstanding the anti-academic climate that’s currently prevalent in today’s modern discourse, which has even led to some organisations opting to reduce or withdraw their output, Id-Dritt XXIX is testament to GħSL’s unwavering faith and effort in this field, notwithstanding the challenges we face. I would like to thank GħSL’s Publications Officer Ms. Emma-Marie Sammut, as well as her Editorial Team, and our in-house designer Matthew Charles Zammit, who through their perseverance and dedication to the project, have successfully managed to compile and publish the twenty-ninth edition of the Id-Dritt. Good luck to all future generations of the Publications Office, and may we continue to celebrate the publication of Id-Dritt for years to come! Thank you, Lara

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Opening Address Emma Marie Sammut Publications Officer Għaqda Studenti tal-Liġi

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On behalf of the GħSL Executive Board, the Publications Committee and the Id-Dritt Editorial Board, it is with great honour and privilege that I present to you Id-Dritt XXIX, the annual law journal published by the Malta Law Students’ Society. This law journal is, of course, the concerted effort of many people, ranging from; our contributors - who dedicated large swaths of their time to form and research their professional and educated points of view, which will now be forever immortalised within the pages of Id-Dritt; our editors - who shaped and formatted the content into a standard fitting of the prestigious Id-Dritt; our peer-reviewers - who pragmatically reviewed the intricacies of the content and provided professional and well-versed feedback; and lastly, to the GħSL Executive Board, without whose backing the compilation of this edition of Id-Dritt would not have come to fruition. Initially starting out in 1944, the project of going about publishing Id-Dritt was always seen as a highly-ambitious project, especially considering that it was a small handful of law students, with an amaranthine passion for the law, who came about the idea of compiling it. Through many trials and tribulations, the legal journal has now transformed itself into a quasi-customary obligation for Għaqda Studenti tal-Liġi; both because of its timely delivery year after year, and because of the notion of it being the product and detailed examination of external events, technological advancements and societal questions which are prevalent in our community.

Id-Dritt, along with its online sibling the GħSL Online Law Journal, nowadays abbreviated as the ‘OLJ’, are amongst the few mediums available which are accessible by students, academics and professionals in the legal field. The dissemination of legal knowledge, and appraisal, is perhaps more wide-spread now than in the past, encouraging fruitful and healthy academic discourse and wellresearched criticism, in a world often seemingly lacking of both. The world of academia, in Malta, is unfortunately somewhat x

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dismissed and sidelined, and this can be felt in perhaps every strata of the legal society. It is often seen that the freshly graduated lawyers of today, heavily rely on previously researched material and, this sort of attitude breeds mediocrity. That is not to say, of course, that there are not hard-working individuals in the legal sphere doing their utmost to further the legal profession and its collective legal brain. With this, it is no secret that we have not all at some point fallen victim to mediocrity - myself included. Mediocrity however, gets stamped out by those who choose to work to eradicate it, and such is the function of Id-Dritt; from our committee members who are students themselves, and to the contributors who opt not to regurgitate material and think independently.

Id-Dritt combines the past and present, and imagines new legal worlds for the future. Rousseau, Voltaire, Montesquieu and Moore, who all contributed towards the thinking that constitutions hold the power to invent and create better worlds for us all through words. This is, in its entirety, Id-Dritt’s mission; the journal provides a platform to its authors, enabling them to envision new eras for the legal world. The Publications Office has survived lo-these many years thanks to the dedicated contributors who always have fresh and well-read input on the legal world today. Id-Dritt is a testament to the ever dynamic world of law. Every day, a new sector emerges; one which would yield new academics, new practitioners and new legislation, eager to be researched. With this, I would like to thank a large number of people who, without their effort and dedication, would have rendered the 29th Edition of Id-Dritt but a pipe-dream: To all the contributors and peer-reviewers: your collective efforts, which have exhibited a high-standard of academic calibre, have continued to elevate Id-Dritt’s reputation within the legal profession. On behalf of everyone at GħSL, we thank you for your contributions and we hope that we have given them the recognition xi

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they deserve.

To Danielle, Diana, Carla, Chris, Cressida, Ethan, Elle, Justine, Lenka, Sean, Maria, Marie Claire, the Martinas, Maya, Michela, Raphäel, Stephanie and Steve: I could not have possibly asked for a better editorial team. Your dedication in ensuring that the finalisation of this project, as well as your unwavering loyalty and commitment, are qualities which are to be echoed throughout the ages. You have set the standard for the future of the publications committees. The future is bright for all you and with this, I wish you the very best, from the bottom of my heart. It’s been a pleasure, and no words can simply convey how grateful I am to all of you for the countless sleepless nights you have probably spent fixated on editing articles, and safeguarding the decade-long distinction that id-Dritt boasts.

To my direct predecessors, Matthew Charles and Ariane: living up to the standards that you had established for id-Dritt was indubitably always going to be a challenge. To this end, I couldn’t have finalised this compilation without your help and input, especially without you - Matthew Charles - who has spent countless hours editing and designing the final product. With two parents such as yourselves overseeing this vast project, there was no room for error, and one can only hope that this office has lived up to your standards. With this, I can only hope that my successor is just as fortunate as me - I had, undeniably, an excellent support-system. To Lara, Cynthia, Aidan, Nathaniel, Jessica, Aleandro, Raphael, Marc, Celine and Michela: my fellow executive board members. Without your support and input, id-Dritt would have not been the class act it is; not just presently, but even for years to come. To my parents, Gaetano and Dorothy, and to my loved ones: Thank you for always being there for me to listen to me rant. Thank you for always calming me down when I doubted myself on this project; and for helping me see reason when I was at my lowest. It is thanks to your love and patience that Id-Dritt has been published. xii

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And finally, to you, dear reader: on behalf of everyone in the Publications Committee and the GħSL Executive Board, we extend our deepest gratitude towards your interest in this publication. We hope that this journal goes on to encourage and inspire you to read, analyse, critique and participate in such projects in the future, even if such endeavours seem inconceivable in nature. Here at GħSL, we believe that achievement is best garnered through great difficulty. Id-Dritt would have never been achieved without the blood, sweat and tears of many a collective. And with this, I shall conclude with a quote by Charles Darwin himself;

‘It is the long history of humankind (and animal kind, too) that those who learned to collaborate and improvise most effectively have prevailed.’

Thank you, Emma

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Preamble Diana A. Ungureanu Editor-In-Chief Id-Dritt XXIX

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he annual publication of Id-Dritt is a testament to the ever-changing legal landscape faced by students and legal practitioners alike - whether they choose to practice in Malta or abroad. It is also an indicator of the deep-seated sense of duty to inform and, educate, on the part of those who have garnered a degree of expertise in a given field of legal practice. This is why, for years on end, this peer reviewed law journal has proved itself to be an indispensable and reliable part of every law student’s toolbox. Indeed, many law students consider this publication as their first real exposure to the lesser known fields of legal practice and, thus, opening up a world of possibilities for their future careers as legal practitioners. With the rise of digitisation we have seen the emergence of new areas of legal practice such as block chain and crypto-currency. However, we have also witnessed technology changing the way in which more traditional areas of law operate and, the subsequent implications brought with it. In reality, this exposes legal practitioners to challenges which they could not have foreseen or trained for. In this context, technological advancement is an equalizer which puts law students and legal practitioners - with decades of experience - on equal footing, urging them to collaborate and contribute to the aquis of knowledge in these emerging areas of legal practice. This edition of Id-Dritt has proven the value of tackling legal topics that are not yet easily accessible as topics of research. In addition, it has also been a platform where this collaboration can take place first hand. On a different note, it is with pride that I commend the editorial board for their tireless commitment to this publication and for giving their time and energy to ensure that it maintains the high standard it has always adhered to. In addition to this, I would like to congratulate the editorial teams for consistently publishing articles in the Maltese language, and the contributors who choose to submit high quality content in xvi

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Maltese. The importance of this practice becomes evident with the discomfort that sets in when one is faced with an academic work in any other language besides English. It is with a sense of hope that I encourage future contributors and editorial members to embrace this discomfort as there is a great deal to be gained from increasing the number of academic articles in the Maltese language. This will certainly contribute to the process of putting the Maltese language in a more prominent position in relation to academia and legal training. Finally, I must conclude by showing my appreciation and gratitude to the members of the Għaqda Studenti tal-Liġi Executive Board who have worked towards an incredible term. I owe a special thank you to the Publications Officer, Emma-Marie Sammut, for the challenging and unique experience of contributing to the publication of the 29th edition of Id-Dritt. I have come to realise that this is a publication which improves with time. Whilst the publication process remains unchanged, the challenges faced by the back office team will always vary. No amount of preparation and foresight can prepare someone to avoid and overcome these challenges seamlessly. Despite this, it is always the hope of any team that its successors will be better and aspire to bigger things. I draw this experience to an end knowing that future editorial boards will exceed all expectations, Many thanks, Diana

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Foreword Professor Kevin Aquilina Dean Faculty of Laws

NOTES

t gives me pleasure to be able to write this Foreword to Id-Dritt, Volume XXIX (2019). This year, once again, the topics covered in this student peer-reviewed journal span over a plurality of branches of the law ranging from Public Law subjects (such as Constitutional Law, Administrative Law, Sports Law), to International Law subjects (such as European Union Law and International Space Law), and to Private Law subjects (such as Notarial Law and Financial Law). This variety of legal branches written upon in this annual publication ensures that a wide breadth of the law is covered so that the reader will surely find a paper which appeals to him/her interests. These myriad subjects also indicate how complicated and diversified the law has become. Indeed, the study of law no longer spans around the Codes and a handful of special laws as used to be the case in the past. In our day and age, the law has evolved from the traditional branches of Civil and Criminal Law to encompass new emerging branches such as those related to Animal Welfare Law, Fintech Law and Sports Law. Unfortunately, in Malta, there are very few legal journals where an academic, legal professional or student may publish. The Chamber of Advocates’ Law and Practice is one such journal. ELSA Malta used to publish their own journal – the ELSA Malta Review – but this was last published a few years ago and, at least to this writer, it remains unclear whether it has been discontinued. Hence, the avenues for publishing legal material in Malta tend to be sparse. Suffice it to state here that even the Faculty of Laws has ceased publishing its own Mediterranean Journal of Human Rights and the new journal which had replaced it – the Mediterranean Human Rights Review – is still in its infancy: only one issue has been published so far. In the dearth of legal periodical publications in Malta, Id-Dritt stands out conspicuously for it has managed to survive the onslaught of time and continued to be published intermittently over the years boasting of ground-breaking contributions by the best legal luminaries in Malta. I refer here, in this volume, for instance, to the papers by two Maltese judges on the European Court of Human Rights – Judge Giovanni Bonello and Judge Vincent De Gaetano – xx

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who have regaled us with two papers in the realm of Constitutional Law. Judge Bonello questions whether Civil Law still dominates over Constitutional Law – as was the position when the five Codes enjoyed superiority over the Constitution – whilst Judge De Gaetano reflects upon a traditional fundamental subject, though yet still very topical to date, of Constitutional Law – the rule of law. Needless to say, these two (and the other) papers in this collection are a valuable source of information and enrichment to the Law Student to whom this volume is after all addressed. Although the Għaqda Studenti tal-Liġi have their own website, where they also publish articles of legal significance online, they have – to date – not yet begun to publish Id-Dritt electronically, apart from the print form – the latter currently being the case. By publishing electronically, even if only on their website, they would make all these papers compiled in Id-Dritt available worldwide, especially to comparatists with a keen interest on the Maltese Legal System who would be able to access this wealth of material published in Id-Dritt, especially when one bears in mind that few and far between are those books that are published on such a system and which cover such a span of Maltese Law subjects as Id-Dritt effectively and laudably does. Hopefully, the day comes which Id-Dritt becomes more accessible in electronic format in this digital era of technology. I thank the Editors and Members of the Editorial Board of IdDritt as well as their contributors for all the good and hard work they are putting in during their free time to develop progressively and intermittently the study of Maltese Law making it more accessible to the law student, legal practitioner, the judiciary and society in general.

Professor Kevin Aquilina Dean, Faculty of Laws Msida, 11th April 2019

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Editorial Board

Publications Officer Emma-Marie Sammut Editor-In-Chief Diana Ungureanu Editors Carla Farrugia Michela Pace Justine Xuereb Steve Vella Cressida Scorfna Maria Refalo Stephanie Camilleri Lenka Portelli Maya Spiteri Dalli Chris Vassallo Laferla Raphael Buttigieg Marie Claire Mizzi Martina Calafato Sean Portelli Danielle Gauci Martina Cassar

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Executive Board 2017 / 2018 Għaqda Studenti tal-Liġi (GħSL)

President

Lara Attard

Vice President for Educational Affairs

Cynthia Duncan

Vice President for Social Affairs Aidan Cutajar

Secretary General

Jessica Napier

Financial Controller

Nathaniel Falzon

Academic Officer

Raphael Sammut DeMarco

International Officer Aleandro Mifsud

Marketing Officer Michela Galea

Events Officer Marc Dimech

Policy Officer

Celine Cuschieri Debono

Publications Officer Emma-Marie Sammut

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Contents

Volume 1

Administrative Law The notion of “public authority” in judicial review actions under Article 469A, Cap. 12

Dr. Tonio Borg

Animal Welfare Law Analysis of de facto & de jure Animal Zoos in Malta

Dr. Ariane Aquilina

Company Law The register of Beneficial Owners

Dr. Priscilla Mifsud Parker

Constitutional Law The right to a healthy environment as enshrined in our Constitution

The Rule of Law

Maltese citizenship: A historical perspective, from Independence to Present Day

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Dr. Jose Herrera

Chief Justice Emeritus Vincent A. De Gaetano

Dr. Jean Philippe Chectuti

Criminal Law Il-ħelsien mill-arrest, u l- ‘house arrest’ Dr. Veronique Dalli

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The Inquiring Magistrate

157

Is “white collar crime” a crime? A critical analysis into the criminalisation of white collar crime

192

Judge Consuelo Scerri Herrera

Dr. Charles Mercieca

D evelopment Planning Law Determining a planning permission: From Act I of 1992, to Act III of 2016 Dr. Robert Musumeci

210

European Union Law The Malta Armed Forces Act, set against Maltese neutrality and developments within the European Union frameworks

248

How is the service of judicial and extrajudicial documents, in civil or commercial matters, done in Member States?

286

Dr. Mark Ellul

Judge Consuelo Scerri Herrera

Financial Law The Basel Accords, as a Transnational Regulatory Law Dr. George Bugeja

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306

Volume 2

Fintech Law Civil Law implications of Smart Contracts

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The Virtual Financial Assets Regime regulating the future economy

360

Dr. Silvana Zammit

Dr. Cherise Abela Grech

Human Rights Law Detention of asylum seekers in Malta a study of Malta and Strasbourg Jurisprudence Dr. Carla Camilleri

386

The right to time? Unequal working hours, and the failure of gender equality policies and legislation

411

When Civil Law trumps the Constitutional Court

427

The impact of the judgements of the European Court of Human Rights on domestic legal systems

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Professor Frances Camilleri Cassar

Dr. Giovanni Bonello

Dr. Kathleen Vella

I nternational Space Law Il-Liġi Spazjali: Il-Passat, il-Preżent u l-Futur

Dr. Eliza Borg Rizzo

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L egislative Drafting and Statutory Interpretation Select principles of Maltese Law applied in legislative drafting and statutory interpretation

Professor Kevin Aquilina

488

Notarial Law The E-Notary: A study of the progress of electronic notarisation and registration in Europe

Dr. Chantelle Borg

524

Sports Law A legal overview of recent developments concerning match-fixing in Malta Dr. Robert Dingli

545

Utilities Law Reflections on the independence of utility regulators in Malta

Dr. Paul Edgar Micallef

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Fintech Law

Civil Law implications of Smart Contracts

Dr. Silvana Zammit

Dr Silvana Zammit - Chetcuti Cauchi is an international firm based in Malta, with offices in Valletta, Limassol, London, Zurich and Hong Kong. Through its multidisciplinary approach, it is able to offer numerous legal, tax and accounting services within the fields of Corporate & Tax, Financial Services & Fintech, Yachts & Jets, Residency & Citizenship and Property. Dr Silvana Zammit is the Global Property, Yachts & Jets Partner at Chetcuti Cauchi Advocates. She also heads the international Gaming Law practice advising on regulatory, tax and commercial aspects of the gaming industry. Dr Silvana Zammit is an active member of the Malta Remote Gaming Council and the Chamber of Advocates and has formed part of various committees revising Malta’s i-gaming legislation. Dr Zammit’s experience also covers maritime, aviation and general transport law, and is renowned for the structuring the ownership of super-yachts and private jets for ultrahigh net worth individuals. 339

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1. Introduction

s the world moves towards integration with autonomous and distributed technological systems acting independently of human will and requiring little human intervention, one is to analyse how such systems will impact the established legal regimes which have been in place for centuries. With the emergence of new groundbreaking technology such as distributed ledger technologies (‘DLTs’) and artificial intelligence (‘AI’), a great number of industries such as trade, manufacturing and construction, will be affected resulting in disruption of the current systems. This state of matters led to the coining of the terms disruptive innovations or disruptive technologies. Indeed, the term disruptive innovations has been making rounds in business-related scenarios. A technology or other innovation is considered to be disruptive when it ‘displaces an established technology and shakes up the industry or a ground-breaking product that creates a completely new industry’1. In the 1980s and 1990s, the disruptive technology that altered the course of all industries worldwide was the advent of the age of the World Wide Web which took the world by storm, resulting in businesspersons and entrepreneurs seeking to implement this technology into their business model to create a competitive edge. As was learned from that experience, the situation that ensues is such that technology leads and the law struggles to keep up with the pace of technological advancements. In 2017, when legislators could finally draw a deep breath after their struggle to update laws to ensure that such laws are applicable to the current state of global connectivity, technology was once again one step ahead and once more, it disrupted the industry with the widespread trending topics of distributed ledger technology, blockchain, Bitcoin and cryptocurrencies. Legislators must once again go back to the drawing board to ensure that current legislation caters for such technologies and if not, to create new regulation to 1

Rouse, M. (2018). What is disruptive technology? - Definition from WhatIs.com. [online] WhatIs.com. Available at <https://whatis.techtarget.com/definition/disruptive-technology> accessed 30 Aug 2018.

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safeguard the principles of established laws. The Maltese legislator sought to be at the forefront of promulgating legislation to tackle the emergence and popularity of DLTs and cryptocurrencies and, provide a level of regulation in this sector. Indeed, the Maltese legislator blazed the trail and in July 2018 enacted what is being referred to as one of the world’s first comprehensive DLT and Virtual Currencies Legislation. The three laws approved2 cover DLTs (including blockchain), cryptocurrencies and service providers. Whilst, the Innovative Technology Arrangements and Services Act, as approved in July 2018, tackles the regulation of DLTs, the implications of the adoption of smart contracts by such systems requires further analysis. In this article we shall analyse the implications of the principles of civil law to smart contracts, drawing also from literature and studies available not specifically on smart contracts but on what might be considered to an extent analogue technologies or systems.

2. What are Smart Contracts? The term smart contract was first coined in 1996 by Nick Szabo who defined such contracts as ‘a set of promises, specified in digital form, including protocols within which the parties perform on these promises’3. The theories developed by Nick Szabo lay dormant for thirteen years until the appearance of the Bitcoin Blockchain into the public realm and subsequently the emergence of a number of other distributed ledgers, such as the Ethereum Blockchain, which began adopting smart contracts in their systems. The arrival of such technologies led to the definition of Szabo being apprised to ‘a 2

The Virtual Financial Assets Act, The Innovative Technology Arrangements and Services Act and The Malta Digital Innovation Authority Act.

Szabo, N. (1996). Nick Szabo - Smart Contracts: Building Blocks for Digital Markets. [online] Fon.hum.uva.nl. Available at: <http://www.fon.hum.uva.nl/rob/Courses/InformationInSpeech/CDROM/Literature/LOTwinterschool2006/szabo.best.vwh.net/smart_contracts_2. html> accessed 30 Aug 2018.

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computer protocol – an algorithm - that can self-execute, self-enforce, self-verify and self-constrain the performance of its instructions’4 and several other definitions which still lead to the same conclusion – a smart contract is a programmed code. The term smart contract is a bit misleading as this technological arrangement is neither smart nor a contract, in the traditional sense of the word. The Virtual Financial Assets Act, 2018 came up with its own definition of smart contracts in Article 2 as a technological arrangement consisting of ‘a computer protocol or an arrangement concluded wholly or entirely on electronic form, which is automatable and enforceable by computer code, although some parts may require human input and control and which may be enforceable by ordinary legal methods or by a mixture of both.’ In simpler terms, smart contracts are computer programmes created with an ‘if this’, then that function which is automatically triggered with very little human intervention. The smart contract does not learn, nor develop according to its environment, as is the case with artificial intelligence, but merely follows a set of pre-determined commands coded in its programming. For example, if Individual X clicks play on a song created by Singer Z on Music Platform S, then Music Platform S transfers €1 to Singer Z’s digital account. Previously, such transactions between Intellectual Property Rights (IPRs) holders and a user of such IPRs would be governed by a licensing agreement which would, at the end of a predetermined time period, calculate the royalties owed to Singer Z – the implementation of a smart contract on a distributed ledger technology would make such royalties payments almost an instantaneous transfer – resulting in a larger return to the IPR holder. Are such arrangements subject to the application of contractual law? What are the risks posed by such smart contracts? Is our legal system ready to embrace the notion of smart contracts? Are these 4 Swanson T., Great Chain Of Numbers: A Guide To Smart Contracts, Smart Property, And Trustless Asset Management 16 (2014); See Also Melanie Swan, Blockchain: Blueprint For A New Economy 16 (2015) ([A] smart contract is both defined by the code and executed (or enforced) by the code, automatically without discretion.

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smart contracts enforceable? What happens if there is a bug in the smart contract?; all these questions cross one’s mind when thinking of the possible implications that smart contracts will have on the current legal regime. In order to be in a position to address the above quintessential questions, one must first garner a proper understanding of the elements of contract law under Maltese law. Only by understanding elements of contractual law would we be able to analyse whether smart contracts are in fact contracts and if they are not such, how the legal sector will potentially tackle them.

3. Elements of Contract Law and Smart Contract Implications Article 960 of the Civil Code of Malta is the key provision relating to contracts under Maltese law. This provision holds that a contract is an agreement between two or more persons by which an obligation is created, regulated or dissolved.5 Therefore, this definition provides for three main requisites: i.

an agreement;

ii. two or more persons; and iii. the creation, regulation or dissolution of an obligation.

Prima facie, smart contracts may not seem to meet even this basic definition of a ‘contract’ under Maltese law. Smart contracts by their very nature remove the necessity of involving persons in the transactions which are executed automatically and therefore seem to fail to fulfil the second requisite outlined above – this is especially true in relation to totally automated smart contracts. 5

Civil Code, Chapter 16 of the Laws of Malta.

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Considering the requirement of there being an agreement in the context of smart contracts, one could argue that by forming part of a blockchain which functions on the implementation of smart contracts, one is tacitly agreeing with all the other nodes and users of the blockchain on the terms applicable through the smart contracts. However, this requires further investigation and one should analyse what constitutes consent and agreement under Maltese law in order to validate whether transactions based on smart contracts are capable of being considered as contracts, as shall be discussed in this article. With reference to the third requisite, automated performance is at the core of smart contacts performance, presuming the existence of an obligation or obligations to be performed. The presumed existence of an obligation seems to also underlie the definition of smart contracts provided for in the Virtual Financial Assets Act wherein enforceability (presumably of an obligation or obligations) is core to the definition.

3.1 The Requirements of Consent Article 960 of the Civil Code provides for the rule that there must be an agreement between two or more parties to the contract; the Romans called this concept consensus ad idem which has been commonly translated to ‘a meeting of the minds or wills’ where the two parties are in full agreement and they give their consent to the contractual obligation they are entering into. Well-established doctrine has held that there are four stages that must be completed before consent is deemed to be given by the parties entering into a contract. The first stage comprises of the internal volition to enter into a contract – a party to the contract must be willing to bind himself to the conditions therein. Consent must be definitive following the termination of negotiations between the parties and must also be freely given by that party without any forms of duress suffered by the party giving consent. The second stage of the consent process is the external 344

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manifestation of this internal will to contract. This manifestation of consent varies according to the type of contract that is being entered into. For instance, if the contract contemplates the transfer of immovable property, our law dictates that this external manifestation of the parties consent must be done through a public deed. However, there are other forms of contracts where the consent is manifested either expressly (written or oral consent) or tacitly, which is of vital interest when discussing the topic of smart contracts. As one may deduce, tacit consent creates several legal issues and has long been the subject of debate in legal doctrine. Tacit forms of consent are all those positive or negative acts which, though they are not signs destined for the manifestation of ideas, implicitly show that the person who performs them wants to bind himself. The positive tacit form of consent has often been readily accepted considering that although there is no verbal acceptance of the contract, the parties act in a manner that is deemed to indicate such consent. At this stage, it may be argued that by entering into a blockchain which is based on a set of protocols adopted through smart contracts, the parties as nodes of the blockchain are demonstrating their volition to contract with the other nodes and are providing tacit consent to the terms of that smart contract through positive action when forming part of the blockchain. The negative form of tacit consent creates further legal headaches. For instance, if Y is owed €100 from X but Y does nothing in order to recuperate that sum, is Y tacitly renouncing to his right to recuperate his money? Traditionalist jurists believe that consent can be manifested tacitly and negatively but one must always prove an intention to renounce. Thus, in the example given above, Y would not renounce to his right for repayment, unless there was a proven willingness on his part to renounce to that right. The modern view, on the other hand, holds that if by Y’s inactivity X assumes that there was renunciation of that right, the law would protect X who was acting in good faith, regardless of whether Y really intended to renounce to this right or not. 345

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Since Maltese Courts apply the ‘teoria della volonta’, the Courts have generally upheld the traditionalist view on tacit negative consent. Indeed, in Sammut v. Azzopardi6 the Court held that it is possible for one to renounce to his rights in tacit negative form only if there is a clear indication that there was the ‘volonta’ to renounce to that right and the facts are absolutely irreconcilable with the intention to conserve that right. In a relatively recent case,7 this rationale was once again reaffirmed as the Court held that for tacit consent to exist the person consenting must be fully aware of the consequences of such consent and his conduct must be such that it can be irrefutably interpreted as consenting, which tacit consent must be clearly and unequivocally result in such. It is vital that what is externally manifested corresponds with what the parties intended; if there is a discrepancy between the internal will of the party and the external manifestation, then there could also be a defect in consent. If there is such a discrepancy one needs to determine whether this occurred through voluntary or involuntary means. Involuntary discrepancy between the internal will and the external manifestation results from vices of consent such as error, fraud or violence; whereas voluntary discrepancy is the result of simulation, when one of the parties simulates consent by intending to do something but manifests the intent to do something else. The distinction between the two is of utmost importance as, if there is a vice of consent, the contract or a term within the contract is rendered null and void, whereas if there is simulation, any third parties who are acting in good faith are protected. The third stage of consent holds that consent must be forthcoming from all parties to the contract, since all the parties must have the will to contract. They must express this will externally and this will must relate to the same subject matter. If one of these elements is lacking, it would result in error in corporae or error in negotio. 6

Koll. Volum LXXVII (1993), Pt. 2, S. 1, p. 368.

Gauci Joseph vs. MCL Ltd., Court of Appeal, 20 October 2003.

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The fourth and final stage of consent is the union of acts of volition. When there is concurrence between the parties’ wills, their consent becomes binding and it would not be lawful for those parties to revoke it. A proposal does not bind the person who makes it and can freely be withdrawn, unless the other party declares his acceptance. Which leads us to the question: when is a contract deemed to be accepted? Various theories have been developed in order to answer this difficulty. The theory of declaration holds that as soon as the offeree declares his acceptance of the offer, then the contract is complete. Proponents of this theory hold that as soon as there are two or more consents existing at the same time, the contract is concluded. The theory of transmission, on the other hand, holds that one should not only accept the offer, but this acceptance needs to be transmitted to the offeror. The theory of reception holds that the contract is concluded once the acceptance is received either by the offeror or by the offeror’s business. Lastly, the theory of information holds that the other three theories are merely a process which needs to be undertaken before the offeror is informed of the offeree’s acceptance. It is only once the offeror is aware that acceptance has been granted that the contract is concluded. Professor Caruana Galizia states that the theory of information is the most appropriate way8 of determining when a contract has been concluded, as in order for there to be a union of wills it is not enough that these have been externally manifested; such manifestations themselves must also be united. This implies that they must exist externally vis-a-vis the other party, which is not possible unless the intention of each party is made known to the other. However, Caruana Galizia also holds that in practice this system could be detrimental to honest trade as it gives the offeror a longer timeframe in which to revoke his declaration, which can make the existence and the perfection of the contract difficult to prove. Indeed, our Courts have adopted a system that is more akin to the 8

Caruana Galizia V. and Ganado J.M., Notes on Civil Law (Revised Edition, University of Malta 1981) p. 13.

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theory of reception. In the case Accountant General v. Alex Vella9, the Government had issued a tender for the supply of certain materials and the offer had to remain valid for two months. The defendant, on behalf of his company, submitted a tender and kept the offer open for two months as had been requested. On the last day, the Government called the defendant’s company to inform them that the offer had been accepted. The employee who received the phone call did not inform anyone and as such the defendant was not made aware of this acceptance. The defendant claimed that a letter of acceptance had only reached him after the lapse of two months when his offer was no longer valid. The Court quoted various jurists and held that once the offer was made, the defendant had to keep his place of business open in order to receive the acceptance. If the corporate system was not managed efficiently and there was a lack of communication between the employee and the director, the offeree should not be made to suffer for such failure. As such, the Court held that once the Government had phoned the company and informed the company of its acceptance, then the contract was concluded – reaffirming that the theory of reception is the one that is applied. Despite the fact that our Courts have upheld the theory of reception as the standard for determining when a civil contract has been concluded, the matter is somewhat different when it comes to contracts concluded at a distance or through electronic means. Article 110 of the Commercial Code10 (which deals with commercial contracts which are concluded at a distance) states that it is the theory of information which is applicable in such instances. Moreover, Article 10 of the Electronic Commerce Act11 states that:

10. Unless otherwise agreed by parties who are not 9

The Accountant General vs. Alex Vella on behalf of the G.S Falzon Company Limited Commercial Court Commercial Cour 27th July 1989. 10

Commercial Code, Chapter 13 of the Laws of Malta, Article 110 states: A contract stipulated by means of correspondence, whether by letter or telegram, between parties at a distance, is not complete if the acceptance has not become known to the party making the offer within the time fixed by him or within such time as is ordinarily required for the exchange of the offer and the acceptance, according to the nature of the contract and the usages of trade generally.

Electronic Commerce Act, Chapter 426 of the Laws of Malta.

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consumers, where the recipient of the service places his order through technological means: (a) an electronic contract is concluded when after placing his order, the recipient of the service has received from the service provider an acknowledgement of receipt of the order made by the recipient: Provided that the service provider must acknowledge receipt of the order made by the recipient without undue delay and by electronic means; and (b) the order made by the recipient and the acknowledgement of receipt are deemed to have been received when the parties to whom they are addressed are able to access them. Thus, when it comes to e-contracts and commercial contracts it is the theory of information that applies, seeing as it is incredibly easy for a service provider to miss an acceptance that has reached him electronically. This creates an additional layer of assurance in order to ascertain that both the trader and the buyer are protected when dealing electronically. Presumably this shall also be the case when considering smart contracts, if these are to be deemed as contracts at all. Indeed, applying the above requirements of consent in the context of smart contracts, the question of whether consent is present becomes mostly relevant in totally automated smart contracts whereby transactions are concluded by the system. Prima facie one may argue that the parties are not providing their affirmative and unequivocal consent and therefore no contract is created. In this context, it has been argued that if the computer logic has already been encoded and both parties have the understanding as to what rules and terms have been put in place, they can be bound by the transactions taking place subsequent to that logic.12 This would potentially exclude 12

Leung, Hoi Tak of Ashurst Hong Kong, Smart contracts - can code ever be law?, <https:// www.ashurst.com/en/news-and-insights/legal-updates/smart-contracts---can-code-ever-be-

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enforceability of smart contracts that purely digitise processes without providing for legal terms or are a follow-on contract brought about by the performance of the previous smart contract.13 It is unclear however in this situation, whether such consent to use the system makes the smart contact a contract in the traditional sense or whether the contract itself is that of using the system and the smart contract that ensues binding the party is a consequence that bequeaths the performance of the original contract of the parties to use/participate in the system.

3.2 A Tool or a Contract? A Comparison to Artificial Agency In order to address the burden placed upon traders for the conclusion of e-contracts, given that as indicated in Article 10 of the Electronic Commerce Act, there is often a hefty process that needs to be exhausted before a contract is deemed to be concluded, traders have resorted to the law of agency, in particular, the possibility of utilising artificial agents (AAs) to conduct their trades through the application of smart contracts. Trading artificial agents carry out a variety of transactions without the intervention or indeed supervision of humans, through the implementation of programmed smart contracts. In this context, a question arises whether such artificial agents should be treated as tools for humans or as agents in their own right. If one were to consider the former, then the rules on product liability found in our legislation and European Union law, might apply to them, in the sense that their producers and manufacturers would be liable for any damage caused through defects in their agent’s software. However, these agents carry out a series of complex business transactions which create rights and obligations between the various parties. For instance, if one takes the software used in airlines which automatically changes the pricing on fares for flights depending on a number of factors such as demand, law/>. 13

Ibid.

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season and availability of the seats for that particular flight,14 it would not necessarily be correct to merely consider these artificial agents (AAs) as tools used by humans to carry out business, as some AAs carry out the business decisions and transactions on their own. Once again this depends entirely upon the type of AAs which are being employed. This system of automated electronic transactions is becoming more popular with the promulgation of smarts contracts and blockchain technologies. The US National Conference of Commissioners for Uniform State Laws (NCCUSL) and the Uniform Electronic Transactions Act (UETA) of 1999 define an electronic agent as:

a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual15 Although the above definition (one which is startlingly similar to the definition of a smart contract) has formed part of US e-commerce law for over 19 years, neither the Maltese Electronic Commerce Act nor its model, the EU E-Commerce Directive 2000/31/EC, contain such a definition. The UETA definition is by no means perfect; whilst it focuses on the possibility of AAs to act in an automated manner, it completely negates the fact that such systems can act autonomously and not just automatically. The UETA definition therefore once again places the AA in the position of a tool employed by a trader.16 Ebay17 and Amazon18 use an artificial agent in their online 14

Garvey F. and Sankaranarayanan S., ‘Intelligent Agent based Flight Search and Booking System’ [2012] 1(4) International Journal of Advanced Research in Artificial Intelligence.

Uniform Electronic Transactions Act (UETA) (1999) (No.40) s. 2(6).

Notes to UETA (n. 40) s. 2(6).

Chopra S. and White L. F., A Legal Theory for Autonomous Artificial Agents (1st edn, University of Michigan Press 2011) 66. 18

van Melle W., Chapter 4—The Structure of the MYCIN System in Bruce G. Buchanan and Edward H. Shortliffe (eds), Rule-Based Expert Systems: The MYCIN Experiments of the Stan-

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auctioning system. Bidders place bids on an item and once the timeperiod elapses, the artificial agent awards the item to the highest bidder. In this case, the agent is considered to be a Zero Intelligence agent, which means that they are unaffected by their surroundings, their only aim being to acquire the highest possible bid regardless of the environment in which they operate.19 In order to determine whether artificial agents are merely tools or agents in their own right, the US Code, Title 15, Chapter 96, Article 7001(h) states that a contract or a transaction may not be denied legal effect, validity, or enforceability solely because its formation, creation, or delivery involved the action of one or more electronic agents so long as the action of any such electronic agent is legally attributable to the person to be bound. However, the UN Convention on Electronic Communications in International Contracts Documents held that it would not be correct to use the general principles of agency for artificial agents, as ultimately it is still a natural or a legal person which utilises such system and which is bound by the obligations created by the computer programme.20 Fundamentally, the UNCITRAL leaned towards the notion that artificial agents are mere tools used by traders which are legal or natural persons. This theory states that AAs are tools, thus holds that a principal (P) engages the use of an AA in order to create a contractually binding obligation with a third party (T). In this context, the actions of AA directly bind P for their performance, as there is a principal-agent relationship. If T suffers damages due to the irregular behaviour of AA he may turn to AA’s principal for compensation. In a similar manner, smart contracts may be deemed solely as programmatically-executed transactions or more precisely: technology for enforcing agreements in that agreements are in ford Heuristic Programming Project (Addison Wesley, Reading 1984). 19

Gode D and Sunder S, ‘Allocative Efficiency of Markets with Zero-intelligence Traders: Market as a Partial Substitute for Individual Rationality’ [1993] 101(1) Journal of Political Economy <http://www.jstor.org/stable/pdf/2138676.pdf?_=1462274742597> accessed 3 May 2016. 20

United Nations, United Nations Convention on the Use of Electronic Communications in International Contracts (1st edn, United Nations Publication 2007) p. 70.

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people’s minds and not in software or on hardware.21 However, this concept of AAs or smart contracts being merely tools, encounters obstacles when one considers that contracts may also be carried out between AAs themselves without human involvement and totally automated smart contracts may bind the parties without their knowledge. Up until now, when speaking of AAs we have considered the AA conducting a transaction on behalf of his principal with a human or corporate third party. However, what would happen if an AA of Trader A concludes a contract with an AA of Trader B, with neither trader being involved at all in the process, as may be the case with regards to the implementation of certain smart contracts? In order to provide a clear example of such a transaction, let us assume that Trader A is on the market for a specific set of supplies. In order to evaluate all the possibilities and which ones best cater to his needs, he engages the use of an AA (AAA) which will scout the market, compare options and when the right product is found, execute a purchase agreement. Trader B, on the other hand is the supplier of the said product, he also utilises an AA (AAB) to conclude contracts with prospective buyers; once an offer is placed, AAB determines whether this is acceptable or not and proceeds with the transaction. As such, we have a contract that was formulated between AAA and AAB, who are acting on behalf of their principals but who have done so autonomously from their principals. As was stated earlier, the parties become bound to the performance of the contract when the offeror receives the offeree’s acceptance to a contract that encapsulates the intentions of both parties. In the scenario outlined above, the agreement between the principal parties is in principle fiction, as neither A nor B are even aware that a contract is being concluded. The agreement which may be concluded between the two AA’s may not resemble at all what A and B had in mind since 21 Gidden Andrew, Should Smart Contracts Be Legally-Enforceable? <https://blockchainatberkeley.blog/should-smart-contracts-be-legally-enforceable-599b69f73aea> accessed on 8 September 2018.

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there may be a lack of consensus ad idem. However, this agreement still binds both A and B. In light of this, the AA-as-tools theory has been considered by many22 23 to be flawed, as through the promulgation of this theory one still cannot determine the consequences of a contract such as the one we have outlined above. This raison d’etre can be applied lock, stock and barrel to smart contracts and the comments in relation to considerations as to whether consent to use the system is tantamount to consent required at law to make this automatically concluded smart contract a binding contract, resurfaces once more24.

4. The Risk Associated with Smart Contracts The application of autonomous technologies entails a different type of risk depending on the technology being adopted, as there are a number of technologies which can be considered to be easily predictable and thus safe when carrying out functions, such as smart contracts with their pre-programmed terms and conditions. When defining risk, the author Frank Knight25 holds that there are two types of risk: proper risk and proper uncertainty. Proper risk refers to the risks which are measurable and could be foreseen, whereas proper uncertainty refers to risks which are not easily quantifiable. When it comes to determining risks for advanced technologies, it is difficult for one to ensure that all the risks have been covered. This was the same issue that had developed in the 1950s with the proliferation of nuclear power reactors. Whereas nuclear engineers could safely determine what the obvious risks could be, the science behind nuclear technology was so new that there was no concretely established methodology to determine what the probabilities were for such risks to materialise. Hence, nowadays, experts do not attempt 22

Pagallo U., The Laws of Robots - Crimes, Contracts, and Torts (1st edn, Springer 2013) 99.

Allgrove B. D., Legal Personality for Artificial Intellects: Pragmatic Solution or Science Fiction? (MPhil thesis, University of Oxford 2004) p. 13. 24

Refer to subtitle The Requirements of Consent.

Knight F., Risk, Uncertainty and Profit (Reprint of 1st edn, Sentry Press 1957).

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to determine the probability of an accident occurring, as they prefer to test the system for weaknesses instead. This is especially relevant when risks cannot be quantified due to certain reactions to humanmachine interfaces which cannot be determined. Programmers and engineers have an expression - the ghost in the machine - which refers to unexpected outcomes caused by low-level interactions between machine code and hardware that causes unexpected outcomes, such as a processor skipping an instruction every 10,000 CPU-cycles.26 This possibility of a ghost in the machine for the implementation of smart contracts to execute transactions between parties is of particular importance when one is to compare smart contracts with traditional contracts. Can software code be considered law? When executing traditional contracts, parties and legal professionals do not look solely at the written word of the terms but would take the spirit of the law into account when determining the application of the terms. Smart contracts have strict protocols, if X happens then Y, there would be no room for the code to interpret the instructions in a way a human lawyer would. Thus, if the protocol results in the contents of an entire bank account being transferred to another person, the smart contract protocol is not going to stop and think whether this is actually what is intended. If the smart contract experiences such bugs or failures in the systems, this may have catastrophic financial outcomes to those nodes involved and to the system itself. One of the major advantages of deploying smart contracts in a blockchain environment is the immutable nature of smart contracts, meaning that once a smart contract is deployed onto a blockchain it becomes almost impossible to modify it. There would be options to kill or terminate the protocol surrounding the smart contract, however this in itself would lead to calamitous consequences to the historical records of blockchain itself and to those nodes involved in the blockchain. Thus, any errors or bugs within smart contracts or even changes in the agreed terms 26

Beckman P, The ghost in the machine: observing the effects of kernel operation on parallel application performance Proceedings of the of the 2007 ACM/IEEE conference on Supercomputing, Nevada, November 10- 16, 2007, <http://www.sc07.supercomputing.org/schedule/pdf/ pap403.pdf> accessed 19 May 2016.

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between the nodes, cannot be modified resulting in any vulnerabilities that may exist to be exploited. This risk for the use of smart contracts was highlighted in various cases of innovative hackers exploiting weaknesses in the smart contracts. The most infamous case being the hack attack on the Decentralised Autonomous Organisation (DAO) based on Ethereum Blockchain, which was launched on the 30th of April 2016. By midMay 2016, over $150 million in Ether were raised during a funding period for the DAO. On the 18th of June 2016, an innovative hacker noticed a ghost-in-the-machine in the DAO and managed to siphon off 3.6 million ether (equivalent to $60 million) into a child DAO with the same structure resulting in a 35% decrease in the value of Ether.27 Since then various other successful hacks or disruptions were reported in distributed ledger technologies based on smart contracts such as the loss of $30 million worth of Ether tokens in 201728 and the freezing of US$280 million worth of cryptocurrencies following the breach of a multi-signature wallet based on smart contracts. 29 In such context one would need to investigate who is responsible in cases where smart contracts fail.

5. Can our law regulate liability for smart contracts? Can software be enforced in a court of law? Who is responsible for an error in the smart contract which causes damages to individuals? One may argue that upon entering into the blockchain as node, it is the responsibility of each node to review the smart contract which is generally an open-source code, to ensure that the terms contained 27 Siegel, D. (2016). Understanding The DAO Attack - CoinDesk. [online] CoinDesk. Available at: <https://www.coindesk.com/understanding-dao-hack-journalists/> Accessed 30 Aug. 2018. 28

Zhao, W. (2017). $30 Million: Ether Reported Stolen Due to Parity Wallet Breach - CoinDesk. [online] CoinDesk. Available at: <https://www.coindesk.com/30-million-ether-reported-stolen-parity-wallet-breach/> Accessed 30 Aug 2018. 29

Aventinus, C. (2017). Parity Multisig Wallet Hacked, or How Come?. [online] Cointelegraph. Available at: <https://cointelegraph.com/news/parity-multisig-wallet-hacked-or-how-come> accessed 30 Aug 2018.

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therein are agreeable and that there are no errors in the smart contract itself that would lead to manifest prejudice on the rights of the node. Another may argue that liability would lie with the programmer of the smart contract who failed to ensure the security of the protocol before deploying it onto a blockchain. There is no clear answer as to who would be responsible in this scenario and no clear answer can be provided until such matters are legislated or decided upon in a court of law. There are a number of possibilities already present within Maltese law which could be utilised to compensate for damage caused by smart contracts and other autonomous technologies. At the same time, the limitations in the existing remedies should lead us to seek novel solutions. Should autonomous technologies be given legal personhood, similarly to the one given to corporations and other organised entities ? Smart contracts are capable of producing rights and obligations on behalf of humans through their execution; should they therefore have their behaviour regulated within the framework of mandate law ? Should the current provisions regulating tort liability apply in cases where a third party is injured through the deployment of smart contract? If so, how? Although one may initially come to the conclusion that the natural solution to deal with this kind of damage is to apply a strict product liability regime, this may not necessarily cater for all possible scenarios where damage is caused by the smart contract. Product liability may be applied in such cases if the damage caused is the result of a defect at manufacturing or programming stage. If the damage is caused by conclusion of the smart contract that could not have been foreseen at its inception, product liability cannot be applied. Moreover, product liability only caters for damages caused to the consumer who has purchased the product and not for damages that may be caused to third parties. Should the smart contract be perceived as an agent conducting business in the name of his principal whilst artificial agents carry out the same functions as agents or mandataries under civil law, these AAs cannot be deemed to be agents under the current legal regime, as that 357

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title is only reserved for legal persons who have rights and obligations. This brings us to another potential solution in determining how liability could be assigned for technologies which act in an automatic and somewhat autonomous manner: the possibility of granting technology itself a level of legal personhood.30 The possibility of attributing a legal personality to technology, similar to the legal personality applied to companies is, it is argued, a viable and reasonable solution to ease the process of suing the correct person for damages that may be caused through the execution of smart contract. The application of personhood on technologies such as smart contracts would place the owner, the user and the programmer of the smart contract at the same level as that of directors and shareholders of the company. While the creation of such a legal personhood may make the victim’s life easier since he or she could simply sue the AI or DLT itself, the persons who can be held liable under this system are likely to be the same as those who could be held liable under tort law, product liability and contract law, i.e. the programmer, the manufacturer and the user or the owner. It would then be left up to the individual members who represent that AI or DLT to seek indemnity from other members if they feel aggrieved by the allocation of responsibility as determined by the Court – a concept that is already found in Article 1051(1) of the Civil Code. The application of a legal personhood to certain technologies would also facilitate the Court’s work when a case concerning such damage emerges, as it could provide the victim of damages with a clear and speedy remedy.31

6. Conclusion Whilst prima facie smart contracts seem not to fulfil the requisites of a contract under our law, as seen above, the discussion is multifaceted and gives rise to different interpretations. 30

Micallef, T. (2016). Civil Responsibility for Damage Caused By Artificial Intelligence. Doctorate of Laws. University of Malta.

Ibid 37.

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Smart contracts may well be a medium, a tool, a computer protocol or an arrangement used for the performance of a contract happening outside the system or in the minds of the parties thereto and thereafter manifested through the actions of the parties on the computer protocol. On the other hand, smart contracts may indeed be contracts being concluded automatically in furtherance of the previous consent of the parties to the terms and conditions of the protocol and its workings. The question here is: is the smart contract a contract in its own nature or merely the performance of the contract of the parties to use the computer protocol operating the smart contract? In either case, what seems to be definite is the enforceability linked to smart contracts – an aspect now enshrined in our law. The Virtual Financial Assets Act, 2018, whilst defining a smart contract as ‘a computer protocol or an arrangement’ provides that it is enforceable by computer code and ‘by ordinary legal methods’ or a mixture of both. In the context of the implications of our civil law in relation to smart contracts, this article may very well be only scratching the surface. Should smart contracts be considered as contracts, other matters for evaluation and analysis include the role of the element of good faith underpinning our contract law in the context of DLTs, how to determine if a contract is unenforceable due to duress for example, how to deal with illegal contracts such as a contract having an illegal object or against public policy, how to revoke or annul a smart contract considering their general irrevocability nature and how will a smart contract recognise a force majeure situation. Whilst Malta enacted its law regulating DLTs, the pleasure of looking into the repercussion of this on traditional law is yet to come!

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The Virtual Financial Assets Regime Regulating the Future Economy Dr. Cherise Abela Grech

Dr Cherise Abela Grech is a senior associate at GTG Advocates. She regularly advises on virtual currencies and distributed ledger technologies, including in respect of security token offerings, virtual currencies-related activities requiring investment services licensing and investment funds investing in virtual currencies. Her main areas of practice are corporate and financial services law, blockchain and DLTs and DLT Assets/Cryptocurrencies. A member of the Chamber of Advocates, Dr Abela Grech holds a Doctor of Laws degree awarded by the University of Malta and has successfully read for a Masters in financial services at the same institution, where she focused her thesis on exchange-traded funds and the growth opportunities for these types of structures in the Maltese investment funds industry. She also possesses a Foundation Certificate in trusts law and management, and lectures on innovative technology services and arrangements.

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1. Introduction

alta is often being touted as the ‘Blockchain Island’ and as being ‘crypto-friendly’, attracting a lot of interest from the Distributed Ledger Technologies (DLT) and Cryptocurrencies sphere for its legislation and rules. Blockchain is hailed as revolutionary in the way business is conducted and Malta’s ambitious plan, is to be a leader in this new modern era. In September 2017, the Maltese Government set up a Blockchain Taskforce in order to help create and implement a National Blockchain Strategy, aimed at materialising the opportunities of DLT. This strategy eventually resulted in the publication of three new laws relevant to the sector: the Virtual Financial Assets Act (the VFA Act);1 the Malta Digital Innovation Authority Act;2 and the Innovative Technology Arrangements and Services Act,3 all published in 2018. The VFA Act entered into force on 1st November 2018. These three Acts have been supplemented by the implementation of the VFA Regulations, the issue of specific Rulebooks by the Malta Financial Services Authority (MFSA) and other sector specific guidelines by the Financial Intelligence Analysis Unit (FIAU), the Malta Gaming Authority (MGA) and the Commissioner for Revenue. Malta was thus the first country to create a comprehensive legal framework that aimed to cover the different facets of the DLTs and Cryptocurrencies sphere, providing legal clarity for the operators but also investor protection for those interested in investing in cryptocurrencies and related businesses.

Chapter 590 of the Laws of Malta.

Chapter 591 of the Laws of Malta.

Chapter 592 of the Laws of Malta.

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2. The VFA Act – what does it regulate? The lack of proper regulation in most countries has unfortunately allowed cryptocurrencies to be used for criminal or illicit activities. The Silk Road case is a primary example of a large-scale money laundering case involving Bitcoin.4 The Silk Road website was an e-commerce platform operated by Ross William Ulbricht, who was known by his username ‘Dread Pirate Roberts’. The platform operated as an underground marketplace for illicit drugs and other substances, and other types of criminal activities such as malicious hacking software, forged documents and assassin-hiring services. Users accessing the platform were anonymised through the use of the Tor browser which is capable of hiding the IP addresses of its users. Bitcoin was used as a source of payment on the platform to ensure further anonymity, and the website became popular among drug dealers and other criminals because the use of cryptocurrencies ensured that transactions were faster and safer than by using traditional online payment methods. 5 However, Bitcoin in itself is not intrinsically illegal and has its own legitimate uses. The Maltese VFA regime recognises this, and has sought to regulate rather than shun the phenomenon of cryptocurrencies.The VFA Act thus creates a comprehensive legal framework covering the role and responsibilities of different parties in this sphere. The Act aims to establish a solid legal framework which is not only intended to attract legitimate operators seeking accreditation and transparency, but also to create stability in a sector which has in the past months been marked by hype and in certain instances, abuse. The VFA Act covers the role of the VFA Agent, the VFA Issuer in an IVFAO and that of VFA Service Providers. These shall be analysed in further detail hereunder. 4 Sealed Complaint 13 MAG 2328, United States of America vs Ross William Ulbricht, aka “Dread Pirate Roberts”, aka “DPR”, aka “Silk Road”. 5 Jonathan Galea, The Effect of Bitcoin on Money Laundering Law (University of Malta, Doctor of Laws thesis, May 2015).

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3. Virtual Financial Assets The concept of Virtual Financial Assets (VFAs) under Maltese law refers to any form of digital medium recordation used as a digital medium of exchange, unit of account or store of value that excludes electronic money, financial instruments and virtual tokens.6 In order to determine the legal framework applicable to a DLT Asset (more commonly referred to as a coin or token), the MFSA has created a Financial Instrument Test to establish whether the DLT Asset should be classified as a virtual token, a financial instrument, electronic money or a VFA. The concept of a virtual token, more commonly referred to as a utility token, is limited in its nature under the VFA Act, as it refers to a DLT Asset whose utility, value or application is restricted solely to the acquisition of goods or services, either solely within the DLT Platform on or in relation to which it was issued or within a limited network of DLT Platforms.7 The legal definition in the Act restricts the use of a Virtual Token to buy goods or services and prohibits it from being traded on a cryptocurrency exchange. Indeed, if the DLT Asset is classified as a virtual token but it is or can be converted into another DLT Asset type, it is to be treated as the DLT Asset type into which it is or may be converted. On the other hand, coins and tokens are considered to be financial instruments if they qualify under the definition provided by MiFID8 which includes: transferable securities; money market instruments; units in collective investment schemes; financial derivative instruments, which include a number of financial instruments; and emission allowances consisting of units recognised for compliance with the requirements of Directive 2003/87/EC (Emissions Trading Scheme). For a DLT Asset to be deemed to be electronic money it must rep6

Virtual Financial Assets Act, Chapter 590 of the Laws of Malta.

Ibid.

Markets in Financial Instruments Directive (2004/39/EC).

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resent:

electronically, including magnetically, stored monetary value as represented by a claim on the issuer which is issued on receipt of funds for the purpose of making payment transactions as defined in paragraph 1 of the Second Schedule [to the Financial Institutions Act] and which is accepted by a natural or legal person other than the financial institutions that issued the electronic money9 The Financial Instrument Test works by exclusion to determine the legal nature of the DLT Asset. Thus, if a DLT Asset is not deemed to be a Virtual Token, it is not a Financial Instrument and it is neither Electronic Money, then it is deemed to be a VFA. The VFA Act regulates the issue of DLT Assets that qualify as VFAs and the provision of services in relation to VFAs. Where a DLT Asset qualifies as a financial instrument or as electronic money, it is regulated by the Investment Services Act10 and the Financial Institutions Act11 respectively. On the other hand, where a DLT Asset qualifies as a virtual token, it is deemed to be unregulated; virtual tokens were deemed to pose a low risk to investors in view of their limited nature and their impediment from being traded on exchanges.

4. Initial Virtual Financial Asset Offerings One primary element of the Maltese legal framework is the regulation of Initial Coin Offerings (ICOs) which are termed as Initial Virtual Financial Asset Offerings (IVFAOs). The concept of an ICO can be compared to a certain extent to that of an Initial Public Offering (IPO). Put simply, an ICO is a fundraising mechanism where the issuer sells the underlying crypto token or coin in exchange for 9

Financial Institutions Act, Chapter 376 of the Laws of Malta.

Chapter 370 of the Laws of Malta.

Chapter 376 of the Laws of Malta.

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other cryptocurrencies or fiat money (a term which generally refers to traditional currencies like the Euro or the United States Dollar). The VFA Act in turn regulates those Issuers conducting an ICO for a VFA in or from Malta. The lack of regulation worldwide has allowed the market to be infiltrated by fraudulent platforms allowing seemingly legitimate entrepreneurs seeking crowdfunding through an ICO to accumulate millions of investor funds only to then disappear with that money and leaving bona fide investors in the dark. As the cryptocurrency frenzy took the world by storm particularly in 2017 and Bitcoin reached unprecedented prices towards the end of 2017, this brought with it an advent of unassuming investors placing their money not only on the value of cryptocurrencies but also by funding ICOs. The Dogecoin, which is a cryptocurrency featuring the Shiba Inu dog from the “Doge” Internet meme as its logo, started off as a “joke currency” in 2013 but went on to reach a $1 billion market cap in January 2018. More than $5 billion were reported to have been raised in ICOs in 2017; more than 10% of these funds were deemed to have been lost or stolen in hacker attacks. Furthermore, Tokendata has estimated that 46% of the ICOs held in 2017 have already failed.12 Numerous media outlets claim that it comes as no surprise that many of these ICOs were doomed to fail. Nevertheless, this news would have come as a shock to all those investors who cumulatively invested millions into these hopeful ventures only to then find that their investment was not secured as much as they assumed it would be. The VFA Act is intended to address this need for regulation and investor protection. Any person wishing to offer a VFA to the public in or from within Malta, or wishing to apply for the VFA’s admission to trading on a DLT Exchange must draw up a Whitepaper in line with the Act and register it with the MFSA, ten working days before the date of its circulation in any way whatsoever. The Whitepaper must 12 Kai Sedgwick, ‘46% of Last Year’s ICOs Have Failed Already (Bitcoin.com, 23 February 2018) <https://news.bitcoin.com/46-last-years-icos-failed-already/> accessed 24 September 2018.

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be registered with the MFSA prior to issuing an offer to the public. This therefore means that where the VFA is offered to specific private individuals such as in a pre-ICO stage or a private sale, this does not qualify as an offer to the public. The Whitepaper in the case of ICOs is similar in concept to a Prospectus when issuing an IPO. Prior to conducting an ICO in or from Malta, the Issuer must conduct the Financial Instrument Test to ensure that the DLT asset is in fact a VFA and that therefore the ICO qualifies as an IVFAO. Where the DLT Asset qualifies as a financial instrument, then the Issuer must consider his obligations under the Prospectus Directive.13 The Issuer must be a legal person managed by at least two individuals to ensure the principle of dual control. Issuers are also required to: i.

conduct their business with honesty and integrity;

ii. communicate with investors in a fair, clear and non-misleading manner; iii. conduct their business with due skill, care and diligence; iv. identify and manage any conflict of interest that may arise; v. have effective arrangements in place for the protection of investors’ funds; vi. have effective administrative arrangements; and vii. maintain all of their systems and security access protocols to appropriate international standards. The Whitepaper must describe the IVFAO project in simple and informative terms and must be registered with the MFSA, as the competent authority. The MFSA may, in certain specific cases, prohibit or 13

Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC.

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suspend an IVFAO. The Whitepaper issued for an IVFAO must include information which, according to the particular nature of the Issuer and of the VFA offered to the public, is necessary to enable investors to make an informed assessment of the prospects of the Issuer, the proposed project and of the features of the VFA. The Whitepaper may not contain a condition requiring or binding an investor to waive compliance with any requirement under the VFA Act or purporting to affect the investor with notice of any contract, document or matter not specifically referred to in the Whitepaper. Furthermore, the VFA Agent is required to confirm that the Whitepaper complies with the requirements of the Act. Before issuing an IVFAO, the Issuer must also provide a copy of the audited annual accounts for the last three financial years and a confirmation by its Systems Auditor that its technology arrangement complies with the qualitative standards and guidelines issued by the Malta Digital Innovation Authority (MDIA). The System Auditor must also certify that the Issuer’s Smart Contract will deliver what is set out in the Whitepaper. The VFA Act also regulates the advertisement of any Initial VFA Offering. These must be clearly identifiable as such and may not include inaccurate or misleading information. The information must also be consistent with the required contents of the Whitepaper. The requirements in the Act aim to enhance the Whitepaper’s objective of offering clarity to potential investors on the proposed project, while instilling trust and legitimacy in the minds of investors to fund it. In view of the risk that investing in ICOs poses, particularly to certain unassuming retail investors, the MFSA has imposed a limit on the amount that retail investors may invest in a single ICO. Issuers are therefore bound to ensure that an investor does not invest more than €5,000 in their Initial VFA Offering in a 12-month period. When originally proposed, this rule prompted quite a backlash from poten367

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tial Issuers in view of the fact that it referred to all types of investors and was thus deemed to be too restrictive. In the finalised version of its Rulebook, the MFSA qualified this restriction to apply solely to retail investors who are generally deemed to require most protection. Thus, experienced investors are not limited by this rule and have no capping on the amount of their investment in a single IVFAO. This is positive news for Issuers who seek to obtain funding from Angel Investors to possibly fund the whole of their project. Furthermore, the Issuer must also ensure that the Whitepaper contains a detailed description of the past and future milestones including any deliverable in any private placement and the effect of the public offering on the investors. The Issuer is also required to provide investors with regular and comprehensive updates on the progress being achieved with respect to the milestones set out in the Whitepaper to enable the investor to assess the deliverables in the Whitepaper. Such updates are to be made by means of public announcements. Where the milestones are not being met, the Issuer is required to issue public announcements in this regard, together with a detailed explanation therefor and the efforts being made to meet such milestones. In the event that these delays potentially affect the risk parameters of the project, the Issuer is required to update the Whitepaper accordingly and to inform the investors of their right to opt out of the investment.

5. VFA Services The provision of services related to VFAs is also regulated under the Act. Any person providing or holding itself out as providing a VFA Service in or from within Malta, must be in possession of a valid licence under the VFA Act.14 The Act sets out a list of the different services that qualify as VFA Services and are thus licensable: 14

Article 13, VFA Act [Cap 590 of the Laws of Malta].

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Reception and Transmission of orders

Execution of orders on behalf of other persons

Dealing on own account

Portfolio Management

Custodian or Nominee Services

Investment Advice

Placing of virtual financial assets

The operation of a VFA Exchange

The list of services clearly emulates the services found in the First Schedule to the Investment Services Act.15 Thus, crypto brokers, wallet providers, custodians of VFAs and market makers offering services related to VFAs all require a licence to be issued by the MFSA as the competent regulatory authority. Crypto-exchanges, referred to as VFA exchanges, have also been classified as a VFA service and are thus deemed to be a licensable activity. This will therefore regulate those exchanges converting fiat money to cryptocurrencies qualifying as VFAs and vice-versa, as well as those exchanges offering VFA to VFA pairings. The VFA Regulations set out the Licence Categories for VFA Services. These are modelled very similarly to the licensing categories set out in the Investment Services Act, and under the VFA Act, services are classified under four different classes. Similar to the categories under the Investment Services Act, Class 1 is limited to the receipt and transmission of orders, the provision of investment advice and placing of VFAs; it excludes the holding and controlling of clients’ money and VFAs. The Class 2 licence covers all types of VFA services with the exclusion of operating a VFA Exchange and dealing on own account; 15

Chapter 370 of the Laws of Malta.

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a Class 2 licence is thus necessary to act as a custodian for VFAs. The Class 3 licence on the other hand, is similar to the Class 2 but provides the possibility of dealing on own account. Finally, the Class 4 licence cumulatively includes all types of VFA Services. In the first draft of the VFA Regulations, the Class 4 licence was intended to serve only those operating a VFA Exchange and those holding or controlling clients’ money, VFAs, and/or private cryptographic keys as well as custody or nominee services solely in relation to the operation and activities of the VFA Exchange. Thus, the previous classification of the Class 4 licence was purely intended to cover the services intrinsically required to operate as a VFA Exchange, including both the operation of the exchange platform as well as the custody of fiat money and VFAs which are generally offered by such platforms to ensure a smoother user experience. The cumulative and thus widened approach to this Class category will allow VFA Exchanges to offer an additional range of services under the same licence and thus avoiding the need of additional licences and licensing costs. Nevertheless, while the amended Class 4 categorisation includes all types of VFA Services, undoubtedly the MFSA will require a certain element of segregation between the different activities offered by the licensed entity. In order to abide by the VFA Act, licensed entities will need to always ensure that the services are being provided in relation to DLT Assets qualifying as VFAs. The Financial Instrument Test is therefore crucial in this determination and must be run particularly when onboarding any new DLT Asset to the platform. The VFA Act in fact provides that where a service provider, for example a VFA Exchange, determines that a DLT Asset it wished to admit to trading is a financial instrument, it may not admit this DLT Asset to trading. A person applying for a VFA Services licence must limit its objects to acting as a VFA Services Provider (offering one or more of the services outlined above) and carrying on activities that are ancillary or incidental thereto. The Act further states that a purpose or object referring to any activity that requires any kind of au370

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thorisation whatsoever by the MFSA under any Maltese law, other than under the VFA Act, would be deemed to be incompatible with the services of a VFA Service Provider. This therefore means that a VFA Services Provider may not operate both as an entity licensed under the Investment Services Act or licensed by the MGA as well as being licensed under the VFA Act. Instead, if an entity wishes to provide the trading of security tokens, which are generally deemed to be financial instruments under MiFID, it must set up a separate entity that would in turn be licensed under traditional financial services as an exchange for financial instruments such as a Multilateral Trading Facility (MTF). The VFA Regulations set out a number of exemptions from the requirement to obtain a licence under the Act. Persons who are trading in VFAs on their own account are not required to obtain a VFA Services Licence if they are solely conducting that activity and they are neither market makers nor dealing on own account when executing client orders. This exemption however is not automatically operative and is subject to the MFSA’s written determination as to the applicability of that exemption. It was deemed that applying for this exemption would be very impractical for individual investors who may be dealing in VFAs on own account. In a Feedback Statement to the Consultation Process on the VFA Regulations, the MFSA clarified that in such cases, individual investors dealing on own account would not be required to apply for this exemption from the Authority as they could be classified as persons acting as managers of their own portfolio, including VFAs, belonging solely to them and to no other person, provided that this portfolio was not in the interest of other beneficiaries and that it did not constitute a collective investment scheme. The proposed VFA Regulations also exempt custodians of collective investment schemes from the requirement of a VFA Services Licence solely for the purpose of providing the custody of VFAs to a collective investment scheme. A similar exemption applies to investment managers of collective investment schemes with regards to offering portfolio management and investment advice under the VFA Act in this limited case. These service providers are required to notify 371

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the MFSA prior to acting on the basis of this exemption. In order to apply for a VFA Services licence, the applicant must apply with the MFSA through a VFA Agent. Prior to granting the licence, the MFSA must be satisfied that the applicant is a fit and proper person. The fitness and properness test is applied to the applicant itself, whether a natural person or a legal person, to verify the integrity, competence and solvency of the applicant. Where the applicant is a legal person, this test is also applied to all the qualifying shareholders, the directors, the Money Laundering Reporting Officer and the Compliance Officer. It is important to note that the VFA Services licence is not automatically passportable to other EU Member States. Unlike the licensing regime covering traditional financial services licences, the VFA Framework is a Maltese-borne regime. In practice, it is generally held that a VFA Service Provider may offer his services in any jurisdiction, subject to any limitations or licensing requirements set out in that jurisdiction. The provision of such services in jurisdictions outside Malta is therefore subject to the legislative and regulatory frameworks of those jurisdictions, as well as the prior notification to the MFSA by the VFA Service Provider of its intention to provide its service/s in such jurisdictions.

6. Collective Investment Schemes Collective Investment Schemes (CIS) wishing to invest in VFAs fall outside the scope of the VFA Framework, as these are still regulated under the traditional financial services framework. In view of the risk posed by cryptocurrencies, the MFSA has limited the investment by CIS in VFAs to Professional Investor Funds (PIFs) only. This considerably limits the individuals that can invest in such funds since investment in PIFs is limited to Qualifying Investors with a minimum investment of €100,000. The MFSA published supplementary conditions applicable to PIFs 372

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investing in Virtual Currencies in January 2018, prior to the coming into force of the VFA Act. The rules aim at providing a robust regulatory framework that seeks to ensure investor protection, market integrity and financial soundness with regard to CISs that invest in DLT assets. In order to achieve these objectives, the supplementary conditions introduce specific requirements on competence, risk warnings, quality assessment, risk management and valuation, both during the authorisation stage as well as on an ongoing basis. These Supplementary Conditions are expected to be amended to refer to PIFs investing in Virtual Financial Assets rather than Virtual Currencies, which in itself, is a term that is not defined under the Maltese regime. In view of their limited nature, particularly the fact that they are limited to the DLT platform on which they operate or a network of DLT platforms, CIS may not invest in virtual tokens which inherently would have no value outside of their DLT platform. On the other hand, where the DLT Asset qualifies as a Financial Instrument, it is understood that since traditional financial services rules apply, the Supplementary Conditions on PIFs investing in Virtual Currencies do not apply. In this case therefore, there is no specific restriction on the type of CIS vehicle that can invest in for example, Security Tokens. The Authority has also indicated that it is considering whether these supplementary conditions for PIFs investing in VFAs should also be extended to apply to Alternative Investment Funds (AIFs) and Notified Alternative Investment Funds (NAIFs).

7. The role of the VFA Agent Issuers of VFAs and applicants for VFA Services Licences are required to appoint a VFA Agent to advise them on their responsibilities and obligations under the Act and to act as a liaison between them and the MFSA. The VFA Agent’s role is an onerous one as it must ensure that the applicant has satisfied all the requirements specified by the Act as well as those set out in the MFSA’s rules, while also ensuring that the applicant is a fit and proper person. These obligations 373

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have been set out more clearly in the MFSA Rulebook covering VFA Agents. The VFA Agent must be a person established in Malta or in another jurisdiction who is authorised to carry on the profession of advocate, accountant or auditor, a firm of such professionals or a corporate services provider, or a legal person that is wholly owned or controlled by such persons. The Act also provides that any other class of persons holding authorisations, qualifications and, or experience deemed by the MFSA as possessing suitable expertise to exercise the functions of a VFA Agent may also be so registered. Put simply, the VFA Agent’s role is to: (i) generally advise and guide his client; (ii) perform a fitness and properness assessment prior to onboarding a client; (iii) act as a liaison between the MFSA and his client; and (iv) cooperate with the MFSA, where required. VFA Agents must be authorised to act as such by the MFSA and must abide by the ongoing obligations set out in the Rules. VFA Agents may seek to be registered with the MFSA either to assist Issuers seeking to conduct an IVFAO under Article 7 of the Act, or to assist applicants seeking a licence as VFA Service Providers under Article 14 of the Act, or being registered to offer services in relation to both Article 7 and Article 14. When assisting Issuers, the VFA Agent is required to conduct the fitness and properness assessment on the client. The MFSA’s role in this case is limited to registering the Whitepaper and not to assess the Issuer himself. On the other hand, in the case of applicants for a VFA Services licence, the VFA Agent is also required to conduct the fitness and properness assessment which will then be supplemented by the MFSA’s own due diligence checks at application stage. VFA Agents are also required to ensure that the Issuer has provided investors with a roadmap which clearly establishes and sets out milestones for the IVFAO. The VFA Agent must therefore check whether the Issuer is meeting the milestones communicated to investors and whether the Issuer is making the necessary public disclosures. In the 374

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event that these milestones are not being met, the VFA Agent must inform the MFSA accordingly. Thus, it is clear that the role of the VFA Agent when assisting Issuers of IVFAOs is a far more onerous one and the necessary systems need to be in place to duly conduct the necessary checks and assessments on clients. In view of the responsibility placed on VFA Agents, following numerous consultations, the MFSA increased the capital requirement that needs to be satisfied by persons interested in being registered to act as VFA Agents. Being registered as a VFA Agent in terms of Article 7 of the Act (which refers to Issuers) in fact requires the same capital requirements as a VFA Agent registered in terms of both Article 7 and Article 14. Furthermore, the VFA Agent is required to appoint 3 designated persons that need to satisfy the following criteria: i.

Having a certain degree of experience and educational background in relation to the VFA Framework, Fintech in general as well as traditional financial services;

ii. Having passed a written examination as posed by the MFSA; iii. Having passed a viva voce examination before the MFSA assessing knowledge on the VFA Framework, the role of the VFA Agent and different models that exist in this field. One of the Designated Persons must also take up the role as a director within the company and the MLRO must also be a designated person. Since the MLRO needs to be a person in a senior position and possessing independence of judgment, the MLRO may also be one of the director within the company.

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8. AML The 5th AML Directive, which is expected to be implemented in the individual Member States by January 2020. recognised the importance of establishing Anti-Money Laundering provisions in the field of cryptocurrencies. This Directive is thus the EU’s first formal attempt to regulate cryptocurrencies and cryptocurrency related activities. It mainly regulates Crypto-to-Fiat Virtual Currency Exchanges and Custodian Wallet Providers. These two types of service providers will thus need to be registered in their Member State while applying customer due diligence controls and reporting any Suspicious Transactions. The Directive also formally defined the concept of Virtual Currencies as:

a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency, and does not possess a legal status of currency or money, but is accepted by natural or legal persons, as a means of exchange, and which can be transferred, stored and traded electronically16 The definition does manage to adequately capture the salient elements of virtual currencies in that they are a digital representation of value that is decentralised and thus not issued or guaranteed by a central bank or a public authority, which is not attached to fiat currencies, does not possess the same legal status as fiat currencies and are electronically transferable, storable and tradeable. The main point of contention with this definition is that it requires virtual currencies to be used as a means of exchange; this means that it should be used to facilitate the sale or purchase of goods between parties and to represent a standard of value accepted between parties. The Maltese definition of a VFA does not limit the concept to merely being a medium of exchange and one can therefore consider the definition set 16

Directive (EU) 2018/843 of the European Parliament, The 5th Anti-Money Laundering Directive.

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in the VFA Act as more encompassing of the virtual currencies reality. However, despite the positive step in the right direction, the 5th AML Directive can be found to be very lacking in that it does not regulate all the different operators in this sphere. Important key players that have been left out include Crypto-to-Crypto Exchanges, Trading Platforms, Coin Offerors, Hardware and Software Custody Wallet Providers as well as Miners. The Maltese VFA Act thus sought to go a step further by regulating different persons that play a relevant role in this field. Thus, VFA Agents, Issuers of IVFAOs as well as all VFA Service Providers are deemed to be subject persons under the Prevention of Money Laundering and Funding of Terrorism Regulations.17 At time of writing, the FIAU has issued a set of Consultation Sector-Specific Procedures which are meant to supplement the FIAU’s implementing procedures. Acting as ‘gatekeepers’, VFA Agents are deemed to be the first line of defence and are therefore required to have the necessary systems and controls to comply with Anti-Money Laundering/Combating the Financing of Terrorism (AML/ CFT) obligations. A VFA Agent is expected to have robust Know Your Client (KYC) systems and controls in place to address and mitigate the money laundering/funding of terrorism (ML/FT) risks pertaining to their specific business model. The MFSA has emphasised that there is no ‘one-sizefits-all’ approach and VFA Agents must therefore evaluate their individual risks which primarily depend on the type of registration they obtain from the MFSA.18 Thus, traditional Customer Due Diligence and Enhanced Due Diligence as set out in the FIAU Implementing Procedures needs to be carried out as well as Source of Wealth and Source of Funds checks. The latter should also take into consideration whether the client’s source includes DLT assets, for example Bitcoin, in which case the VFA Agent would need to have appropriate KYC tools in place to verify this type of source as well. 17

S.L. 373.01 of the Laws of Malta.

Whether they are registered under Article 7, Article 14 or both.

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Issuers on the other hand must also identify and manage their risks while continuously monitoring compliance with Cyber Security and Record Keeping requirements. Issuers are in fact bound to submit a Certificate of Compliance annually to the MFSA that confirms whether all local AML/CFT obligations have been satisfied. An AML/ CFT report is also to be prepared by an independent auditor engaged by the Issuer and submitted annually. Issuers are deemed to be subject persons when issuing VFAs (and thus conducting an IVFAO) and when issuing DLT Assets that qualify as financial instruments and electronic money (and thus being classified as subject persons by virtue of their regulation under financial services legislation). Where an Issuer issues a virtual token, he is not considered to be a subject person because in view of their limited nature, virtual tokens are not deemed to pose a large risk from a ML/FT point of view. VFA Service Providers in turn must set out a policy on the VFAs and the VFA Services offered or provided in line with their risk tolerance levels. Just like Issuers, they are bound to submit an annual Compliance Report to the MFSA. Service Providers are also required to consider a number of elements prior to admitting a VFA to trading on their platform: a. The Issuer’s AML/CFT procedures and his cybersecurity systems and controls; b. Whether the VFA has any inbuilt anonymization functions; c. Whether the VFA has used or was used with any smurfing technology, mixers or has been traded or is being traded on any darknet marketplace/s. VFA Service providers cannot admit a VFA to trading if it has inbuilt anonymization functions unless the holder of the VFA can be identified.

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9. Transitory Provisions The VFA Act also provided a transitory provision for persons who were already operating in or from within Malta when the Act came into force on the 1st of November 2018. Thus, persons that were set up and trading in or from within Malta before the coming into force of the Act were able to benefit from a grandfathering provision, allowing them to continue to act within the remit of the VFA Act beyond this date prior to obtaining a licence from the MFSA. In the case of VFA Service Providers, they are required to apply for the licence or authorisation from the MFSA within 12 months from the coming into force of the Act, i.e. by the 31st of October 2019. In the case of Issuers, the transitory provision applied to those Issuers who commenced an offering or applied for admission to trading by not earlier than 2 weeks from the coming into force of the Act; in this case Issuers were required to draw up a whitepaper in line with Schedule 1 to the VFA Act and register it with the MFSA within 3 months from the coming into force of the Act. However, it was also deemed to be imperative to offer a further exemption to IVFAOs which fell outside the two-week window stipulated in the Act. The MFSA thus qualified the exemption such that if an Issuer launched an IVFAO prior to two weeks before the coming into force of the VFA Act, it would continue to remain exempt from the requirement to register the Whitepaper with the MFSA if the offering of VFAs ended by the 31st of January 2019. On the other hand, where an offering continued beyond this date, the Issuer would need to draw up and register the Whitepaper with the MFSA in line with the Act by such date. VFA Agents benefiting from the transitory provision were required to apply to be registered with the MFSA within one month from the coming into force of the Act.

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10. Criminal Liability The VFA Act, together with the VFA Regulations and the ancillary MFSA Rulebooks confer the Minister responsible for the regulation of financial services (the Minister) and the MFSA with powers in order to protect investors’ interests while also overseeing the orderly transaction of business, primarily that of Initial VFA Offerings and VFA Service providers. Issuers of VFAs are liable for damages sustained by a person as a direct consequence of such person having bought VFAs, either as part of an Initial VFA Offering by the issuer or on a DLT exchange, on the basis of any false information contained in the whitepaper, website or advertisement. A statement is deemed to be untrue if it is misleading or otherwise inaccurate or inconsistent, either wilfully or in consequence of gross negligence, in the form and context in which it is included. The MFSA may suspend or terminate the trading of a VFA if this is in the interest of the VFA Exchange, investors or the general public. Conversely, to avoid causing significant damage to the investors’ interests or the orderly functioning of the VFA exchange, the exchange may suspend or remove from trading a VFA which no longer complies with the definition of a Virtual Financial Asset or the bye-laws of the VFA exchange. The MFSA may impose unilateral decisions on any Issuer of an Initial VFA Offering, and any VFA Agent or VFA Service Provider. It is thus empowered to: i.

Request information from any person;

ii. Order the review of the determination of a DLT asset and submit this determination to a test; iii. Appoint inspectors to investigate and report on the activities of an issuer, VFA agent or VFA service provider; iv. Order an issuer or service provider to cease operations or 380

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appoint a person to advise him/her, take charge of his/ her assets or even control his/her business; v. Order the suspension or the discontinuation of the trading of a VFA; vi. Impose administrative penalties. Where a VFA licence holder or the secretary, a member of the board of administration or any other person responsible for a licence holder contravenes or fails to comply with any of the licence conditions or he is deemed to be in breach of the VFA Act, regulations or rules, including the failure to cooperate in an investigation, the MFSA may impose an administrative penalty up to €150,000 by notice in writing and without recourse to a court hearing. In the public interest, most decisions made by the competent authority are subject to appeal in front of the Financial Services Tribunal.

11. Tax The Commissioner for Revenue has issued a series of guidelines concerning the taxation of DLT Assets under the Income Tax Act,19 the VAT Act20 and the Duty on Documents and Transfers Act.21 Under these guidelines, the concept of DLT Assets is divided into coins and tokens, the latter being further divided into financial tokens and utility tokens. Reference is also made to the idea of a hybrid token, that is a token having elements of both financial and utility tokens. It is not clear why the Commissioner for Revenue did not choose to classify the concept of a DLT Asset in the same way as it is defined under the VFA Act. The concept of a financial token can be clearly assimilated to that of a financial instrument and in turn security tokens. 19

Chapter 123 of the Laws of Malta.

Chapter 406 of the Laws of Malta.

Chapter 364 of the Laws of Malta.

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The concept of utility tokens on the other hand also clearly refers to the definition of a virtual token and attempts to capture the nature of a VFA which is otherwise not captured under the concept of a coin. It must be seen when implemented in practice, whether this lack of cohesion between the VFA Act and the Tax Guidelines will cause any issues for any local issuers. Under these three tax acts, DLT Assets are to be regulated in the same way as any other transaction, and thus by reference to the nature of the activities, the status of the parties and the specific facts and circumstances of the particular case. Interestingly, the guidelines in relation to the Income Tax Act have clarified that an initial offering of financial tokens is generally intended to raise capital. The proceeds from such issue are thus not to be treated as income of the issuer and the issue of new tokens is not treated as a transfer for the purposes of taxation of capital gains. An initial offering of utility tokens entails an obligation of the issuer to perform a service or to supply goods or benefits to the token holder. Gains or profits realised from the provision of the services or the supply of the goods will in turn represent income. In relation to the payment of Duty on Documents tax, one needs to look at the intrinsic nature and effects of a particular transaction to which the DDTA refers without regard to the apparent title or form. Hence where transfers involve DLT assets that have the same characteristics as “marketable securities” (by virtue of being financial instruments), they are subject to duty in accordance with the applicable provisions of the DDTA. The VAT Guidelines on the other hand make reference to the CJEU Case of Skatterverket vs David Hedqvist,22 where the Court ruled that instruments intended to be used as a means of payment accepted by certain operators must, for VAT purposes, be treated like traditional currencies used as legal tender. Thus, the exemptions applicable to transactions in currency and related services under the VAT Act would likewise apply to “transactions, including negotiation” 22

C-264/14, Skatterverket vs David Hedqvist.

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in cryptocurrencies where these have as their sole purpose to serve as a means of payment as an alternative to legal tender. The exchange of cryptocurrencies for other cryptocurrencies or for fiat money where such exchange constitutes a supply of services for consideration would be covered by said exemptions. In the case of financial tokens, it is critical to see what the investor receives in exchange for such tokens. Where a financial token is issued simply to raise capital, the issue would not give rise to VAT implications in the hands of the issuer. On the other hand, services supplied by exchange platforms to buyers and sellers of financial tokens would have VAT implications. On the other hand, where a utility token issued against consideration carries an obligation to be accepted as consideration or part consideration for a supply of goods or services and where the goods or services to be supplied or the identity of the supplier is known, the token would have the characteristics of a voucher and the consideration paid for a utility token to the issuer is deemed to be gross of VAT due (if any). ICOs do not necessarily constitute a chargeable event for VAT purposes. Where tokens are issued as a means of collecting funds for the development of a future project, this type of transaction could be out of scope of VAT. Where, on the other hand, the tokens issued would give rights to identified goods or services for a specified consideration, a chargeable event for VAT purposes could arise and its proper VAT treatment would have to be examined in that context such as in the case of utility tokens.

12. Conclusion These are exciting times for Malta as we are embracing the proliferation of new and emerging technologies to turn the island into a hub for digital technological innovation. As the MFSA issues new licences under this new legal framework, the opportunities presented by the 383

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VFA regime will continue to unravel and be put to the test. It is hoped that the authorities as well as all the service providers, on all levels, adopt a pragmatic and not overly prescriptive approach to enable, and not stifle, technological innovation.

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Human Rights Law

Detention of asylum seekers in Malta a study of Malta and Strasbourg Jurisprudence Dr. Carla Camilleri

Dr. Carla Camilleri is a Maltese lawyer specialising in European Law and she is Assistant Director at aditus foundation, a voluntary & non-profit organisation established with a mission to monitor, act and report on access to fundamental human rights in Malta. She is also a casual lecturer at the University of Malta in the European & Comparative Law Department and lecturers LL.M students in the EU Area of Freedom, Security and Justice Law. In her work at aditus foundation, Carla carries out advocacy work in the field of migration, LGBTI rights, access to justice and governance issues. In 2018, Carla authored the Compendium of Asylum Jurisprudence, Law and Policy – A Collection of Maltese Asylum Case-Law and Access to Legal Assistance in Malta: Mapping the Availability of Legal Assistance for the Protection of Fundamental Rights in Malta in 2017. Furthermore, in the course of her work, she has publishes a number of reports which include: A Way Forward for a National Integration Policy in Malta - A Report on National Integration Policies in Malta and she acted as research assistant with Neil on MGRM’s Position Paper on Marriage Equality – Advocating the Best Options of Legislating for Same Sex Couples & Families in Malta. She also published a paper on Discrimination on Grounds of Sexual Orientation as part of the project Anti-Discrimination, Inclusion and Equality in Malta coordinated by the European Documentation and Research Centre. In addition, Carla also provides information, advice and legal services to a number of clients in aditus’ Pro Bono Unit in a number of sectors, which include migration and asylum, citizenship, LGBTI rights with a focus on transgender children, anti-discrimination and employment rights.

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1. Introduction ‘... the Court finds it hard to conceive that in a small island like Malta, where escape by sea without endangering one’s life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant’s protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.’1

his article outlines the developments of the legal policy regime that has regulated the detention of asylum-seekers in Malta. The possible avenues to challenge detention will be explained with reference to the relevant jurisprudence from local courts, from 2004 to as recent as 2018. In addition, this article will make reference to the complete body of case-law from the European Court of Human Rights (the ‘ECtHR’) that examined the Maltese detention system to date2.

2. International Instruments regulating restrictions of movement and deprivation of liberty Article 31 (1) of the Geneva Convention3 stipulates that refugees should not be penalized for their illegal entry or stay, and recognises that seeking asylum may require refugees to breach immigration rules in order for them to gain access to a safe territory, especially where regular access is effectively impossible due to restrictive immigration policies, or where there are difficulties procuring travel documentation and permits: 1

Louled Massoud v. Malta, Application No. 24340/08, ECHR 2010, 27 October 2010, paragraph 68.

This article is a summary of Chapter III on Detention of the Compendium of Asylum Jurisprudence, Law and Policy – A Collection of Maltese Case-law, authored by Carla Camilleri, published by aditus foundation in 2018. The full publication is available free of charge from the offices of aditus foundation. 3

Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, referred to in this article as the Geneva Convention.

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‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ The Article further provides that restrictions on movement shall not be applied to such asylum-seekers or refugees other than those which are necessary and, such restrictions shall only be applied until their status is regularised4. Therefore, a straightforward reading of the right to seek asylum, the non-penalisation for irregular entry or stay, the right to liberty and security of person, and freedom of movement, means that the detention of asylum-seekers should be an exceptional measure of last resort, with liberty being the default position5. Any restriction or deprivation of liberty must be in accordance with and authorised by national law in order for it not to be unlawful as well as arbitrary6. Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms7 (hereinafter referred to as the ‘ECHR’) provides for the right to liberty and its aim is to ensure that no one be deprived of that liberty in an arbitrary fashion. Article 5(f)8 4

The Geneva Convention, Article 31:(2) ‘The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.’

UN High Commissioner for Refugees (UNHCR), Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012, <http://www.unhcr.org/publications/legal/505b10ee9/unhcr-detention-guidelines.html> accessed on 5 July 2018.

6 Arbitrariness has been given a broad interpretation to include not only unlawfulness, but also elements of inappropriateness, injustice and lack of predictability. 7

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)

Article 5(f) ‘No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom

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allows for the lawful arrest or detention in an immigration context, however such detention must be compatible with the overall purpose of Article 5, which is to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion. Notwithstanding that Article 5(f) allows for detention, Article 5(4) provides detainees with the right to actively seek an effective remedy to challenge the lawfulness of their detention and states that anyone ‘who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’9

3. Grounds for Detention under Maltese Law The Maltese reception and detention systems were completely overhauled in 2015 with the intention of bringing them in line with European Union law and also as a consequence of a number of ECtHR judgements finding Malta in breach of Article 5 ECHR, on the right to liberty and security of person. The reform led to the removal of automatic and mandatory detention of asylum-seekers entering Malta irregularly or found to be in an irregular situation, the introduction of exhaustive criteria required for detaining asylumseekers, a mandatory system of review of the lawfulness of detention and stronger identification procedures for vulnerable persons. The reception, including detention, of asylum-seekers is regulated by the Reception of Asylum-seekers (Minimum Standards) Regulations (the ‘Reception Regulations’)10. These Regulations were amended as part of the transposition of the recast Reception Conditions

action is being taken with a view to deportation or extradition.’ 9

It should be noted that the ECHR was incorporated into national law, thus making it enforceable in Malta, through the European Convention Act, CAP 319 of the Laws of Malta.

Reception of Asylum-seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06.

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Directive11 and the recast Asylum Procedures Directive12 into Maltese law. In addition to amendments to the law, a new Strategy for the Reception of Asylum-seekers and Irregular Migrants was published in 201513. The amended Reception Regulations provide for the possibility to detain asylum-seekers on six limited grounds, which mirror the ones listed in the Regulation 6 of the recast Reception Conditions Directive: a. In order to determine or verify the person’s identity or nationality; b. In order to determine those elements on which the application is based which could not otherwise be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant; c. In order to decide, in the context of a procedure, in terms of the Immigration Act, on the applicant’s right to enter Maltese territory; d. When the applicant is subject to a return procedure and that there are reasonable grounds to believe that the applicant is making the application for international protection merely to delay or frustrate the enforcement of the return decision; e. When protection of national security or public order so require; f. When the applicant is subject to a Dublin procedure and there is a significant risk of absconding. 11

Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast). 12

Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast).

Ministry for Home Affairs and National Security, ‘Strategy for the Reception of Asylum Seekers and Irregular Immigrants’, 2015.

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4. Review of Administrative Detention of AsylumSeekers 4.1 Review under the Reception Regulations and appeals under Article 25A of the Immigration Act Asylum-seekers who, following an individual assessment, are determined to fall under a ground of detention under Regulation 6(1) of the Reception Regulations will be detained. They will have the right to an automatic review of the lawfulness of their detention by the Immigration Appeals Board (IAB) after 7 working days from the Detention Order, which may be extended by another 7 working days by the Board for duly justified reasons. If the applicant is still detained, a new review would be conducted after periods of 2 months thereafter. In addition, Regulation 16 of the Reception Regulations also allows for a parallel review under the Article 25A(7) Immigration Act with the possibility to challenge deportation or return decision and removal orders before the IAB within 3 working days from the Order. The Immigration Act stipulates that the Board shall grant release from custody where the detention of a person is not required under the same Act or under the Refugees Act, or where, in the case of a person detained with a view to being returned, there is no reasonable prospect of return within a reasonable time-frame14. Nevertheless, it extremely difficult for asylum-seekers to access this procedure as the vast majority of asylum-seekers do not have the capacity to submit an appeal in such a tight timeframe. It should be noted that decisions relating to the review of detention and appeals under Article 25A(7), as all other IAB decisions, are neither published nor publicly available15 and it is therefore impossible to even attempt a complete assessment of this review procedure, including the elements the IAB takes into consideration whilst conducting it. This lack of transparency presents a number of problems, for 14

Article 25A(10) of the Immigration Act, op cit.

Decisions of the Refugee Appeals Board are also not published or publicly available.

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legal practitioners it is impossible to assess the jurisprudence when representing a client and at a higher level it results in an absence of accountability of decision-makers when making detention related orders and of the Boards when deciding on challenges or appeals of detention orders. These problems are acerbated by the fact that IAB decisions are final and there is no possibility of further appeal to the Courts.

4.2 Application under Article 409A of the Criminal Code – Habeas Corpus Any detained person may file a habeas corpus application to challenge the lawfulness of detention before the Court of Magistrates, under Article 409A of the Criminal Code which lays down that ‘Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody’. The habeas corpus procedure is based on an assessment of the legality of the person’s detention and is both a speedy and a judicial remedy. However, it does not allow for the examination of the lawfulness of detention in terms of the ECHR, as the Maltese Courts have interpreted their mandate under Article 409A to be strictly bound to examining the legality of detention only under provisions of Maltese law16. Prior to the 2015 amendments to Malta’s reception legislation, this stance was proved to be problematic to asylumseekers attempting to secure their right to liberty through the habeas corpus procedure, since the automatic and mandatory imposition of administrative detention did not allow for an assessment on the 16

The fact that the habeas corpus is not an effective remedy for the purposes of breaches of the Constitution or the ECHR was confirmed by the Constitutional Courts in Essa Maneh v the Commissioner of Police as Principal Immigration Officer, and the Minister for Justice and Home Affairs, 53/2008/1, 29 April 2013: ‘il-Qorti Kriminali ddecidiet li l-kompetenza tal-Artikolu 409A ma testendix ghall-ezami tal-aspetti kostituzzjonali tal-kaz’.

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legality of administrative detention, or on its conformity with the Convention’s strict standards and requirements. However, with the inclusion of the grounds of detention in the new Regulation 6 of the Reception Regulations the Maltese Courts are now empowered to examine alleged illegal detention against those provisions of national law. In Karim Barboush17, the applicant had filed a habeas corpus whilst he was in detention pending the determination of his asylum appeal. The Court of Magistrates ordered the release of Barboush and found his prolonged detention illegal. However, this was overturned on appeal and the Criminal Court ordered his re-arrest. The Court held that its jurisdiction under Article 409A is limited to examining whether the continued detention is one which is based or founded on some provision of national law. Judge De Gaetano, presiding over the Criminal Court, held that it is not the competence of the Court of Magistrates nor of the Criminal Court to examine whether there are other circumstances that would make the detention illegal, if there are clear provisions allowing for the continuation of detention, and this also where there is an allegation that; ‘dik il-liġi tkun tikkozza mal-Kostituzzjoni jew mad-disposizzjonijiet dwar id-Drittijiet u Libertajiet Fondamentali mħarsa mill-istess Kostituzzjoni, jew għax tkun tikkozza mad-disposizzjonijiet tal-Konvenzjoni Ewropea; jew jekk il-fatt tad-detenzjoni fih innifsu, u cioe` indipendentement mill-liġi li tkun tawtorizza dik id-detenzjoni, ikunx b’xi mod jilledi d-drittijiet fondamentali ta’ dak li jkun. Għal tali sindakar hemm proċeduri oħra quddiem qrati oħra li huma vestiti billiġi biex jagħmlu proprju tali stħarrig u, f’każ li jsibu li hemm ksur ta’ xi dritt fondamentali jew isibu li hemm malamministrazzjoni da parti ta’ l-Eżekuttiv, jaghtu rrimedju skond il-liġi.’ Ultimately, the Court concluded that the fact that Barboush was 17

Karim Barboush v Kummissarju tal-Puluzija, 2/2004, 5 November 2004.

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an asylum-seeker did not make his detention illegal, as the Refugees Act made provision for both legal and illegal presence in Malta and made this distinction in the assessment of whether a person may be detained or not18. However, with the inclusion of provisions containing an exhaustive list of grounds for detaining asylum-seekers in the Reception Regulations19 in 2015, the habeas corpus remedy has now become relevant. In a 2018 case, Rana Ghulam Akbar20, the Court of Magistrates examined Regulation 6 in relation to a claim of illegal detention. Akbar was returned from Germany to Malta and on being returned he was detained on the basis of Regulation 6(1)(b) of the Reception Regulations and issued with a Detention Order. Regulation 6(1)(b) allows for the detention of asylum-seekers ‘in order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant’. On 14 February 2018 Akbar appealed his Detention Order before the IAB, on the grounds that under Regulation 6(1)(b) detention may not be resorted to in situations where the applicant had already provided the authorities with the required elements of the asylum claim, that the risk of absconding per se cannot be relied upon as an independent detention ground, and that the Immigration Police failed to conduct an individual assessment as to whether administrative detention was reasonable and necessary. In particular, the appellant highlighted that the Police failed to explore any less coercive measures to detention. On 15 February 2018 the IAB rejected the appeal on the basis that ‘the risk of absconding does exist’ and that ‘detention is also legal on the basis that the reasons stated for international protection might 18

See also Napoleon Merbrahtu vs Kummissarju tal-Puluzija, 25 June 2003, as referred to in Essa Maneh and three others v the Commissioner of Police as Principal Immigration Officer and the Minister for Justice and Home Affairs, 16 December 2009, the Court of Magistrates decided that 10 months in detention was not illegal as Merbrahtu was a ‘prohibited migrant’ in terms of Article 5(1) and detained legally on the basis of Article 14(2) of the Immigration Act.

Regulation 6 of the Reception of Asylum-seekers (Minimum Standards) Regulations, op. cit.

Rana Ghulam Akbar vs Kummissarju tal-Pulizija, 26 February 2018.

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have been incorrect.’21 On 23 February 2018 Akbar filed a habeas corpus under Article 409A of the Criminal Code. The Court of Magistrates ruled that ‘the guiding principles are that detention is only a measure of last resort and that less coercive measures should always be sought before going for detention’. The Court noted that the applicant had satisfied those elements, or most of those elements, that had to be determined in order to process his application for asylum. The ‘risk of absconding’ had emanated principally from the fact that the applicant had originally obtained a visa to Malta for study purposes, whereas he was not intending to study and that therefore the reasons for requesting asylum might have been incorrect. The Court held that his detention was in breach of Maltese law, as the ‘declaration that the applicant’s ‘risk of absconding’ is one that is not sustainable within the strict parameters of Regulation 6(1)(b)’. The Court ordered his immediate release from detention. In an earlier case filed in 2016, Aboya Boa Jean22, the applicant was detained when he filed an application under Article 409A for his immediate release. The Court of Magistrates upheld the legality of the applicant’s detention, as it found that the applicant was raising the same issues he had raised before the IAB. The court agreed with the IAB that the ‘risk of absconding’ under Regulation 6(1)(b) of the Reception Regulations should be seen in the light of the entire subregulation, allowing the detention of asylum-seekers in order to establish the elements on which such application was based. Aboya filed a complaint before the ECtHR claiming a breach of Article 5(1)(f) ECHR, claiming that the deprivation of his liberty had been unlawful and arbitrary for the following reasons: (i) Regulation 16(2) of the Procedural Standards Regulations authorised entry of asylum-seekers into Malta, thereby rendering his Detention Order contrary to the Convention and (ii) the Detention Order had also been contrary to domestic law as the applicant had provided all the relevant documentation and information regarding his asylum application upon his arrival. Furthermore, no individual assessment 21 Appeal of Rana Ghulam Akbar – Detention Order, Immigration Appeals Board Division II, 15th February 2018. 22

Aboya Boa Jean v. Malta, Application No 62676/16, Communicated on 10 July 2017 (pending).

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as to the necessity of his detention had been carried out by the immigration authorities. The applicant also complained under Article 5(4) ECHR that the remedy afforded to him to challenge his detention had not been speedy and effective, owing to the violation of the deadline provided by law in order for the Board to carry out an automatic mandatory review of his detention, as not only had the IAB reviewed the detention only one month late23, but they had also failed to convene in order to discuss whether there were any duly justified reasons to postpone the review. The case is currently pending a decision at the ECtHR.

4.3 Constitutional action before the national courts and the ECtHR A detainee may file an application claiming a breach of Article 34 of the Constitution together with Article 5 ECHR (protection from arbitrary arrest or detention), and 36 of the Constitution in conjunction with 3 ECHR (prohibition of inhuman and degrading treatment) through a constitutional application filed in the Civil Courts. However, concerns relating to the severe delays in national Court proceedings have led the ECtHR to find that such constitutional actions fail the effective remedy test under Article 5(4) ECHR.

4.3.1 Article 34 of the Constitution and Article 5 ECHR: Protection from Arbitrary Arrest or Detention In a 2009 case, Essa Maneh24, the applicants were being held at 23

‘…the Board informed the applicant that it had not been able to comply with the deadline provided by the law for the review of his detention since on the date required by the Reception Regulations … a Board member was attending a conference overseas and therefore he could not take part in the hearing. Furthermore, the Board stressed that since its members were merely part-time employees meeting once a week and lacking administrative support while being responsible for a vast array of immigration related appeals, it was simply unable to meets its legal obligation and determine the lawfulness of his detention on time’, Aboya Boa Jean v. Malta, Application No. 62676/16. 24

Essa Maneh and three others v the Commissioner of Police as Principal Immigration Officer

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Safi Barracks Detention Centre. At the time of the first decision they had been in detention for over 14 months and were still awaiting a decision on their application for asylum. Government policy in force at the time stated that migrants could only be held in detention for a maximum period of 12 months pending the determination of their claim for asylum, and for a maximum period of 18 months if their claim for asylum had being finally rejected. The applicants claimed that, although their initial detention was authorised by the Immigration Act, their prolonged detention was illegal and arbitrary and contrary to Article 34 of the Constitution and Article 5 ECHR. The applicants requested the Court to declare that the length and conditions of detention breached their fundamental rights, as protected by the Constitution and the ECHR. The first Court dismissed their pleas and found that their detention as ‘prohibited migrants’ was according to law. In examining the length of time prescribed by Maltese policy, Judge Tonio Mallia stated that the Court understood the need to balance the liberty of the individual with the right of the State to protect the socio-cultural aspects of society:

‘F’każijiet bħal dawn il-Qorti tifhem il-ħtieġa li jinżamm bilanċ bejn il-liberta’ tal-individwu, u d-dritt tal-istat li jipproteġi u jħares l-aspett soċio-kulturali ta’ pajjżna. Malta tinsab fiċ-ċentru tar-rotta li persuni minn diversi stati anqas żvilluppati minna fl-Africa jieħdu biex b’mod illegali, jaqsmu għall-Ewropa bl-isperanza li jsibu livell ta’ għixien aħjar. Fil-każ ta’ Malta, it-tul ta’ żmien hu, għalhekk, determinat mhux biss bin-numru kbir ta’ persuni li jiżbarkaw fuq l-ixtut tagħna, iżda bil-fatt li ħafna minn dawn il-persuni, jekk mhux kollha, ma jikkoraborawx mal-awtoritajiet billi ma jfornuwhomx bid-dokumenti personali taghħom.’

and the Minister for Justice and Home Affairs, 16 December 2009.

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On appeal, the Constitutional Court 25established that their detention was legal and the actions of the authorities did not lack bona fede seeing that the applicants had entered Malta irregularly. In addition, the applicants did not appeal their Detention Order as allowed by Article 25A of the Immigration Act. The Constitutional Court quoted the ECtHR’s Louled v. Malta26 judgement where it held that ‘...the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation’. The Maltese Constitutional Court however held that the situation, in this particular case, was different as the applicants had been released after 12 months, whereas Louled was held in detention for 18 months following the rejection of his refugee application. The Constitutional Court also considered the balance between the rights protected by the ECHR and the interests of society and national security ‘in-nuqqas da parti tal-applikant li japplika ghar-rilaxx provvizorju, ikkunsidrati wkoll il-bilanc gust li ghandu jsir bejn l-interessi tas-socjeta` in generali u lhtiega li jigi protett id-dritt sancit bl-Artikolu 5, ma jistax jinghad li d-detenzjoni tieghu kienet teccedi dak li hu ragjonevoli ficcirkostanzi.’ This case was decided a few months before the ECtHR found that Malta had breached Article 5 in Suso v. Malta27 and Aden Ahmed v. Malta28, examined below in further detail.

Louled Massoud v. Malta29 was the first of a string of Strasbourg judgements that consistently found breaches of Article 5 ECHR in relation to the detention of irregular migrants and asylum-seekers in Malta. Massoud had arrived in Malta by boat in June 2006 and was immediately detained at Safi. He was subsequently charged and found guilty of aiding others to enter Malta. On completing his sentence of imprisonment, he was released but immediately placed in a Detention Centre for a little more than 18 months. In his application he claimed a breach of Article 5(1)(f) and (4), the latter relating to a 25 Essa Maneh v the Commissioner of Police as Principal Immigration Officer, and the Minister for Justice and Home Affairs, 53/2008/1, 29 April 2013. 26

Louled Massoud v. Malta, Application No. 24340/08, ECHR 2010, 27 October 2010.

Suso Muso v. Malta, Application No. 42337/12, ECHR 2013, 9 December 2013.

Aden Ahmed v. Malta, Application No. 55352/12, ECHR 2013, 9 December 2013.

Louled Massoud v. Malta, Application No. 24340/08, ECHR 2010, 27 October 2010.

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lack of access to an effective remedy to challenge the lawfulness of his detention. The ECtHR noted that the entire duration of his detention was subsequent to the rejection of his asylum claim at first instance, due to this previous imprisonment, and that the final decision on his asylum claim was delivered three weeks after the commencement of his detention in the detention centre. The Court expressed: ‘grave doubts as to whether the grounds for the detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the authorities to conduct the proceedings with due diligence’ The ECtHR also considered whether Maltese law offered any safeguards to protect persons from arbitrariness, noting that the Immigration Act did not contain any provisions limiting detention and that the policy in force at the time had no legal force. The absence of procedural safeguards within the Maltese legal system was decisive, and the Court established that the applicant did not have access to any effective remedy under Article 25A of the Immigration Act, Article 409A of the Criminal Code, nor through constitutional proceedings. It followed, for the Court, that the Maltese legal system failed to provide a procedure intended to avoid arbitrary detention, finding a violation of the Convention.

Suso Musa v. Malta30 and Aden Ahmed v. Malta31 were both decided a few months after the Essa Maneh Constitutional judgement examined above. In both cases the ECtHR found that the detention of the applicants breached Articles 5(1) and 5(4) of the Convention. In Suso Musa, a Sierra Leone national who entered Malta by boat in an irregular manner, was placed in detention throughout his asylum process, including the appeal stage. Meanwhile, he challenged 30

Suso Muso v. Malta, Application No. 42337/12, ECHR 2013, 9 December 2013.

Aden Ahmed v. Malta, Application No. 55352/12, ECHR 2013, 9 December 2013.

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the legality of his detention, under Article 25A of the Immigration Act before the IAB and to which he was given a decision rejecting his challenge more than a year after its filing. The ECtHR noted that the applicant’s detention up until he received a final rejection from the RAB had as a legal basis Article 5 in conjunction with Article 14 of the Immigration Act, and therefore fell under the first limb of Article 5(1)(f): ‘to prevent his effecting an unauthorised entry into the country’. However, even accepting that the applicant’s detention had been closely connected to the purpose of preventing his unauthorised entry to the country, the Court noted a series of odd practices on the part of local authorities, and it also raised concerns about the appropriateness of the place and the conditions of detention endured ‘for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country’. The Court revised its previous thinking in stating the following: ‘where a State which has gone beyond its obligations in creating further rights or a more favourable … enacts legislation (of its own motion or pursuant to European Union law) explicitly authorising the entry or stay of immigrants pending an asylum application… an ensuing detention for the purpose of preventing an unauthorised entry may raise an issue as to the lawfulness of detention under Article 5 (1)(f)’. In relation to the period of detention after the final asylum decision, the Court held that this fell under the second limb of Article 5(1)(f) ‘with a view to deportation or extradition’, and that detention under the present article could be justified only for as long as deportation proceedings were in progress. The Court considered that a detention period of 10 months could not be considered as serving the purposes of deportation. It finally concluded that ‘the national system failed as a whole to protect the applicant from arbitrary detention, and that his prolonged detention following the determination of his asylum claim cannot be considered to be compatible with the second limb of Article 5(1)(f) of the Convention.’ Similarly, in Aden Ahmed32 the Court found that the applicant’s 14 months in detention subsequent to the rejection of her asylum claim 32

Aden Ahmed v. Malta, ibid.

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could only be justified as long as deportation proceedings were in progress. It held that ‘the total failure of the domestic authorities to take any steps to pursue removal’ confirmed that no such deportation was in progress, finding a breach of Article 5(1). The applicant, who had requested release on grounds of vulnerability, also claimed a violation of Article 3 of the Convention as explained in further detail in the section relating to inhuman and degrading treatment below. In 2016, the ECtHR in Abdi Mahamud v. Malta33, ruled that Malta violated Article 3 and Article 5 ECHR due to Malta’s prolonged detention of Abdi Mahamud while she awaited decisions on her asylum application and her request for provisional release from immigration detention based on ill-health and her status as a vulnerable person. During her time in detention, she developed a number of physical and psychological conditions and applied for release on medical grounds. Whilst reteirating the Court’s assessment in Suso Musa and Aden Ahmed in relation to Article 5, it also examined the Government’s policy in relation to its vulnerability assessment policy, observing that: ‘...the applicant’s vulnerability assessment took eleven months to be... No explanation has been given as to why it took two months from the lodging of her request for the applicant to be interviewed, or why it took another eight months to indicate to the applicant that she may be released..., and yet another month to actually release her on the basis of a decision stating that her claim was acceded to...The examples referred to by the applicant... and not rebutted by the Government, go to show that this is often a lengthy procedure, which has reached deplorable delays in the present case.’ The Court took into consideration the detention and age assessment procedures of two Somali asylum-seeking children in Abdullahi Elmi & Aweys Abubakar.34 Whereas the Court observed 33

Abdi Mahamud v Malta, Appplication No. 56796/13 ECHR 2016, 3 August 2016.

Abdullahi Elmi & Aweys Abubakar v Malta, Application No. 25794/13 and 28151/13, ECHR 2017, 22 February 2017. This judgement is examined in further detail in Chapter V on Age Assessment.

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that the detention had a sufficiently clear legal basis, it was deemed arbitrary due to the severe delays in the age assessment process, which raised serious doubts as to the Maltese authorities’ good faith. This situation was further exacerbated due to the lack of procedural safeguards, as well the failure of the authorities to ascertain that immigration detention was a measure of last resort for which no alternative was available. Further to the pronouncement of the above ECtHR judgements, the local Civil Court in its Constitutional jurisdiction found a breach of Article 34 of the Constitution and Article 5 ECHR in Tafarra Besabe Berhe,35 which was decided ten years after the original application was filed. The Court held that in order for the arrest to be legal, the deprivation of liberty must be imposed in conformity with the substantive and procedural rules of national law. It explained that Article 14(2) of the Immigration Act allowed for the detention of persons who arrived in Malta in an irregular way, and that the detention of these persons may be compatible with Article 5(1)(f) of the Convention. However, it stressed, certain conditions have to be safeguarded in order for such arrest or detention not to become arbitrary or illegal. The Constitutional Court noted how the notion of arbitrariness in Article 5(1) extends beyond a lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and contrary to the Convention, and held that:

‘l-Qorti hija tal-fehma li hekk kif ir-rikorrent ressaq it-talba tiegħu mal-awtoritajiet Maltin biex jingħata kenn f’Malta, ma setax jingħad aktar li hu kien qed jinżamm f’Malta bil-ħsieb li jitreġġa’ lura mnejn kien ġie… il-fatt li, minkejja li ressaq talba biex jingħata kenn f’Malta, ir-rikorrent inżamm fiċ-Ċentru ta’ Detenzjoni jqajjem ukoll element ieħor li dik iż-żamma kienet arbitrarja minħabba li ż-żmien meħud mill-awtorita’ kompetenti biex tqis it-talba tiegħu kienet tmur lil hinn minn dak 35

Tafarra Besabe Berhe v the Commissioner of Police as Principal Immigration Officer and the Minister for Justice and Home Affairs, Case No.12, 27/07JRM, 9 March 2017.

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meqjus raġonevoli.’ The Court found for the applicant in relation to his claim of a breach of Article 5, but not of Article 3 ECHR.

4.3.2 Article 36 of the Constitution and Article 3 ECHR: Inhuman and Degrading Treatment The applicants in the above-mentioned case, Essa Maneh36, also claimed that length of their detention and the uncertainty of the period for which they would have been held constituted inhuman and degrading treatment. The Civil Court in its Constitutional jurisdiction held that being detained in Safi Barracks for a period of 12 to 18 months does not meet the intense physical and mental suffering threshold required by law for such treatment to fall within the definition of inhuman or degrading treatment. In addition, the object of the detention was not to humiliate and debase them but rather it was a measure needed to ensure stability of the country ‘fiċ-ċirkostanzi partikolari ta’ pajjiżna, bħala miżura meħtiega għallistabbilita’ ta’ pajjiż biex kemm jista’ jkun, jiġi evitat duluvju ta’ nies ‘irregolari’ jiġġerrew ma’ Malta’. On appeal, the Constitutional Court37 agreed with the first Court and, though it understood the anxiety migrants felt when being held in detention, it decided that their detention conditions did not amount to inhuman and degrading treatment. Following the local Essa Maneh judgement, in 2013, the Strasbourg Court made reference to reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Essa Maneh and three others v the Commissioner of Police as Principal Immigration Officer and the Minister for Justice and Home Affairs, 16 December 2009. 37

Essa Maneh v the Commissioner of Police as Principal Immigration Officer, and the Minister for Justice and Home Affairs, 53/2008/1, 29 April 2013.

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Punishment38 and the International Commission of Jurists39 in Suso Musa40, although the applicant did not lodge a complaint for a breach of Article 3 ECHR. The reports expressed concern on the conditions in detention and considered that the conditions in question could amount to inhuman and degrading treatment under Article 3 of the Convention. The Court found it ‘difficult to consider such conditions as appropriate for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country’. In Aden Ahmed41, also decided in 2015, the ECtHR reiterated that, according to its case-law, ill-treatment must attain a minimum level of severity for it to fall within the scope of Article 3 of the ECHR. The assessment of this minimum level of severity is relative and depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. The Court held that States must ensure that a person is detained in conditions which are compatible with respect for human dignity, and that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The Court noted the overcrowded dormitories which lacked heating, proper blankets during the winter months, and lack of access to the recreation yard and fresh air for 3 months. In addition, the absence of female staff in the centre caused discomfort to the female detainees, particularly the applicant who suffered from specific medical conditions related to a miscarriage. The Court considered that her situation was vulnerable due to a combination of her irregular migrant status, her past, her personal emotional circumstances and her fragile health. Furthermore, these conditions persisted for a continuous period of 14 and a half 38

Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 26 May 2008, 17 February 2011. 39

Not here to stay, Report of the International Commission of Jurists on its visit to Malta on 26-30 September 2011, May 2012.

Suso Muso v. Malta, Application No. 42337/12, ECHR 2013, 9 December 2013.

Aden Ahmed v. Malta, Application No. 55352/12, ECHR 2013, 9 December 2013.

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months. Finally, it held that ‘the cumulative effect of the conditions complained of diminished the applicant’s human dignity and aroused in her feelings of anguish and inferiority capable of humiliating and debasing her and possibly breaking her physical or moral resistance. In sum, the Court considers that the conditions of the applicant’s detention in Hermes Block amounted to degrading treatment within the meaning of Article 3 of the Convention.’ In contrast, in Moxamed Ismaaciil & Abdirahman Warsame42, the ECtHR was concerned with the applicants’ allegations of suffering from the cold and with the lack of female staff, but noted that there had been various improvements to the centres. The Court found that the applicants had not shown that they were denied adequate medical assistance. Consideration was given to the fact that access to an outdoor yard was given to the applicants for them to exercise in the open air, as well as to the provision of indoor recreational activities. The Court concluded that the cumulative effect of the conditions of detention did not amount to degrading treatment and found no violation of Article 3. In a case similar to Aden Ahmed, the Court found a violation of Article 3 due to the applicant’s vulnerability. In Abdi Mahamud43, the Court considered that the specific circumstances ‘no access to outdoor exercise for anything between eight and twelve weeks, the poor environment for outdoor exercise in the remaining period, the lack of specific measures to counteract the cold, the lack of female staff, the little privacy offered in the centre, and the fact these conditions persisted for over sixteen months’ had the cumulative effect of diminishing the applicant’s human dignity. It found that the conditions of the applicant’s detention in Hermes Block amounted to degrading treatment within the meaning of Article 3 of the Convention. More recently, and following the above ECtHR judgement, the local Courts were asked to examine detention in the light of Article 42

Moxamed Ismaaciil and Abdirahman Warsame v Malta, Application Nos. 52160/13 and 52165/13, ECHR 2016 12 April 2016.

Abdi Mahamud v Malta, Application No. 56796/13 ECHR 2016, 3 August 2016.

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36 of the Constitution and 3 ECHR in the Tafarra Besabe Berhe44 case. Judge Micallef noted that there is an unqualified prohibition to subject any person to inhuman and degrading treatment. The Court commented that the treatment must be of a certain level and gravity, and it must be proved to be such that is not merely an inconvenience or discomfort. The Court did not find a breach of Article 3 due to the recent improvements in the centres, the regular attendance of doctors and nurses, and that the detainees themselves vandalised the centres. The applicant filed an appeal in the Constitutional Court45, challenging the first Court’s ruling of the non-violation of Article 3. The Court examined the elements of Article 3 and the concept of ill-treatment. It considered that showing a lack of respect for, or diminishing the human dignity of detainees, or actions that arouse feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, may also fall within the definition of Article 3. The Constitutional Court took into consideration the allegations of overcrowding and lack of access to fresh air. It noted that there were improvements to the centres and that detainees had access to the recreational area a few hours a day:

‘għalkemm qed jiġi rikonoxxut illi din il-konċessjoni hija ‘l bogħod mill-istandards internazzjonali bażici għal dak li jirrigwarda aċċess ta’ detenuti għall-arja, jirriżulta wkoll illi fil-perijodu ta’ tliet xhur li r-rikorrent kien ġie akkomodat ġewwa t-tent compound, ma kien hemm ebda limitazzjoni tal-ħin li seta’ jqatta’ barra flarja aperta.’ The Court did not find that limitations of communication, health services nor the conditions of sanitary facilities amounted to inhuman and degrading treatment.’ Finally, the Court made reference to the Aden Ahmed and 44

Tafarra Besabe Berhe v the Commissioner of Police as Principal Immigration Officer and the Minister for Justice and Home Affairs, Case No.12, 27/07JRM, 9 March 2017.

Tafarra Besabe Berhe v the Commissioner of Police as Principal Immigration Officer and the Minister for Justice and Home Affairs, 27/07JRM, 24 November 2017.

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Abdullahi Elmi judgements, and held that: ‘ma jirriżultax illi l-fattispeċje ta’ dawk il-każijiet jistghu jsibu riskontru fiċ-ċirkostanzi tal-kaz odjern. Infatti, huwa evidenti illi l-element determinanti għassejba ta’ ksur tal-Artikolu 3 tal-Konvenzjoni fil-kaz ta’ Aden Ahmed v. Malta kienet il-pożizzjoni vulnerabbli tal-applikant minħabba l-istat ta’ saħħa prekarja tagħha, kemm fiżika kif ukoll mentali, kif ukoll il-passat tagħha u ċ-ċirkostanzi emozzjonali marbutin miegħu’. As mentioned above, in Abdullahi Elmi & Aweys Abubakar v Malta46 the ECtHR found a violation of Article 3 ECHR due to the cumulative effects of the conditions in detention on the applicants. The applicants were minors detained for a period of around 8 months. The ECtHR noted that the applicants complained of limited light and ventilation and that international reports: ‘…considered that Warehouse 2 was not intended to host people, and that it was not suitable to accommodate people for prolonged periods’. Importantly, the ECtHR highlighted that a child’s extreme vulnerability should be the decisive factor in any assessment, and should take precedence over considerations relating to the status of irregular migrant. In relation to the reception of children in an asylum setting, the Court held that ‘reception conditions for children seeking asylum must be adapted to their age. However, no measures were taken to ensure that the applicants as minors received proper counselling and educational assistance from qualified personnel specially mandated for that purpose…Nor were any entertainment facilities provided for persons of their age. Furthermore, the Court cannot ignore the applicants’ submissions to the effect that there was a tense and violent atmosphere, as also documented by reports...The lack of any support mechanism for the 46

Abdullahi Elmi & Aweys Abubakar v Malta, Application No. 25794/13 and 28151/13, ECHR 2017, 22 February 2017.

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applicants, as minors, as well as the lack of information concerning their situation, must have exacerbated their fears.’

5. Effective Remedy The possibility of challenging or reviewing the legality of administrative detention at the national level can be a cumbersome, complex and at times ineffective process. Malta’s system of challenging or assessing detention and it’s the compatibility with the Convention came under the ECtHR scrutiny in several cases. This resulted in the ECtHR consistently finding the regime to violate the right to an effective remedy enshrined in Article 5(4)47. As earlier as 2010, the ECtHR in Louled Massoud48 established that detainees did not have any effective remedy by which to contest the lawfulness and length of their detention in Malta. In relation to the habeas corpus procedures, the Court held that ‘the remedy under Article 409A did not provide a review of the ‘lawfulness’ of detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 (1). In consequence, it cannot be considered as an effective remedy for the purposes of Article 5 (4). It follows that the Court cannot agree with the Government that the applicant should have tried such a remedy.’ On the proceedings before the IAB, the Court held that even if it considered the IAB a judicial authority competent to grant release from detention, Article 25A of the Immigration Act (as drafted at the time of the facts of this case) was limited by the fact that a request for release from custody had no prospect of success in the event that 47 ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’ Article 5(4), Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 48

Louled Massoud v. Malta, Application No. 24340/08, ECHR 2010, 27th October 2010.

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the identity of the detainee had yet to be verified. The Court also noted that the duration of proceedings before the IAB could not be considered speedy, as required by the Convention. Finally, in relation to constitutional proceedings, the Court held that ‘in Malta [they] are rather cumbersome for Article 5(4) purposes and that lodging a constitutional application could not ensure a speedy review of the lawfulness of an applicant’s detention.’ Three years after the Massoud judgement, in Suso Musa v. Malta49 the Court highlighted that the circumstances had not changed, and commented that it remained of the view that the remedies present in Maltese law did not constitute an effective remedy guaranteeing the detainee’s right to challenge his detention speedily, as required by Article 5(4) ECHR. In this particular case, the IAB had taken more than a year to determine Suso’s challenge to his detention. In Aden Ahmed v Malta50 the ECtHR used the example brought by the applicant to highlight the shortcomings inherent in national constitutional proceedings:

‘It cannot be ignored that the example submitted by the applicant (Tefarra Besabe Berhe) concerning the lawfulness of immigrants’ detention and the conditions of such detention was still pending six years after it was lodged. The Government’s argument that in that case the request had been only for the case to be set down for hearing with urgency and had not been a request for hearing with urgency is out of place and cannot suffice to convince the Court that six years to hear a case about conditions of detention can in any event satisfy Convention standards under any relevant provision. Similarly, the Court notes that the second example submitted by the applicant, namely the Essa Maneh case, concerning conditions of detention, which was lodged in 2008, was not concluded until May 2013. Against this background, little comfort can be found in the subsidiary 49

Suso Muso v. Malta, Application No. 42337/12, ECHR 2013, 9 December 2013.

Aden Ahmed v. Malta, Application No. 55352/12, ECHR 2013, 9 December 2013.

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legislation cited by the Government which states that constitutional cases ‘shall be expeditious’.’ Similarly in 2016, in Abdi Mahamud v Malta51, the Court held again that ‘none of the remedies put forward by the Government, alone or in aggregate, satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner.’ This was again confirmed in Abdullahi Elmi & Aweys Abubakar52 where the ECtHR found a breach of Article 5(4).

Abdi Mahamud v Malta, Appplication No. 56796/13 ECHR 2016, 3 August 2016.

Abdullahi Elmi & Aweys Abubakar v Malta, Application No. 25794/13 and 28151/13, ECHR 2017, 22 February 2017. Also, in Moxamed Ismaaciil & Abdirahman Warsame v Malta, Application Nos. 52160/13 and 52165/13, ECHR 2016 12 April 2016.

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The right to time? Unequal working hours, and the failure of gender equality policies and legislation Professor Frances Camilleri Cassar

Profs. Frances Camilleri-Cassar is Full Professor in the Faculty of Laws at the University of Malta with research interests around gender, social policy and equality law. She has published widely, and her most recent is a monograph titled ‘Academic Research Methods for the Law Student: a practical guide’ published in 2018 under the auspices of the Faculty of Laws.

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1. Introduction

he paper was stimulated by the question of time. To what extent does Malta’s employment legislation support gender equality in the right to time? More pertinently, do Malta’s workingtime patterns help change the traditional gender arrangement, or rather, strengthen the conservative male breadwinner model? This article seeks to contribute to a well-established literature on workingtime legislation, and the gendered forces behind women’s lives. The focus rests largely on Malta’s culture of long working hours combined with traditional expectations, which seem to suggest incompatibility with gender equality. Although long work hours, and the traditional gender arrangement, have long had a negative impact on women’s labour market participation, the phenomenon is a rarely studied aspect of working-time regimes. The approach adopted in the study, and its methodology, give a voice to Maltese women and their existing realties through eliciting data from in-depth interviews. This approach may well be innovative within the context of literature on working-time regimes and working-time arrangements. This article will also discuss policy implications and recommendations for legislative measures that may well be of relevance to policymakers in Malta. The conceptual framework in this research is the gender-based working-time regime. I argue that we cannot rely on common assumptions about time and unpaid care work. What matters is whether state policies and legislation are, in practice, effective enough to promote gender equality around the discourse of familial responsibilities and the right to time. The wider literature suggests that divergent working-time patterns often link with the institutional and regulatory environment in which they operate1. For example, Figart and Mutari opine that countries with shorter working hours tend to have a narrower gender gap in labour market participation

J.A Jacobs and K. Gerson The Time Divide: Work, Family, and Gender Inequality, (2004) Cambridge, MA: Harvard University Press.

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and with higher levels of gender equality.2 The authors claim that ‘gender equity is generally higher in European countries that have concentrated on reductions in the standard work week rather than increasing flexibility’.3 This article’s contribution to the literature is about Malta’s working-time regime, the legal regulations regarding hours of paid work, and the gendered forces behind women’s lives, as a resource in the gender model. This is undertaken through an understanding of the distribution and meaning of time to mothers in the allocation of paid and unpaid work, and the constraints affecting these. I argue that while men’s employment is largely undisturbed by their transition into fatherhood, women’s labour market decisions are negatively impacted when they become mothers. The first question that concerns this study is the extent to which a shorter working week may promote gender equality in the division of paid and unpaid work. I then go on to discuss women’s preferences for paid work, and the time constraints around family obligations.

2. A shorter working week? A reduction in working hours is high on the political agenda of the European Union (EU) and its member states, and time famine debates are a topical issue. Moreover, with its key priority of job creation and employment growth, the European Commission signals the gradual decline in the standard working week, the standard contract of employment, and the standard career with a lifetime job. A key influence on women’s working-time preferences is motherhood. An analysis of the Employment Options Survey 1998 shows that while fatherhood has little influence on men’s preferred work hours, women with young children are more likely to prefer 2

Deborah M. Figart and Ellen Mutari, ‘Degendering work time in comparative perspective: alternative policy frameworks’ [1998] RSE 460.

Journal of Economic Issues’ ‘Working time regimes in Europe: can flexibility and gender equity coexist?’.

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short full-time hours or part-time work. Indeed, mothers of young children are more likely to work part-time or shorter full-time hours, compared with childless women4. Eurostat analysis of the impact of parenthood on women and men in Malta supports the literature, and is discussed later on in the study. While it is difficult for individual negotiations to convert preferences into actual working time, collective action by the social partners may, indeed, broaden the politics of time5. For example, policies to reduce working time are characteristic of the French socio-political environment, and the state in France has intervened to regulate a reduction in full-time hours. Pascall points out that the implementation of the Aubry laws, led to the spread of a thirtyfive-hour week throughout French firms and families.6 Fagnani and Letablier concur that the thirty-five-hour week law eased the possibility of a work-life balance.7 As a result of state policies and collective bargaining in the Netherlands, full-time hours are falling, alongside an expansion in part-time work. The core concept of the Dutch ‘combination model’ is that ‘both paid and unpaid work are equally valued’8. The model works on the principle of a thirty-two-hour week, which favours the combination of a part-time wage, with part-time homemaking, for both parents. Despite criticism that the combination model has affected women’s labour market participation rather than men’s, policies around the model were instrumental in pulling away from the system of the traditional male breadwinner regime9. In parallel, 4

C. Fagan and T. Warren Gender, Employment and Working Time Preferences in Europe, European Foundation for the Improvement of Living and Working Conditions, Luxembourg: Office for the Official Publications of the European Communities (2001).

ibid.

Pascall, G. Gender Equality in the Welfare State? (2012) Bristol: Policy Press.

Fagnani, J. and Letablier, M. T. ‘The French 35-hour working law and the work–life balance of parents: friend or foe?’, in D. Perrons, C. Fagan, L. McDowell, K. Ray and K. Ward (eds.) (2006)., Gender Divisions and Working Time in the New Economy, Cheltenham: Edward Elgar. 8 J. Plantenga, ‘Combining work and care in the polder model: an assessment of the Dutch parttime strategy’, Critical Social Policy, (2002) 22, 1, 55. 9

G. Pascall, Gender Equality in the Welfare State? (2012) Bristol: Policy Press.

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Sweden makes time for both parents to care through reducing parents’ working hours, for mothers and fathers with young children, through supporting the dual-earner model and sustaining continuity in women’s working lives and financial independence from men10 . The standard thirty-seven-hour full-time work-week, and the collectively agreed limits on working time has served to address the earnings differential that is now kept low in Denmark. Moreover, the tighter regulations of the Danish working-time regime has meant that the degree of gender inequality in the labour market dropped considerably. Relatedly, Warren argues that ‘the decline of the malebreadwinner model is linked inextricably to this issue of general labour market equality, and not just to the more comprehensive policies that aim specifically to reduce inequalities in the work patterns of women and men’11. A study of innovative social policies for gender equality at work suggests three strategies that lead towards more equal rights to time.12 These are: Sweden’s policies to make women’s working lives more like men’s, through (nearly) full-time employment; the Netherlands’ Combination Scenario, using quality part-time employment to make men’s lives more like women’s; and France’s shorter working week. Fox et al.13 argue that the strategies proposed in their study would bring about the most gender-equal working time in Western Europe. Gender is central to an analysis of time, largely because of women’s time as carers, and their right to time that falls outside the commodified time systems operating in the workplace14. For example, 10

ibid.

T. Warren ‘Diverse breadwinner models: a couple-based analysis of gendered working time in Britain and Denmark’, (2000) Journal of European Social Policy. 12

Fox, E., Pascall, G. and Warren, T. Innovative Social Policies for Gender Equality at Work, The University of Nottingham and European Social Fund (2006). Gerson, K. ‘Men’s resistance to equal sharing’, in M. S. Kimmel (ed.), Men’s Lives, 9th edn, (2013) New York: Pearson Education..

ibid.

Jane Pillinger ‘Redefining Work and Welfare in Europe: New Perspectives on Work, Welfare and Time’ in Gail Lewis, Sharon Gewirtz and John Clarke (eds), Rethinking Social Policy (London:Sage) p. 327.

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in its fifth European Working Conditions survey, the European Foundation for Living and Working Conditions shows significant gender differences in terms of time spent caring for children, elderly and disabled relatives and on household chores15. It is also argued that some of the gender differences in working conditions have to do with the broader pattern of gender relations and inequality in society, such as women’s ‘double shift’ of paid and unpaid work, since they do more of the care work in the home.16

3. Working time in Malta The challenge of working-time regimes entered mainstream thinking on policy and planning in Europe, as ‘the lives of many have been depicted as time poor, time squeezed, time rushed and hurried’17. For instance, one of the main objectives of the Europe 2020 strategy is to implement policy measures that favour a better worklife balance. One policy measure in particular, is the EU Working Time Directive 2003/88/EC of the European Parliament and of the Council of Europe 4 November 2003 concerning certain aspects of the organisation of working time. Indeed, European work policies increasingly support the notion that men and women should both be able to engage equally in economic activity and private life. Plantenga and Hansen signal that ‘differences in working time between men and women arise primarily from the unequal division of unpaid work, but the extent and form that those differences take in the labour market are moderated or mediated by national working-time regimes.’18 Also based on the fifth European Working Conditions 15 Eurofound, Trends in Job Quality in Europe, Luxembourg: Publications Office of the European Union (2012a). 16

Fagan, C. and Burchell, B. Gender, Jobs and Working Conditions in the European Union, European Foundation for the Improvement of Living and Working Conditions, Luxembourg: Office for Official Publications of the European Communities (2002).

Warren, T, ‘Economic crisis, work–life balance and class’, Social Policy Review, (2014).

Plantenga, J. and Hansen, J. ‘Assessing equal opportunities in the European Union’, in M. Fetherolf Loutfi (ed.), What Is Equality and How Do We Get There? Women, Gender and Work, Geneva: International Labour Office, (2001) p. 292.

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Survey, the European Foundation for Living and Working Conditions finds that almost 40 per cent of employees indicate that they would like to change their current working time, with a preference among both women and men for shorter full-time hours19. However, the only EU Directive that caused disquiet in Malta was the Working Time Directive20. Indeed, Malta is one of the few EU member states that opted out of Article 6 of the Working Time Directive, which limits the average working week, including overtime, to forty-eight hours. The initiative taken by the European Parliament to repeal the opt-out clause in May 2005 was a matter of considerable disagreement among Malta’s social partners: employers, leading trade unions and the state.21 Much of the concern was not attributed to gender equality per sé, but to fears of a reduction in working hours and subsequent loss of income. Consequently, Malta was granted a transitional period, conditioned by the expiration of existing collective agreements. Pascall claims that opting out of the EU’s Working Time Directive penalises anyone who takes responsibility for care, and those are largely women22. I am in no way suggesting that the implementation of the Working Time Directive is crucial to a more gender-equal work-time regime or an important source for the introduction of a range of workingtime options. The thrust of my argument is that the Directive is a controversial issue not so much for gender equality but for fear of a shorter working week. While ‘a key objective of working time policy is its potential to redistribute work in favour of women’s time frames’23, regulation of working time was never concerned with the promotion 19 Eurofound Working Time and Work–Life Balance in a Life Course Perspective, (2012b) Dublin: Eurofound. 20

Baldacchino, G. Trade Unions in Malta, Report 110, Brussels: European Trade Union Institute, aisbl, (2009).

ibid.

Gillian Pascall, Gender Equality in the Welfare State? (Bristol: PS 2012).

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of gender equality.24 ‘On the contrary, managing and regulating working time has been a decisive factor in reproducing gendered forms of work organization’.25 Loud debates and controversies that emerge among Malta’s social partners suggest strong support for a culture of long working hours, irrespective of the implications for gender relations. A closer exploration of the outcome of Malta’s family-friendly measures suggests they are limited to substantive adjustment by women who still need to juggle with a forty-hour, fiveday week, male model of work. Other than basic conditions of employment and the national minimum wage established by law, wages and all other working conditions are determined through bipartite, enterprise-based collective bargaining. Legislation merely establishes the minimum conditions of employment when there is no collective agreement or trade union representing the majority of employees. Contrary to practice in much of the EU, there is no significant demand in Malta for sectoral bargaining. Both employers’ associations and trade unions vigorously defend enterprise-based collective bargaining. Enterprisespecific agreements provide flexibility in facilitating an increase in wages and improvement in working conditions26. Consequently, while collective action for regulating a shorter working week is taking place in some societies, long and rigid fulltime hours remain a coveted and protected system of earning in Malta. Full-time employment and maximum hours for part-time work vary according to economic sector and activity of work, established in the Wage Regulations Order.27 At law, hours of work, including overtime, do not exceed a maximum average of forty-eight hours a week. However, an employer may compel an employee on a fortyhour week to work more than the statutory eight hours’ overtime. 24 Lehndorff, S., Bosch, G. and Rubery, J. ‘European employment models under pressure to change’, International Labour Review, (2007), p. 146. 25

Zbyszewska, A. ‘The European Union Working Time Directive: securing minimum standards, with gendered consequences’, Women’s Studies International Forum, (2013).

Baldacchino, G. Trade Unions in Malta, Report 110, Brussels: European Trade Union Institute, aisbl, (2009), p. 13.

See LN 247 of 2003 Organisation of Working Time Regulations.

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Arguably, legally mandated norms may not always preclude the tendency for people to do it their own way in Malta. The Women, Business and the Law Report 2018 of the World Bank suggests that women’s share in Malta’s labour supply remains persistently low, at 39 per cent. Observation of statistical trends of women’s age-related economic activity rates shows a trend where in their prime years of working, women in Malta resign from fulltime employment owing to long working hours. Moreover, Eurostat suggests a 10 per cent impact of parenthood on women i.e. in the 20 – 49 age cohort, the employment rate of non-mothers is 10 percentage points higher than the rate for mothers with children under seven years of age. By contrast, the impact of parenthood for men is - 9.3 per cent, suggesting that the rate of employment among fathers is substantially higher than that for non-fathers. Relatedly, the gender employment gap stands at a high 25.6 percentage points, ranking highest among the EU-28 member states, and significantly higher than the EU-28 average of 10.5 percentage points. Rights to a shorter working week for parents of young children make time available to women and men. However, family-friendly policies in Malta are often drawn up with women in mind, allowing men to enjoy their status quo. For example, employees in Malta’s public administration28 may apply to work reduced hours which range between twenty and thirty-five hours a week for pro-rata payment, until the child reaches the age of sixteen. However, statistical data clearly demonstrate that the take-up rate of reduced hours is highly feminised. For instance, the 2018 Family Friendly Measures Survey of employees in Malta’s public administration29 shows that women’s share of reduced hours was 92 per cent of total employees working reduced hours in public entities, ministries and state departments. Similarly, the take-up rate of telework was 85 per cent women of total teleworkers. This picture implies that despite progressive discourse 28

The public administration comprises employees in government ministries and departments, and employees working in public entities.

People and Standards Division, Office of the Prime Minister, Malta.

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on work-life balance and gender equality, the existing reality is no more than a gender-divide in familial responsibilities, a gender-divide in earnings, and a gender-divide in the right to time. The next sections in the paper discuss the methodological approach in the research process, the emergent findings drawn on respondents’ verbatim quotes and relevant literature, followed by a final discussion.

3.1 A note on methodology The article asks about the right to time, and engages with voices of a random purposive sample of Maltese women through in-depth, semi-structured interviews. Full transcriptions of recorded data were analysed to identify themes, through the qualitative approach. The primary criteria for the sample of study respondents were partnered heterosexual women, with a tertiary level of education, living with a spouse and dependent children. Respondents chose their own pseudonym to protect their anonymity. Arguably, graduate women present a strong test case for an exploration of the impact of Malta’s working-time regime on mothers with dependent children: they are the better educated, have wider access to employment opportunities, and would likely have had a clear career path in mind. The existing reality of other groups of women in Malta would necessitate further research. Additionally, I wanted to understand, through women’s voices, their right to time and the extent to which husbands share familial responsibilities. For instance, Warren et al.30 argue that in heterosexualcouple households, mothers tend to experience pressure on their right to time, and their ability to work, care and manage households. My argument in defence of adopting a qualitative method of approach is this: if I were to adopt a quantitative mode of inquiry, 30

Warren, T, Pascall, G. and Fox, E. ‘Gender equality in time: low-paid mothers’ paid and unpaid work in the UK’, Feminist Economics (2010).

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associated with objectivity and statistics, would I hear my respondents express their feelings of frustration in a male model of work? For example, would numbers have told me of Nikki’s ‘big shock!’ during her unpaid parental leave as a medical doctor, when she experienced financial dependence on her husband for the first time in her adult life? She says, ‘I think that’s the biggest shock, ending up not even having one cent which really belongs to me!’ Would quantification have allowed me to hear Jade express that, ‘an important part of me has died, the engineer part of me has died, and I feel really bad!’ after she resigned from her full-time employment as an electrical engineer, for short part-time work? Numbers talk to the extent that Jade would have been a statistic in the part-time workforce, and Nikki a number in the parental leave data table. Additionally, I could easily have interpreted Jade’s part-time employment as a convenient option to a work–life balance, and Nikki’s entitlement to parental leave, as reflecting a progressive welfare state with family-friendly measures. In the contradictions women face, the reality is that both these voices draw strong implications for Malta’s working-time regime, and mothers’ right to time. I argue that there are aspects to women’s lives that cannot be pre-known or predefined by a quantitative method of research.

4. Whose right to time takes priority? Largely overlooked in national studies is Malta’s culture of long working hours, and its implications for women’s ability to combine work and family. For instance, how much do state policies assume that men and women both have a right to time for care, and for paid work? The majority of study participants have had to adjust their full-time working hours to suit family needs. Alternative work arrangements varied between self-employment, flexible hours, shorter than fulltime working hours, or a change in career to teaching with hours compatible with their children’s school. Very short part-time hours were also an option for some women, while others unable to secure convenient working time arrangements, full-time housewifery was 421

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the next best thing. Implicit in the responses is an understanding that men’s time is valued more, as the study finds a general tendency among respondents to put their husband’s career first. For example, while Clara accommodates to family needs by shifting career from senior pharmacist to schoolteacher. Meantime, her husband seems undeterred by family commitments. Clara says that he works long full-time hours, together with a part-time job. Buswell and Jenkins (1994) point out that the masculine features of time-use are very long working hours, and the expectation that every other aspect in life be of secondary importance.31 How does Clara feel about the change in her career?

‘I changed over to a teacher . . . I’m not happy . . . it’s not something sort of . . . I mean, you feel it imposed . . . my salary scale too has gone down . . . but then you say family comes first . . . I mean, it was either me or my husband . . . emm . . . it’s something we discussed you know . . . and I felt I should be the one to do it . . . if it wasn’t because of the children I think I’m still a senior pharmacist … ‘ The difference in hours worked by the study respondents, and their full-time working husbands, reflect women’s greater involvement in the domestic sphere. This difference is supported by the gender gap in Malta’s parent impact rate, discussed earlier in this study. Rose was employed full-time as a qualified electrical engineer, and was moving steadily up the career ladder. She claims that her family takes priority, and she is now out of the labour market:

‘I used to work long hours . . . well, normal hours really but too long for family commitments . . . I mean, from eight until five straight . . . we had a lot of work and were often forced to stay overtime . . . I had many conflicts with the manager because I used to want to go home . . 31

Buswell, C. and Jenkins, S. ‘Equal opportunities policies, employment and patriarchy’, Gender, Work and Organization (1994), 1, 2 (April).

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. I can’t imagine myself returning to such a situation . . . spending more time at work than at home . . . obviously, I would have to neglect the family …’ Walby suggests that women’s decisions on the division of time between paid and unpaid work are within the options open to them. ‘But those choices cannot be understood outside of an understanding of the development of the institutions and structures which construct those options’32. Martina was employed with a firm as legal procurator, however, has had to switch to self-employment and flexibility because her husband works long hours. She makes excuses for her husband:

‘Last week I didn’t go to work ’cause she was in the hospital (pointing to child) . . . I was the one to stay in the hospital and my husband was going to work . . . nothing much you can do . . . he has a lot of people working for him in his Company . . . I have none . . . so it was easier for me, so I stayed . . . anyway, I’m easier with her, you know what I mean? . . . he’s clumsy with feeds and everything . . . so, it was only natural that I stayed with her . . .’ The verbatim quotes seem to suggest that when women adopt the traditional gender arrangement, their right to time is made available to men. Indeed, ‘women make choices, but not under conditions of their own making’33 . Conformity to traditional gender norms and men’s fragile commitment to their family are assumed the natural order of things, rather than a constraint on women’s right to time. I asked respondents what employment conditions would bring them back to full-time working in the career of their choice: ‘If an organization really wanted you, what would they need to do to bring you back full time?’ To clarify further, I pose the following scenario: ‘Imagine that you receive a telephone call, right now as we talk, asking you to return to work full time, with conditions of employment 32

Sylvia Walby, Gender Transformations (AR 1997) p. 25.

ibid.

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determined by yourself. What changes would you ask for?’ Maya is a lawyer who switched career to full-time housewifery:

‘At the moment I won’t go… I won’t go for sure… the hours… mostly the hours… I can’t have full-time hours from 8 until 5... it’s impossible, you know?... maybe, I would ask to do some work here at home with the child... but, right now as things are, you know? Emm... that’s all I can say…’ Annie is a medical doctor who interrupted her career twice in seven years because of her children. Unlike her husband, also a medical doctor, Annie switched to casual part-time. She discloses, ‘resigning from work is hard’:

‘When I worked in the accident and emergency department full time, for the number of hours I worked and the stress I endured, the money was not such a big deal . . . but it’s not just the money you know? . . . I would need a lot of flexibility . . . I think that is what I would ask for mostly, flexibility …’ While working full-time for a law firm, Angela reluctantly resigns, because ‘obviously, when you have children you can’t be out of the house for such a long time’. She now works what she calls a ‘decent 20-hour week’. Angela provides flexibility to her own working hours by shifting from full-time employment to flexible self-employment. What changes would encourage Angela to go back to work as fulltime lawyer?

‘I think … basically … flexible hours . . . it would be very convenient to have that … ’cause then you can work around your family . . . ‘ Hannah interrupted her accountancy career for the second time and, works ten hours a week, while her husband is furthering his studies abroad. Why is the couple’s right to time so diverse? What would an auditing firm need to offer Hannah to bring her back to a 424

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full-time working commitment? Hannah says:

‘Flexitime … which in my case was granted for a while . . . I could work from home and go to my office . . . but you can’t work from home all the time . . . you have to go over there sort of . . . flexitime would be ideal …’ Intermittent employment due to Malta’s long-hours work-time regime is a significant finding in this article. Moreover, the responses seem to reflect entrenched cultural assumptions about Malta’s traditional gender roles that raise questions about the effectiveness of legislation and policies, and the right to time of women and men.

5. Conclusion The study asks about time. How effective are Malta’s policies in promoting gender equality in the right to time around paid and unpaid work? The findings in this study suggest a significant gender divide in hours used for earning and for caring, with a significant gender divide in the impact of parenthood, and rates of employment. Gendered time that compels women to reduce their hours of earning contributes to Malta’s level of understanding of its working-time regime. I conclude that the gendered division of time points to a single earner regime, with very little adaptation from the traditional gender arrangement. Moreover, the male breadwinner model is entrenched not only in Maltese culture and its social norms, but also in the state’s own legislative framework and social policies.34 Rather than an equal distribution of time for paid and unpaid work between women and men, the study finds that gender equality in Malta is about accommodating men with women’s own right to time. Perhaps shorter working hours would begin to address time 34

Frances Camilleri-Cassar, ‘Country fiche on gender equality and policy developments (4th quarter), External report commissioned by and presented to the EU Directorate-General Justice, Unit G1 ‘Equality between women and men’ (2015).

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inequalities in Malta? An inescapable implication is that the state’s key source of failure in achieving gender equality in the right to time is resistance to address cultural and structural disadvantages for women in its work-time regime. For instance, a study of why a twenty-hour week can help us all to flourish in the twenty-first century suggests that, ‘a much shorter working week would . . . re-shape habits and conventions, and profoundly alter the dominant cultures of western society´.35 The study makes an argument for the right to time, and a reduction in working hours for both women and men. It also argues for effective policies supported by legislative measures to ensure that limits on working time are truly enforceable.

Anne Coote, Jane Franklin and Andrew Simms, ‘21 Hours: Why a Shorter Working Week Can Help Us All to Flourish in the Twenty-First Century’ [2010] London: NEF 2.

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When Civil Law trumps the Constitutional Court Dr. Giovanni Bonello

Dr. Giovanni Bonello was judge at the European Court of Human Rights for twelve years, up to 2010. Before that he had been a lawyer in private practice, specializing in constitutional and human rights litigation, defending 170 human rights lawsuits before local and international courts. He is the author of thirty books on art and history, four of which won the Best Book of the Year award. Five full-feature books and a special edition of a law journal have been published about his achievements, which have also been the subject of university dissertations. He has recently published in book-form a critique of the workings of the Constitutional Court of Malta: Misunderstanding the Constitution, acclaimed as “the most important book of the decade”. He was President of the Malta Historical Society, and is general editor of Fondazzjoni Patrimonju Malti publications, consultant to the Palace Regeneration Project and Chairman of the university ethics and disciplinary board, and of the Drugs Offenders Rehabilitation Board. He is Chairman of the Bank of Valletta Arts Committee, and of the Strickland Foundation and sat on the Fortunato and Enrico Mizzi Foundation. He was a member of the main board of MEPA and chaired the National Committee for the Reform of the Administration of Justice.

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hat constitutional law should profile and inspire civil law, is both expected and advantageous. That civil law should pervert and corrupt constitutional law, is neither. It has happened in Malta in the beginning and it is happening daily that civil law pushes back relentlessly the frontiers of the Constitution and of the European Convention of Human Rights (the Convention). While these should be autonomous from the purview of civil law, in practice they have become its victims. The Constitution - the mega law – has been trapped by the civil law and has fallen captive to the limitations of the minor law, rather than the other way around. By civil law, I mean the corpus of civil jus, doctrines, case law and procedure. These pre-existed codified constitutional and human rights law, had built a mighty and civilizing momentum in regulating, harmonizing and stabilizing human interaction. That was a first vital step. But then, the enlightened culture that had created civil law, accepted that law itself must be subject to a more immutable, a more supreme law. The concept of constitutional law was born – a law that promotes all superior values and defeats all inferior ones. The codes and ordinary law are there to implement the constitutional will; they are tools to advance the Constitution, not weapons to gun it down – as they have sometimes become in Malta. Concepts, whether constructive or catastrophic, do not generally self-generate in a vacuum. There is always a historical moment when the seed is first sown, which then grows into the tree that bears the poisoned fruit. It may not always be easy to pinpoint that fatal moment in the sequences of history, but I would identify it with a text in the Independence Constitution of 1964. The stealthy subversion of the concept of the supremacy of the Constitution started with Article 47(7), which made the old Civil Code and the Code of Civil Procedure superior to the human rights provisions of the Constitution (and the other traditional codes including the Criminal Code too were elevated to this higher status). Nothing contained in the old Codes could be challenged for incompatibility with the fundamental human rights enshrined in the Constitution. The Civil Code was greater than the Constitution. 428

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This deviant constitutional provision directed at human-rights self-harm, had at least two juridically lethal effects: it formally decreed the supremacy of the violation of the Constitution over the Constitution itself – the breach of the Constitution was protected, and the Constitution was not. It also energised and fortified the perception, inbred in jurists through hundreds of years of legal tradition, that the values of the civil law dominate, in hierarchy, over all others. The old wisdoms of the civil law, given an almost ritual status, were pitted against a new-fangled Constitution hatched somewhere in Westminster: which wins? This perversion of basic concepts was iniquitous enough as ordained by the Constitution - but it was taken to further fatal extremes by the Constitutional Court itself. The Constitution only ‘saved’ what was provided for in the traditional codes when these conflicted with the human rights provisions of the Constitution. What was in the Codes could not be challenged on the grounds of incompatibility with the Constitution. So far, so bad. But in the judgment of Certo and Costanzo, the Constitutional Court had to deal with an old police practice, ‘not provided for in the Criminal Code’, which manifestly violated the express letter and spirit of human rights.1 The Constitutional Court made a quantum leap: it refused to scrutinize not only what was expressly provided for in the Criminal Code – but also anything that violated the Constitution and was not expressly prohibited by the Criminal Code. A manifestly anti-human rights practice (neither found in the Criminal Code nor prohibited by it) enjoyed protection against the Constitution and had to stand. The Constitutional Court would not condemn a police custom that patently violated human rights - because the Criminal Code did not expressly prohibit that old usage. The Criminal Code did not forbid that police practice, so why should the Constitutional Court bother? It is as if the Court was eager for the world to be aware that it had understood absolutely nothing of the supremacy of human rights. Human rights had to be trampled on, not only when 1

As was customary, accused persons had no right to and were not given a copy of the criminal charges, either by the police or by the court, though they requested them: Il-Pulizija v. Francesco Certo et, Constitutional Court (C.C.), 14 August 1968.

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the Criminal Code was loud, but also when it was mute. That judgement flaunted and set in stone the tragic subservience of the judiciary to the codes of Hammurabi and their sequels. Human rights could wait. Certo was one of the very first human rights lawsuits in Malta. It heralded, and with generous abandon and even greater accuracy, what was to come. Parliament finally repealed the dreadful Article 47(7) in 1991, effective from 1993, but the forma mentis it had promoted in the judiciary, which posited the ascendancy of the ordinary codes over the Constitution, was anything but repealed. It remains alive, hearty and cosseted to the present day. The provisions of the Civil Code and that of Civil Procedure still condition what should, by the very philosophy of things, be uncontaminated by inferior law. The word-count of this article cannot allow full justice to be meted out to this baneful phenomenon, but I will all the same have a try at exemplifying this.

***

The first time human rights breaches were made actionable in Malta was in 1961, by the ‘Blood’ Constitution, replaced by the Independence Constitution in 1964. When, as a litigation lawyer, I started instituting claims for human rights violations, I included moral damages in the redress requested. Moral damages? I recollect the sometimes puzzled, more often scandalized, judges asking me if I was aware of Article 1045 of the Civil Code – which disallows moral damages. Yes, Your Honour, I am aware of it, but that Article only excludes moral damages in civil cases. This case is not a civil case and the provisions of the Civil Code are wholly irrelevant to it. This is an action, born in public law, to reinstate a violation of the most supreme public law, governed by a set of completely different norms, and what the Civil Code says is entirely immaterial. No, it’s not, argued the judges, over and over again denying non-pecuniary damages in 430

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breaches of human rights – because the Civil Code says so. It took 29 long years of this incongruous misapplication of civil law, to the detriment of constitutional principles, for a judge to – finally awake to the reality that Constitutional law inhabits a superior sphere of norms and is not to be ravished by the limitations devised by Monsieur Bonaparte in the early years of the 19th century. It may have been Judge Victor Borg Costanzi, in the First Hall judgement in the case Dr Giuseppe Maria Camilleri noe vs Ministru tat-Turizmu, who for the first time applied the principle that, in matters of damages, a constitutional court is not bound by the restrictions of the Civil Code, and awarded moral damages to a victim of gross human rights violations2. That was such a revolutionary gust of subversive energy. Hail to a brave pioneer who, after 29 years, when everyone else was busy digging deeper, first made the momentous discovery that water is wet. The stranglehold of the civil-law mindset over constitutional thinking was evidenced, even recently, in the cases instituted by the victims of asbestos-related illnesses or their heirs, against the dockyards. They based their claims on their right to life and other fundamental rights, violated by the negligence of the state authorities. The human-rights courts threw their cases out with a swiftness worthy to be honoured by the Guinness Book of Records: why bother the constitutional court when they could have instituted a case for civil damages under the Civil Code? The claimants had not exhausted the ordinary remedy of the Civil Code, had they? So why were they wasting the courts’ time, resources and patience? Out.3 In truth, the victims’ claim had very little to do with the Civil Code or the remedies obtainable under it. Constitutional human-rights law requires that a violation of the right to life be compensated not only with material damages, ‘but mandatorily with moral damages too’ – 2

P.A., 30 July 1990, C.C., 10 October 1991. But in Francis Zammit Dimech v. Commissioner of Police, 25 October 1989, the Constitutional Court had accepted that, in principle, moral damages may be due in breaches of human rights, and referred the case back to the First Hall of the Civil Court to liquidate damages. 3

Maria Attard v. Policy Manager Malta Shipyards, P.A., 30 November 2010, confirmed by the C.C., 11 April 2011.

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those moral damages that the Civil Code expressly excludes! A civil action for damages was, by definition, no remedy at all. The victims had to trudge all the way to Strasbourg to have the human-rights irrelevance, not to say the malignance, of the Civil Code, spoon-fed once again to the Maltese constitutional courts.4 The Constitutional Court went even further than this. It disregards the unlimited powers conferred upon it by the Constitution to redress violations of human rights (‘make such orders, issue such writs and give such directives as it may consider appropriate’ for the purpose of securing the protection of human rights – ‘any lawful remedial measure’, so long as the rule of human rights law is reinstated). Ah, no, not according to the Constitutional Court – that means that the remedy must still be according to the laws current in Malta. So, in a constitutional case, to challenge the invalidity of the rent laws because they breach fundamental human rights, the remedy the constitutional courts will grant must still be in the ambit of the very rent laws being challenged. The mind boggles and the circularity of the reasoning the law is unconstitutional, so a remedy must be awarded, but the remedy must be in accordance with the current legal order – viz, in accordance with that order which the Constitutional Court has found to violate fundamental human rights.5 So long as the ‘existing legal order’ is saved, the rest can wait. The problem is that what is saved is the existing illegal order. The Constitution and the Convention both require that any court should be independent and impartial. The Code of Civil Procedure on the other hand, does not. It only specifies in detail in what circumstances a judge or magistrate should abstain or when one of the parties can challenge him or her. Up until recently, the Maltese Courts always held that the reasons for which a judge could be challenged, listed by the Code of Procedure, were exhaustive – nothing could be added to that list - and that the courts were only bound by the listed reasons: those hot-air dictats of independence and impartiality willed by the Constitution only meant what the Code of Procedure said they 4

Brincat v. Malta, ECtHR, 24 July 2014.

C.C., Carmen Cassar v. Direttur Akkomodazzjoni Socjali, 12 July, 2001.

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meant. That Code, in their view, ruled over the Constitution, not the other way around. Was the ground for challenge listed in the Code? If yes, they stepped down. If not, they stepped all over the Constitution. They went on hearing the case, even when their impartiality appeared very obviously problematic. From 1961 to 2009, when the European Court of Human Rights put an end to this nonsense in the case of Micallef v. Malta6, the Maltese courts had repeatedly violated this constitutional imperative – because they considered themselves bound by the Code of Procedure which, they genuinely believed, overrode it. In the Micallef case, the President of the Court of Appeal had insisted on trying a civil case in which the alleged wrongdoing had been committed by his own brother, the lawyer representing one of the parties to the case. Both instances of Constitutional jurisdiction in Malta found nothing wrong, or even unseemly, in a judge sitting in judgment to decide on the wrongdoing allegedly committed by his own brother – that was not a case for challenge listed in the Maltese Code of Procedure, which as everyone knows, is the sacred bible of justice throughout the universe and, I suspect, beyond. On the contrary, the first level of constitutional jurisdiction in Malta actually branded the lament of the victim ‘frivolous and vexatious’ – maliciously wasting the time of the court complaining that your case about the wrongdoing of a lawyer, was tried by that lawyer’s brother. Something quite similar happened in the San Leonard Band Club case7. The Code of Procedure establishes the right to request a retrial of a civil suit when the trial judge had applied the wrong law to the facts of the case. It also adds that the judges who had determined the case, later impugned on the ground that they had applied the wrong law, could then also sit to retry the case or to determine whether the case they had decided already, should be retried because of their own mistake. In other words, the judges could sit to judge themselves and their own abilities, and to decide whether they had made a mess of the law; the Code of Procedure expected judges to publicly advertise their 6

ECtHR, 15 October 2009.

ECtHR, 29 July 2004.

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own prowess or ineptitude in a formal public judgment on retrial. (Incidentally, in almost two centuries, not one single instance is on record in which a judge, in retrying his own case, discovered that he had made a fool of the law and of himself - now isn’t that an amazing record of flawless judicial competency). The Constitutional Court in Malta had found nothing wrong with judges judging themselves or deciding whether the case they are accused of having wrongly decided, should be retried – that is what the Code of Procedure prescribed, and it wins. It had to be the supranational court of Strasbourg to finally wedge in the undoubtedly bizarre notion that, independently of what the Code of Procedure says or fails to, the requirements of objective and subjective impartiality are sovereign, presumably south of Sicily too. Another obvious case: the Civil Code enumerates very stringently the conditions for a husband to challenge the paternity of a child born to his wife. Nothing wrong with that. But those preconditions set out in the Civil Code were enacted well over a hundred years before DNA testing radically changed the playing field. So, a husband who had the absolute scientific certainty, through DNA scrutiny, that his wife had committed adultery and that his wife’s child was not his own, had absolutely no remedy, according to the Civil Code. That code, in fact, not only denied him any relief, but actually obliged the husband to turn that hurtful fiction into a cash machine to fund the wrongdoer, to provide alimony to the adulteress and her children, to guarantee at least the legitim of his estate to the offspring of the man who had pushed him out of the conjugal bed and could produce eight pounds of baby weight to prove his success in doing so. A constitutional case was instituted in Malta to establish that this failure of the Civil Code to provide a remedy to this blatantly inequitable situation, constituted a violation of the applicant’s right to family life. It failed, with a big bang, in the Constitutional Court. A legal fiction was held to override scientific truth, because the fiction was propped by the Civil Code, and the scientific certainty was not, and the human-rights courts can’t let the fictions of the Civil Code down, now can they? How dare anyone invoke the Constitution 434

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or the Convention to undermine the Civil Code? In Strasbourg, a unanimous ECtHR made very short shrift of this laughable inversion of values. It found in the failure of the Civil Code to safeguard the rights of the applicant, a violation of his human rights and condemned Malta to pay damages to the battered victim of its legislator and of its Constitutional Court.8 This case also highlighted a further surrender of the constitutional jurisdictions to the Code of Procedure. The plaintiff’s constitutional action was instituted against the state, and the demand was for a simple judicial declaration that the failure of the civil law to recognize a right of action to impugn paternity when it was scientifically certain that the husband was extraneous to that paternity, constituted a breach of his human rights. The victim exercised a purely public law action against the defendant state, to obtain a judicial declaration that a law, or the deficit in a law, was unconstitutional and a violation of the Convention. No way was it an action to disown paternity, or to deprive the child of her rights to maintenance and inheritance – it was simply a constitutional public law case to test the validity of a law. The private action for disavowal of paternity could only follow if, and after, the constitutional case was over. That is the way it should have been - and that is exactly the opposite of how it turned out to be. The wife and the child asked to be joined in the constitutional case, and the court depressingly obliged – vide Code of Procedure, what else? From then onwards, a constitutional case meant to establish the compliance or otherwise of a law with the Constitution, turned into a slinging match as to who had cheated on whom, whether coitus was interruptus or of the happy-ending type, and whether the husband was a willing or a reluctant cuckold – all of the utmost relevance to the issue of the constitutionality of a law, don’t you think? In a case that should have been a linear constitutional exercise about the abstract compatibility of a law with the Constitution, years – literally - were wasted on court-sponsored diversions to establish 8

Mizzi v. Malta, 12 January 2006.

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the vaginal adventures and misadventures of a dysfunctional couple. The shambolic progress of that court case was the result of the constitutional court’s belief that the intervention in the suit by a wife and daughter, in a case impugning the constitutionality of a law, was a jolly good idea – the Code of Procedure approves of that intervention, doesn’t it, so what if it disrupts an abstract exercise to explore the constitutionality of a law? And so, the contest of law versus Constitution, surrendered to the higher reasons of playing the blame game of hormonal incompatibilities, under the rather wayward tutelage of the constitutional judge. That court turned public law into pubic mayhem. This still happens to this very day. In public law cases against the state, in which one of the various rent and emphyteutical laws are challenged by an owner, solely on the ground of their constitutional compliance, the court ropes in the tenant or occupier into the suit – because, you know, that is what the Code of Procedure recommends in private civil cases and it would be unkind to desert the bed of the Code of Procedure. This has spectacularly denaturalized the very concept of a constitutional dispute against the state, meant solely to establish its infidelity or otherwise to the Constitution. At present, the petty irrelevancies of personal civil law contractual relationships between private individuals take centre stage in what should be clinically aseptic enquiries of constitutionality. But, intervention in a civil suit is enshrined in the Code of Procedure, isn’t it, so don’t let the Constitution stand in its way. When the Strasbourg Court allows third parties into a suit, it does that as interveners, not as parties – they are given the right to file legal observations, but not to take over the running of the case. The Maltese courts have similarly transposed to human rights proceedings the restrictive civil law notions of ultra and extra petita. 9 These have no place at all in constitutional human rights claims. In civil proceedings, the law rightly bars the court from adjudicating outside the parameters of the dispute established by the parties, or to grant a higher relief than the plaintiff had demanded. These strictures 9

One of the many examples: C.C., H. Vassallo & Sons Ltd v. AG, 8 October 2012.

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are totally irrelevant in human rights actions. Extra and ultra petita can refer to two legal situations: to the nature of the breach claimed, and to the remedy demanded. International human rights law has reaffirmed repeatedly that the court is no way bound by how the applicant characterises the facts and the violation. The applicant may believe that those facts constitute a breach of Article X of the Convention and base his action on Article X, but the Court has the prerogative (extra petita) to ignore the profiling made by the applicant, to examine those facts under Article Y, and condemn the defendant under a head never invoked by the applicant. It is the Court that assumes the role of ‘master’ to characterise the claim, independently of what the parties have laid down. 10 And as to the remedies available to the Court to redress the breach of human rights, it is the Constitution itself that, in Article 46(2), establishes that the court has the most absolute freedom to give any remedy it may think is appropriate, independently of what the applicant had demanded (ultra petita). So why drag in the wholly immaterial civil law notions of ultra and extra petita in human rights actions? They simply serve to sidetrack, to deviate and to paralyze the effective protection of human rights. Though a couple of judgements have laudably acknowledged that it is permissible for a human rights court to go ultra petita in awarding remedies,11 I am not aware that any Maltese court has ever asserted the inapplicability of the extra petita rule of civil procedure to human rights actions. Similarly, the intangibility of acts of civil status, particularly birth certificates. The sacrality of birth certificates derives from the civil law, so constitutional law becomes impotent before it and defers ever so respectfully to it. The first transsexual cases provide tragic evidence of this. Post-operative transsexuals sued to have their ‘new’ gender recognized by the state and to have their birth certificate changed to reflect their genuine, liberating reality. Their human rights action 10 ECtHR, Gatt v. Malta, 27 July 2010 which also quotes seven previous authorities by which the ECtHR had reaffirmed the principle that it is the Court that is the master of what judicial profiling is to be given to the facts, not the applicant or the parties. 11

C.C., Edwin Bartolo v. Registratur, 15 February 1991; C.C., Samir Wakil Mohammed v. Prime Minister, 14 February 2011.

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relied on their fundamental right to private life. In the Gilford case, the Constitutional Court accepted that a post-operative transsexual should have his or her new identity acknowledged and registered, but the remedy it conjured was infinitely worse than the evil complained of.12 The Constitutional Court ordered that the original birth certificate remain as it is, and that the ‘change’ be annotated on it. The original birth certificate, and the new annotation, open to public scrutiny, ensures that the Court wants everyone to be well informed that, by court decree, the applicant had, post-operatively, transmigrated from failed male to approximately female. In a constitutional action meant to assert a person’s entitlement to privacy, the Constitutional Court decreed that the right to private life is best protected by advertising publicly, in a public document, that the applicant is, in its view, a freak of nature, that he has suffered invasive surgery in his private parts, but that after all that agony, a caring government now acknowledges that he is no longer a damaged male but is willing, if only for the purposes of binary neatness, to pass him off as a woman. This, if you please, to assert the fundamental human right to private life. And why? Because the civil law lays down that birth certificates cannot be changed, but only annotated. The Civil Code, rarely the law to let you down, once more smothered the last breath out of elementary constitutional values. Again, take contempt of court cases, both those ‘in the face of the court’ and the others, regulated by the Code of Procedure. These may end, and have ended, in imprisonment, so they are by their very nature clearly criminal in character. The Constitution and the Convention require, as a bare minimum, that any criminal case be decided by an independent and impartial court. But in Malta, contempt in faciem curiae is still dealt summarily by the presiding judges or magistrates. They are the victims of the contempt, but then they also assume the role of prosecutor, of witness and of judge of the offence, all cosily mashed into one. How the victim of a criminal offender can at the same time also act as impartial judge of that offender, has still to be 12

C.C., 9 October 2001.

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satisfactorily explained to me. And yet, the constitutional mandate of distancing the judge of a criminal offence from its victim is repeatedly flouted, because that is what the Code of Procedure says. And what the Code says, goes, and don’t let anything as daft as a Constitution get in its way. But then, why be amazed? In a landmark case on breach of parliamentary privilege, the Constitutional Court of Malta had found nothing wrong with Parliament fancying itself a reasonably good parody of a criminal court, to jail the political adversaries of the parliamentary majority. Nothing wrong.13 And it was also perfectly acceptable for a judge to address an employee to instant prison for having failed to switch on his air-conditioner on a sultry summer morning - what more intolerable contempt of court then expecting a judge to mop a strand of perspiration off the court’s numinous brow? The judge is the victim? The judge is also the judge. It’s the Code of Procedure, stupid. *** Long years of civil law tradition and case law have established that for persons to sue in the civil court for their civil rights, they have to show an ‘actual, direct, legitimate and juridical interest’ and that both the defendant and the court itself are entitled to question and scrutinize the ‘interest’ of the claimant. No major problems there. Problems, and very real ones, arise because the constitutional courts, then unquestioningly assumed that what was good for private law, civil relationships in the civil courts should automatically and uncritically be transposed to public law relationships in the constitutional courts. These are totally autonomous relations to which totally different dynamics should apply. For our constitutional jurisdictions, if any doctrine is good enough for civil law, it has to be equally good for constitutional law. But it isn’t. According to Maltese case law, persons have no ‘standing’ to challenge the validity of a law for being in breach of the human rights provisions of the Constitution, unless they show an ‘actual, 13

C.C., Demicoli v. Hon. Speaker, 13 October 1986.

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direct, legitimate and juridical interest’ to do so, when they have been personally and negatively affected by the operation of that law – because the civil law says so. This is a very far cry from the notion of ‘victim’ developed by constitutional law, as opposed to civil law. In Malta, to be able to challenge the validity of a security services law, one would have to prove that a law authorizing secret telephone tapping, had actually been used to violate the applicant’s personal privacy. But that should not be so: according to constitutional principles, the very existence of that law, even the mere possibility that it potentially may be used, is enough to ground a juridical interest.14 Same as a Northern Ireland law criminalizing sex between consenting male adults. According to Maltese doctrine based on civil law notions, such a law can only be challenged by a homosexual who had been personally charged under the impugned law - because the civil law says so. Not so according to international human rights doctrine: the very existence of that law and the possibility that it could affect a person, gives that person the status of ‘victim’ without the necessity of having to prove that it actually damaged the victim personally and directly.15 Thank the stranglehold on the judiciary of civil law over constitutional thinking, for this lethal shrinkage in the protection of human rights. The baneful effects of transposing civil law doctrines to constitutional rights is further evidenced by the inability of persons to challenge the compatibility of government measures (not laws) with the supreme dictates of the Constitution, for reasons which go beyond human rights. The civil law doctrine requires a personal interest to institute a civil case, ergo, ever so sheepishly, a prevalent constitutional doctrine now requires a direct personal interest to institute a constitutional case. See, through a couple of examples, how this malfunctions in practice. The Maltese Constitution directs Malta to be a neutral state. But, were a Maltese government to enter into a military alliance with, or grant military facilities to, a superpower, no one can challenge those breaches, unless the plaintiff establishes a 14 ECtHR, Klass v. Germany, 6 September 1978; Malone v. UK, 2 August 1984. For the more recent case law of ECtHR on victim status see Roman Zakharov v. Russia, GC, 4 December 2015. 15

ECtHR, Dudgeon v. UK, 22 October 1981.

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personal, direct and immediate interest in testing of the constitutional validity of those acts. How does one even start doing that? This civil law rule has gone as far as it could go to give governments immunity from judicial scrutiny, and... to make life easier for the judiciary. Similarly, the Constitution requires the government to respect certain conditions in the appointment of judges. However, if the government disregards that constitutional minimum, no person in Malta can challenge that appointment, unless he or she proves a personal, direct and immediate interest in having that particular appointment annulled – in other words, virtually no one, virtually never. Applying an irrelevant civil law norm, the courts have emptied the right to scrutinize and challenge acts of government of any meaningful content. There have been repeated instances of the tragic consequences of transposing old civil law ‘interest’ concepts to new constitutional law situations where they fit like a left glove on a right hand.16 But isn’t that the civil law definition of juridical interest? So, it has to be the constitutional law definition too, and next case please. Constitutional scholars have expressed concerns about the Constitutional Court’s very restrictive interpretation of the word ‘law’, which makes it almost impossible to challenge the constitutional legitimacy of government actions or measures, by requiring the applicant to prove a direct and personal interest in testing the validity of that measure. They argue that any government action that is binding on the people is a ‘law’ and therefore can be challenged by anyone, whether the challenger is a victim of that measure or not, whether the challenger has a direct and personal interest or not.17 *** This brings us to one of the most catastrophic stances officially assumed by our Constitutional Court in the history of the world of constitutional courts. Malta is the only state - the only one - in the whole democratic world in which its Constitutional Court has 16 Tonio Borg, Juridical Interest in Constitutional Proceedings, GHSL Journal online (Għaqda Studenti tal-Ligi) posted 7 February 2017. 17

Kevin Aquilina, ‘Constitution: popular action’ in The Times of Malta, 9 May 2017, p. 16.

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abdicated its very raison d’être: to ensure that no law contrary to the Constitution exists on the statute book. Most constitutions do not expressly spell out that a law declared inconsistent with the constitution, is null, but their constitutional courts were not deterred by this lacuna and have all the same assertion that this is to be their very basic function – to strike down any law that disturbs the rule of constitutional law. In Malta – unique jewel in the democratic world – the very opposite happened: the Constitution expressly and emphatically asserts that it is the supreme law and that any law inconsistent with it is null.18 And yet, our Constitutional Court has betrayed, cravenly betrayed, the Constitution and its very own mandate. It considers laws it has found to be inconsistent with the Constitution to be perfectly valid and enforceable - unless and until Parliament is gracious enough to repeal them, which it very rarely does. Thus, laws certified by the Constitutional Court to violate a constitutional imperative, are still valid and enforceable by the very courts which discarded them into the constitutional skip. Why this dire aberration? Mostly, because Section 237 of the Code of Civil Procedure states that a judgment is only operative between the parties to the suit. The civil suit, you dears. Of course, in civil lawsuits, a civil law judgement only applies to the parties in that civil lawsuit. But in constitutional litigation, private law principles are totally immaterial – we are here in the entirely different realm of public law, in a public law confrontation to establish the objective truth whether a law conforms to the Constitution or whether it defies it. In a constitutional lawsuit, there are no private civil law relationships or contractual interests at stake – there is the state which is claiming before the Constitutional Court that the impugned will of the legislative power is in conformity with the Constitution, and there is the Constitutional Court solemnly telling the state that it is or that it is not. But... but when the Constitutional Court tells the government that the law violates the Constitution, that law still remains valid and binding on everyone (except the plaintiff 18

Article 6.

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who challenged the validity of that law), until Parliament repeals it, and this because an irrelevant article in an irrelevant code meant to regulate irrelevant private relationships, says that judgments only bind the parties to that civil lawsuit. The end result is that, after a judgement of the Constitutional Court finds a law to violate the Constitution, that law is still perfectly valid and enforceable. The result is that the very same law is a constitutional monstrosity for the plaintiff, but a wonderfully rewarding law for everybody else. The result is that exactly the same law is valid and invalid at the same time. The result is that the Constitutional Court forces the people of Malta to obey laws which it has branded as violations of basic constitutional values. You have to cry in embarrassment and gag in shame. An example picked at random among the many: on September 6th, 2010, the Constitutional Court found a law establishing compulsory arbitration in some traffic accidents’ disputes to be valid, as it was in conformity with the human rights provisions of the Constitution.19 On September 30th, 2011, the same court, in a lawsuit instituted by a different plaintiff, ruled that the same law mandating compulsory arbitration was void, as it violated the same human rights provisions in the same Constitution.20 But then, on the 25th January 2013, the same law which was found to be alive in 2010 and then mourned as dead in 2011, enjoyed a miraculous resurrection to constitutional life, with the Constitutional Court displaying, in the three cases, faultless bedside manners.21 According to its own doctrine, there is nothing to preclude the Constitutional Court from finding that the law it had ruled to be valid in 2010, invalid in 2011 and valid again in 2013, to be invalid in 2014 and valid again in 2015. That’s juridical gravitas for you. Meanwhile, norms formally declared by the Constitutional Court to violate fundamental human rights, are still part of the laws of Malta, fully operative and enforceable. There are numerous 19

Joseph Muscat v. Prim Ministru.

H. Vassallo & Sons Ltd v. L-Avukat Generali.

Untours Insurance Agency Ltd v. Victor Micallef.

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examples of these laws certified as violating the Constitution, still being considered enforceable by the very Constitutional Court which had certified them as a violation of the Constitution. A few examples: in 1989, the Constitutional Court found the law that allowed the emphyteuta to retain possession of the tenement after the expiry of the contractual term agreed with the owner, to violate the owner’s constitutional right to private property.22 That law has not been repealed by Parliament and is still deemed to be binding and effective. The law that authorises the Director of Competition to impose crippling fines has similarly been found to be in breach of the Constitution23, but it is still in force, as if nothing louder than a faint simper from the law courts had disturbed the flawless constitutional harmonies prevalent in Malta. Constitutional courts have one main function: to ensure that nothing inconsistent with the Constitution survives in the legal order of the nation. When they fail in that function, judges became props of the regime, silk clad, but props anyway, though the gold braid is undeniably elegant. It is shameful and saddening to face the fact that no other constitutional court in the whole democratic world has abdicated so abjectly to its inherent prerogatives. Not one. Will the constitutional court in Malta ever take the bold decision to unhitch constitutional law from its servitude to civil law, and start thinking of constitutional law as an autonomous (and superior) branch of law, not constrained by the historical limitations of civil law and the law of civil procedure? Is it too much to ask to change our forma mentis, moulded by the wisdom of good old Justinian in the fifth century of the Christian era, and of his useful but rather musty Pandects, to a totally different scenario of juridical philosophy? This was the way forward the European Court of Human Rights plotted for its future when it decided to make itself relevant to Europe and to the rule of human rights law. It determined that every concept embedded in the European Convention had to be dealt with as an 22

C.C., Josephine Bugeja v. AG, 9 December 1989.

C.C., Federation of Estate Agents v. Direttur Generali, 3 May 2016.

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‘autonomous’ concept and given an autonomous interpretation – autonomous from the dragnets of other laws, autonomous from domestic laws and autonomous from traditional definitions. Until that revolutionary emancipation happens here too, so long as constitutional law remains dragged down by the irrelevancies of civil law and the mischiefs of civil procedure, we are condemning ourselves to remain at the very tail end of democratic civilization. Subordinating constitutional law to make it compatible with civil law and with the law of civil procedure is not the only reason for Malta’s dismal record in the Strasbourg Court, but it is certainly one of the determining factors. Eighty-five per cent (85%) of Malta’s judgments that have been examined by the Strasbourg Chambers and Grand Chamber on their merits have been found to be legal junk. Many of the judgements rubbished by Strasbourg were no doubt ‘right’ by Maltese civil law and by the law of civil procedure, but catastrophically wrong when scrutinised against the parameters of superior public law. Malta’s Constitutional Court has, per capita, had more of its judgments thrashed by the European Court of Human Rights than any other supreme court in the whole of Europe. A record I, for one, would rather do without. We would really be proud to be the first in Europe. But are these the firsts we aspire to?

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The impact of judgements of the European Court of Human Rights on domestic legal systems Dr. Kathleen Vella

Dr. Kathleen Vella read for a Bachelor of Laws with International Relations (2012) and Doctor of Laws (2015) at the University of Malta. Kathleen is highly interested in matters related to human rights and for that purpose, she wrote her Doctoral thesis on challenging the unlawful detention of asylum-seekers in light of the ECtHR judgements against Malta. She has also written a number of articles on the promotion and protection of human rights. Following graduation, Kathleen joined the diplomatic corps and is currently on a diplomatic posting at the Permanent Representation of Malta to the Council of Europe. 446

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1. Introduction

he protection of human rights is one of the main pillars of the Council of Europe, and the success and effectiveness of the European Convention on Human Rights (referred to as the ‘ECHR’ or ‘the Convention’), of the European Court of Human Rights (referred to as the ‘ECtHR’ or ‘the Court’) as well as of the whole structure of the Council of Europe largely depends on the extent to which the Contracting States are willing to cooperate with the said organs in an effort to achieve a truly effective human rights protection system. This is so in virtue of the Convention system’s cyclical dimension, in which responsibility to safeguard the protection of human right is constantly shifting back and forth from the national onto the Council of Europe’s institutions.1 This paper aims to examine closely the role of the ECtHR’s jurisprudence as well as that of the Council of Europe, in assisting states in achieving ECHR-compliant mechanisms. The scope is to recognise the degree to which the ECtHR can play a significant role in not only interpreting the ECHR but also in granting it a developing dimension in accordance with societal and contextual changes, all the while taking into consideration the varying interpretations of the Convention. The impact of the ECtHR judgments on domestic systems will ultimately be examined through a number of cases against Malta, so as to outline how the findings of the ECtHR led to a change in policy and legislation, and to demonstrate the Court’s influence on domestic legal systems.

1 Pierre-Henri Imbert ‘Follow-up to the Committee of Ministers’ Recommendations on the Implementation of the ECHR at the Domestic Level and the Declaration on ‘Ensuring the Effectiveness of the Implementation of the ECHR at National and European Levels’ in ‘Applying and Supervising the ECHR-Reform of the European Human Rights System’ at the high-level seminar in Oslo, 18 October 2004.

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2. Violation of the ECHR: The Council of Europe’s Role in the Execution and Supervision of Judgments In accordance with Article 46 of the Convention, Contracting Parties must abide by the Court’s final judgment in any case to which they are party2. Subsequently, the final judgment of the Court is sent to the Committee of Ministers, which is responsible for the supervision of the execution of judgments.3 In practice, after a judgment is given by the ECtHR, it is sent to the national authorities of the Respondent State (to the Office of the Attorney General in the case of Malta) who are expected to submit Action Plans and Reports to the Council of Europe which are then monitored by the statutory decision-making body of the organisation, the Committee of Ministers. This process is done in order to ensure that when a practice, policy or law is in violation of the Convention, any necessary steps are taken by the national authorities to remedy the situation. This should be done not only through reparative individual measures (such as payment of compensation, restitutio in integrum, release from detention) but also through general measures, where applicable, with the aim of preventing further violations from taking place especially when a systemic violation has been identified. Should the respective Member State remain reluctant to address the matter or to make the necessary amendments, the standard monitoring procedure could be elevated to ‘enhanced.’ If during the supervision there are conflicting interpretations between the Committee of Ministers and the Respondent State, the matter could be referred back to the ECtHR for a ruling on interpretation.4 In more serious instances, should a respondent State continue to refuse to abide by the final judgment of the ECtHR to which it is a party, the Committee of Ministers may ask the ECtHR to determine whether the particular State has failed to fulfil its Convention obligations. 2

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), Article 46(1).

ibid, Article 46(2).

ibid, Article 47.

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This is a measure of last resort after several notices are served to the Respondent State and after serving a formal notice in virtue of Article 46(4) which must be supported by two-thirds of the States represented within the Committee of Ministers. If the Court finds that there has been no violation, then the Committee of Ministers is expected to close the supervision and examination of the case. However, should there be a finding of a violation, then it would be up to the said Committee to determine the resulting measures which are to be taken. 5

Although the most severe implication of a violation of Article 46 is the expulsion from the Council of Europe, the intention behind this measure was to exert political pressure upon a Member State with the hope that this would be sufficient for the said State to comply with the Court’s judgment. Having said that, this Article has been triggered only once since its entry into force, that being in regard to the case of Ilgar Mammadov v Azerbaijan6 wherein the applicant, a member of the Azerbaijani political opposition remains in detention despite the Court’s 2014 judgment declaring his detention unlawful and the Council of Europe’s constant calls for his unconditional release.7 The procedure is still underway at the time of writing.

3. Achieving ECHR-Compliant Domestic Systems The ratification of the Convention was one of the most crucial elements during the Council of Europe’s enlargement process. Although in principle this was logical, one must also take into account that at that time many States were still paving the way for democratic reform and institution building, and thus this also meant that the presence of an effective human rights system of protection was 5

ibid, Article 46(4).

Mammadov v Azerbaijan App no 15172/2013 (ECHR, 22 May 2014).

COE News, ‘Committee of Ministers launches infringement proceedings against Azerbaijan’ (Strasbourg, 5th December 2017) <https://www.coe.int/en/web/portal/news-2017/-/asset_publisher/StEVosr24HJ2/content/council-of-europe-s-committee-of-ministers-launches-infringement-proceedings-against-azerbaijan?> accessed 20 July 2018.

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practically inexistent in a number of States. As a result and with the introduction of the individual right to petition in virtue of Protocol 11, the Court was faced with an excessive amount of applications which reflected Europe’s political and changing dimensions. Statistical data from the ECtHR suggests that States which are perceived to have the most effective human rights protection systems have the lowest amounts of admissible applications per capita.8 The scope behind the publication of such data is to serve as indirect pressure on States to improve their domestic systems in a manner which harmonises national development with that of the ECHR’s. Reference must also be made to the Brussels Declaration, which highlighted the shared responsibilities of the Contracting States, the Court and the Committee of Ministers in safeguarding the full and proper implementation of the Convention. 9 It emphasised the friendly and cooperative approach which the said actors are to adopt with the Respondent State. The wording used in the Declaration referred to ‘bilateral dialogue’ and this suggests an equal footing in the sense that both the Council of Europe’s actors and the Respondent State have a say in the effective implementation of the Convention and in the execution of judgments through the established procedures. Although one can argue that there isn’t a single uniform relationship between the States and the Court, the majority enjoy a somewhat open-ended relationship characterised by dialogue and exchanges on the best means of achieving ECHR-compliant mechanisms whilst also respecting the notions of the margin of appreciation and of subsidiarity. In this regard, one can therefore argue that due to the fact the rights provided by the Convention have evolved beyond their literal wording, the aforementioned actors have indulged in an ‘interactive social processes’ so as to keep up with contextual changes. 10

Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems (Yale Law School 2008) p 692-693.

Brussels Declaration drawn up at the High-level Conference meeting in Brussels 26th and 27th March 2015 <https://www.echr.coe.int/Documents/Brussels_Declaration_ENG.pdf> accessed 10 July 2018.

10 Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems (Yale Law School 2008) p 678.

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In light of this, the role of the Court can be said to be threefold: primarily, it grants individuals an opportunity to seek justice after the domestic remedies have been exhausted. One must clarify that the ECtHR is not a court of ‘third appeal’ and its role is to ascertain whether the ECHR has been respected or not. Secondly, it identifies anomalies and violations within national systems, and assists States in achieving an ECHR-complaint domestic order. Thirdly, it identifies any existing gaps between the national and European human rights systems which can be the product of non-homogeneous interpretations and of the evolution of Convention rights. It is up to the Court to recognize the sectors from which a large amount of cases stem from in a particular State in order to determine whether there is a need to address a particular systemic failure. In such a case, the Court assumes an additional role of a preventer of potential similar applications if it successfully identifies and assists the particular State in addressing its shortcomings.11 Therefore, the greatest challenge is to achieve the highest standard of respect possible, whilst at the same time respecting the Contracting States’ diverging opinions, traditions and systems. For this purpose, one of the roles of the Council of Europe’s institutions is to engage in dialogue with the national authorities so as to determine the best manner in which systemic violations are to be remedied. One must thus highlight the utmost significance of the principle of subsidiarity in allowing the States to arrive at an acceptable measure on their own, albeit through guidance on what would be deemed to be an acceptable and ECHR-compliant. This must be done through an indication rather than a dictation of what measures should be taken; in this manner, the Respondent State is afforded a certain degree of manoeuvre through which it could address the root causes by taking into consideration its national characteristics and circumstances. This dialogic relationship is imperative for the Respondent State not to feel that its sovereignty is being encroached.

11 In virtue of Rule 61 of the Rules of the Court on the Pilot Judgment Procedure as introduced in February 2011.

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4. Reconciling Different Interpretations of the Same Convention One can also question the degree to which there exists the doctrine of binding precedent within the ECtHR’s case-law and whether it is feasible for the Court to give uniform sentencing in light of the diverse jurisdictions and legal traditions of the Contracting Parties. The issue with being bound by precedent is that even if the facts of two cases are identical (which is rarely the case), it might very well be that two States have completely different interpretations of the ECHR provision with respect to which both States could be acting lawfully within their national jurisdiction. The problem would therefore be the extent to which individuals are truly entitled to equal rights and freedoms irrespective of which State they are in, and thus, the viability of an international court such as the ECtHR to ensure uniformity in its sentencing and in its protection of fundamental rights in spite of varying national contexts. This matter is tightly connected to the principle of margin of appreciation which grants States room for manoeuvre in holding on to their cultural, historical and/or constitutional traditions, and is perceived as both a blessing and a curse since it is often the only ‘card’ which States could resort to in defending domestic legislation, provided that they are still acting within the perimeters of the Convention. Since national mechanisms are at the scrutiny of the ECtHR, it is in the States’ interest to ensure not only a high standard of human rights protection in line with the Convention, but also that the ECtHR’s reasoning in judgements is followed. This is especially so for constitutional courts whose authority may be weakened by the ECtHR if a violation is found when the former would not have found a violation. The qualified rights found within Article 8 to 11 and 14 are often the most problematic since they require a careful analysis and interpretation of proportionality, and it is the ECtHR’s responsibility to assume the role of a ‘fine-tuner’ in these provisions. In this sense, the concept of proportionality was introduced with a view to balancing the States’ freedom in virtue of the notions of 452

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subsidiarity and margin of appreciation. This was addressed through the element of ‘necessity’ which limits the derogations from the aforementioned rights and examines whether the States in question have struck the right balance between competing rights and interests.12 Conflicting interpretations of the ECHR provisions by different Member States become even more perplexing when sensitive matters are under examination, which were not expressly provided for in the text of the Convention and which have only come into being through the interpretation of the Convention as a ‘living instrument.’13 This interpretation, which is constantly developing in parallel with societal changes, trumps the maxim ubi lex voluit dixit, ubi noluit tacuit since the drafters of the Convention would not have foreseen certain advancements and developments. For instance, despite the inexistence of electronic communications and contents at the time when the Convention was drawn up, the Court still found a violation of Article 8 in Bărbulescu v Romania when an employee was dismissed following the monitoring of his electronic communications and contents therein. The Court determined that the State had failed to protect the applicant’s right to privacy, and that it had also failed to strike a fair balance between the diverging interests since the domestic courts did not assess the extent of the intrusion into the individual’s private life.14 The concept of interpreting the Convention as a ‘living instrument’ does not only imply a wider interpretation, but also that new rights are recognised if there is a perceived ‘emerging consensus’ in recognition of a new right. 15 This, however, is a cause for concern for States who do not form part of the ‘emerging consensus’ since they would need to either raise their human rights standard accordingly, or bring forward convincing arguments in favour of their margin of appreciation and 12

Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems (Yale Law School 2008) p 700. 13

Tyrer v UK App no 5682/72 (ECHR, 25 April 1978).

Bărbulescu v Romania App no 61496/08 (ECHR, 5 September 2017).

Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems (Yale Law School 2008) p 702.

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against the ECtHR’s interpretation and the emerging consensus. Achieving across the board uniformity in such instances is close to impossible since more liberal States are more likely to advance their legislation than others thereby creating a situation wherein an action can be perceived as a right in one European State and simultaneously a crime in another. This is best depicted through reproductive rights in Europe, most notably abortion which is legal (and considered to be a human right) in the vast majority of the Member States of the Council of Europe, but still prohibited in Malta and San Marino. Whilst the ECHR does not explicitly mention a right to abortion, a new branch of Sexual and Reproductive Health Rights appears to encompass such a right in virtue of Article 8, and the failure to safeguard it could constitute a violation of human rights.16 Despite being restricted and at times prohibited in a small number of Council of Europe Member States, the Court still found a violation of Article 8 when individuals were not granted access to information to make an informed decision as to whether to have an abortion or not.17 On the other hand, in the case of A B C v Ireland, the Court had a slightly greater challenge in determining whether there had been a violation of Article 8 or not for the applicants living in Ireland who had to travel to the UK for an abortion due to the difficulty and almost impossibility of getting an abortion in Ireland. Since at the time the Irish Constitution only permitted an abortion if there was a risk to the mother’s life, a violation was found for one of the applicants who suffered from cancer, but not for the other two applicants who did not establish that they had a right to a legal abortion in line with the Irish law or through the medical services in Ireland.18 Whereas the wide majority of the Council of Europe’s Member States permit abortion to one degree or another, the complete opposite can be said for the right to die. In Haas v Switzerland, the Court pointed out that although a number of Contracting Parties 16 Tysiac v Poland App 5410/03 (ECHR, 20 March 2007); R.R. v Poland App no 27617/04 (ECHR, 26 May 2011); P. and S. v Poland App no 57375/08 (ECHR, 30 October 2012). 17

Tysiac v Poland App 5410/03 (ECHR, 20 March 2007); R.R. v Poland App no 27617/04 (ECHR, 26 May 2011).

A., B., and C v Ireland App no 25579/05 (ECHR, 16 December 2010).

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recognise assisted suicide and some have even decriminalised it, the vast majority of States are still reluctant to recognise it as a right and they are far from achieving consensus on the matter. The Court also appears unwilling to delve into the merits of whether there exists the right to die or not, and reiterates that this a matter for the national courts to determine. This was confirmed in Koch v Germany where although the Court found a violation in terms of the procedural aspects of Article 8, it did not address the merits of the case.19 A more recent controversial case is that of Gard and Others v UK in which a baby suffered from a fatal rare genetic disease. Whilst the hospitals had requested that his artificial support be withdrawn, the parents requested that their son undergoes experimental treatment in the United States of America. In declaring the application inadmissible, the Court once against referred to the State’s wide margin of appreciation especially in matters which raise ‘sensitive moral and ethical issues.’20

5. Pilot Judgments: Light at the end of the tunnel? Following the enlargement of the Council of Europe and the possibility of the individual’s right to petition, the Court was faced with an ever-increasing number of applications. Apart from inadmissible cases, the Court recognised the existence of repetitive or clone cases in which a violation was the result of a systemic anomaly in the national system. It was therefore imperative to develop a system in which such violations and systemic flaws were not only recognised and addressed through individual measures, but also through general measures with the aim of preventing further potential cases. In this light, the procedure of pilot judgments was introduced during the discussions and negotiations on Protocol 14, and Rule 61 was later included in the Rules of Court Procedure stating that,

‘the Court shall in its pilot judgment identify both 19 Koch v Germany App no 497/09 (ECHR, 19 July 2012) ; Lambert and Others v France App no 46043/14 (ECHR, 5 June 2015). 20

Gard and Others v United Kingdom App 39793/17 (ECHR, 27 June 2017).

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the nature of the structural or systemic problem or other dysfunction as established as well as the type of remedial measures which the Contracting Party concerned is required to take at the domestic level by virtue of the operative provisions of the judgment.’21 In Broniowski v Poland, a case concerning Article 1 Protocol 1, a systemic violation was defined as a:

‘shortcoming as a consequence of which a whole class of individuals have been or are still denied the peaceful enjoyment of their possessions .[… and that] the deficiencies in national law and practice identified in the applicant’s individual case may give rise to numerous subsequent well-founded applications.’22 Lack of clarity still surrounds the establishment of the pilot judgment procedure since some are of the opinion that this should have been made through an amendment to the Convention rather than through a wide interpretation of Article 46. Reference must be made to the Dissenting Opinion of Judge Zagrebelsky in the case of Hutten-Czapska v Poland wherein he pointed out that the pilot judgment procedure and the related discussions which had previously taken place had not been included in the content of Protocol 14, and that moreover the ‘nature, composition and responsibilities [of the Committee of Ministers] are entirely different from those of the Court, which reflect the latter’s judicial function.’23 Although not officially stated, the Broniowski case is said to be the first pilot judgment since it not only contained all the characteristics of a pilot judgment but also due to the fact that through the reference of the case to the Committee of Ministers, the two Council of Europe organs managed to reach a friendly settlement. This meant 21

Rule 61, Rules of Court Procedure <https://www.echr.coe.int/Documents/Rules_Court_ ENG.pdf> accessed 31 July 2018.

Broniowski v Poland App 31443/96 (ECHR, 22 June 2004).

Hutten-Czapska v Poland App 35014/97 (ECHR, 19 June 2006), Partly Dissenting Opinion of Judge Zagrebelsky.

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that through a single case (Broniowski v Poland), the Committee of Ministers and the Court had also addressed the almost two hundred pending applications on the same matter as well as the tens of thousands of potential applications. In practice, when the ECtHR establishes that there is a structural or systemic violation which will most likely give rise to further violations, the Court, ex officio or at the request of either party, may establish that it is a pilot judgment; however, the Court is not explicitly bound to declare that a case is a pilot judgment in order for it to address systemic violations through general measures. In virtue of the principle of subsidiarity, the national authorities would be in a position to amend the problematic issue in a manner which they deem best in virtue of their expert knowledge of the domestic system provided that it is compatible with the Convention. In HuttenCzapska, Judge Zagrebelsky reiterated the Court’s argument that ‘the State remains free to choose the means by which it will discharge its obligations arising from the execution of the Court’s judgment’ and emphasised that it is a political realm in which the Court has no jurisdictional competence. 24 Due to the utmost importance of pilot judgments and the impact which they could have on both the domestic system as well as the ECtHR’s caseload, pilot judgments are treated with high priority in accordance with Rule 41.25 One must also bear in mind that the chief role of the pilot judgment system is to assist the national authorities to remedy their structural shortcomings in order to safeguard the Convention’s application. In the aforementioned Hutten-Czapska case, the Court stated that,

‘… the pilot-judgment procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned their Convention rights and freedoms 24

Hutten-Czapska v Poland App 35014/97 (ECHR, 19 June 2006) para 239.

In terms of Rule 61(2)(c) of the Rules of the Court, <https://www.echr.coe.int/Documents/ Rules_Court_ENG.pdf> accessed 31 July 2018.

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as required by Article 1 of the Convention, offering to them more rapid redress.’26 Accordingly, the Court freezes the somewhat identical cases which come before it in the interim period during which the national authorities would be amending the legislation and practices. Whilst this helps address the huge backlog of cases before the ECtHR as well as the national authorities who would not be ordered to address further individual measures if a violation is found, it might be detrimental to the individual applicant since justice is delayed further.

6. The Constitutional Dimension Over the years, many have questioned the extent to which one could argue that the ECHR and the ECtHR bear constitutional characteristics. In fact, what instigated this debate was a reference by the Court in the preliminary objections of the Loizidou case that the ECHR is a ‘constitutional instrument of European public order.’27 Primarily, one could argue that the intention of the writers of the Convention can be inferred from the context in which it was written, that is in the aftermath of a world war and the strong presence of authoritarian regimes. In this light, the intention was more to establish a document in which fundamental rights and freedoms are guaranteed and to promote European unity, rather than to be perceived as a European constitution. Moreover, in principle, a constitution should reflect a State’s legal and political order in accordance with the said State’s history, culture and traditions, and it thus follows that in view of the fact that European legal and political structures are far from homogenous, the idea of a European constitution is hardly possible. With reference to the Court, one of the main roles of a constitutional court is to declare the unconstitutionality of any existing laws falling

26 27

Hutten-Czapska v Poland App 35014/97 (ECHR, 19 June 2006) para 234.

Loizidou v Turkey App no 15318/89 (ECHR, 23 March 1995) para 75.

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foul of the constitution. Strictly speaking, the ECtHR is unable to do this since the Court often addresses violations through individual measures. However, with the introduction of general measures and the identification of systemic violations, the ECtHR is now able to identify and guide national authorities in amending their anomalies so as to achieve an ECHR-complaint domestic system. Moreover, with the incorporation of the ECHR into the national legal orders, the Court has also gained indirect access to such matters. However, one must bear in mind and emphasize that this is a result of the principle of subsidiarity rather than constitutionalism. In virtue of the permanent effects of the Convention, decisions given by national Constitutional Courts could be strengthened further if references are made to the Convention and to the Court’s case-law. The complete opposite was argued in the case of Borg v Malta, where the applicant argued that the Maltese Constitutional Court’s interpretation of the right to legal assistance during police interrogation in terms of the Salduz judgment ran counter to the Convention.28 Despite several Court judgments on the matter, the Maltese Constitutional Court seemed reluctant to adopt the ECtHR’s reasoning, and instead reiterated its own jurisprudence on attaching the entitlement to such a right to the vulnerability criteria. In Borg v Malta, the Court found a violation of Article 6(1) and Article 6(3) due to the systemic restriction which denied the right to legal assistance prior to trial. In this case, Judge Pinto de Albuquerque criticised the Maltese Constitutional Court for picking and choosing elements of the Court’s principles, and argued that this practice would be detrimental to the overall working of the Convention and Court system. He stated that,

Were the principle of the subsidiarity of the Court’s review to be amenable to such discretionary manipulation of the Court’s case-law, the Court would be downgraded to the position of a mere commission 28

Borg v Malta App no 37537/13 (ECHR, 12 January 2016).

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tasked with recommending to the Contracting Parties to the Convention the steps they could possibly take for the protection of human rights and fundamental freedoms, the States remaining free to take into consideration convenient judgments and to ignore inconvenient judgments delivered by this Court.29 This embodies the responsibility of the organs of the Council of Europe in ensuring that each judgment of the ECtHR is properly implemented and executed, and that problematic issues are thus identified and remedied. The nature of the judgments of the Court are no longer merely declaratory, but are utilised to ensure ECHRcompatible domestic legal systems. For this reason, a close relationship between the national Constitutional Courts and the ECtHR would demonstrate not only the fact that ultimately the former are the guardians of the Constitution, tasked with the protection of fundamental rights and freedoms, but that the said courts also merge the national and European human right systems.

7.The Impact of ECtHR judgments on the Maltese legal system It is impossible for Contracting States to maintain an ‘insular, autonomous, self-defined legal systems’30 due to the widespread effects which both the Convention and Court have on their legal systems. The ECHR’s living dimension is not solely moulded by the Court’s interpretations and judgments since the Council of Europe has also contributed significantly through supplementary instruments addressing not only new rights, but also institutional reform, applicability and jurisdiction, and application procedures. With reference to the addition of new rights through Protocols, 29 Borg v Malta App no 37537/13 (ECHR, 12 January 2016), Partly Concurring and Partly Dissenting Opinion of Judge Pinto de Albuquerque, para 10. 30

Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems (Yale Law School 2008) p 677.

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one must refer to Protocol 1 which gave rise to a large number of cases and which is extremely significant for the domestic context since a number of Maltese cases concerned violations of Article 1 Protocol 1.31 These cases concern the expropriation of plots and inadequate amounts of compensation given to the applicants which did not reflect current market values as well as requisition cases in which low rents were offered to the landlords and which also did not reflect the true market value.32 As a result, recent amendments entered into force in August 2018 in order to address the general measures identified in a number of ECtHR judgments. Amongst other matters, the amendments provide for an increase in the rent to a maximum of 2% of the property’s freehold value, allow landlords to demand an examination into whether the tenants are still in need of the properties in question or whether they hold alternative properties which could be utilised, and introduced changes to band club leases.33 Another matter which gave rise to a number of Court judgments against Malta was the unlawful detention of irregular migrants. Until a few years ago, all irregular migrants arriving in Malta were placed in detention upon arrival, often for months on end, until either their asylum determination process was concluded or indefinitely until they could be deported. The ECtHR found that this constituted a violation of Article 5(4) 34, identified the Maltese immigration laws and policies as a systemic violation and considered it ‘necessary, in view of its finding of a violation of Article 5(4), to indicate the general measures required to prevent other similar violations in the future.’35 With reference to the lack of a speedy remedy in terms of Article 31 Edwards v Malta App no 17647/04 (ECHR, 24 October 2006); Fleri Soler and Camilleri v Malta App no 35349/05 (ECHR, 26 September 2006) ; Ghigo v Malta App no 31122/05 (ECHR, 26 September 2006). 32

European Court of Human Rights Press Unit, ‘Press country profile: Malta’ <https://www. echr.coe.int/Documents/CP_Malta_ENG.pdf> accessed 29 July 2018. 33

Housing (Decontrol) Ordinance (Amendment) Act 2018, Act no XXVII of 2018, <justiceservices.gov.mt/DownloadDocument.aspx?app=lp&itemid=29167&l=1> accessed 4 August 2018.

Aden Ahmed v Malta App no 55352/12 (ECHR, 23 July 2013); Suso Musa v Malta App no 42337/12 (ECHR, 23 July 2013); Louled Massoud v Malta App no 24340/08 (ECHR, 27 July 2010).

Suso Musa v Malta App no 42337/12 (ECHR, 23 July 2013) para 122.

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5(4), the Court stated that there must be a domestic mechanism which safeguards the relevant procedures and which would enable individuals to challenge the lawfulness of detention, have the case decided within ECHR-compliant time-limits, and for the length of detention to be closely connected with the applicable ground of detention. Although the State is not obliged to provide free legal assistance in detention cases, the absence thereof suggested inaccessibility to the domestic remedy. As a result, the Maltese immigration policies and legislation were amended which abolished the practice of automatic detention of irregular migrants. The amendments introduced a case by case assessment prior to ordering the detention of migrants, the length of detention was significantly reduced, and also added the requirement that detention must be closely linked to the ground necessitating detention. The length of asylum procedures was significantly reduced through the recruitment of additional staff within the Office of the Refugee Commission and through better management of resources.36

8. Conclusion In conclusion, one could argue that full and proper execution of ECtHR judgments is only possible if both the Respondent State as well as the Council of Europe work in tandem. However, the extent to and the manner in which the Court can assist States is limited to guidance rather than through forceful imposition. This reflects the utmost significance of the principle of subsidiarity and the role of Respondent State as a determiner of what would constitute a domestically acceptable remedy in accordance with its legal context. Having said that, the situation has changed over the last few years since the Court is now capable of addressing systemic violations through general measures in order to not only amend non-ECHR compliant laws and policies, but to also tackle similar pending and potential cases. 36

Immigration (Amendment) Act, 2015. <justiceservices.gov.mt/DownloadDocument.aspx?app=lp&itemid=24475&l=1> accessed 21 July 2018.

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To some extent, the ability of effecting change constituted a step towards the transformation of the ECtHR into a constitutional court, albeit being unable to expressly declare the unconstitutionality of laws or policies. As a result of several ECtHR judgments against Malta, the Maltese domestic system has undergone much needed and long overdue changes in a number of sectors which had generated challenging ECtHR cases. In this light, one could safely conclude that through the guidance of the Court and through the national authorities’ sound knowledge of the local context, Malta has managed to put in place and implement ECHR-compliant amendments which not only addressed the individual measures in the ECtHR cases from which they stemmed, but also addressed and prevented the emergence of similar cases.

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International Space Law

Il-Liġi Spazjali: il-passat, il-preżent u l-futur

Dr. Eliza Borg Rizzo

Dr. Eliza Borg Rizzo obtained her Doctorate in Law from the University of Malta in 2013 after writing her thesis on the legal obligations of the Armed Forces of Malta with respect to the Safety of Life at Sea. That same year, she was awarded a full scholarship by the United Nations International Maritime Organisation (IMO) to attend the IMO International Maritime Law Institute (IMLI) where she obtained her Masters degree in International Maritime Law. She wrote her dissertation on Global Warming and its Effects on the Arctic while also drafting an implementation instrument for the OPRC and OPRC-HNS into Maltese law. She graduated from IMLI in 2014 with distinction and went on to attend the 102nd Legal Committee held at the IMO headquarters in London. She has since worked as a legal practitioner with GS Advocates and has recently started her own independent legal practice.

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Daħla 1.1 L-Istorja

l-miti u l-leġġendi ta’ diversi kulturi fl-istorja tal-bniedem juruna kif l-ispazju kien minn dejjem punt ta’ interess għalina l-bnedmin. Ħafna minn dawn l-istejjer iddeskrivew vjaġġi lejn korpi ċelestjali u l-effett ta’ tali korpi fuq il-benessere tal-umanità. Il-pjaneti kienu minn dejjem jintużaw bħala mezz ta’ navigazzjoni għall-baħħara, u għadhom sal-ġurnata tal-lum jintużaw għannavigazzjoni permezz tas-sistema tal-‘Global Navigation Satellite System’. Fis-seklu sittax, Nikolaus Copernicus wera provi li fil-verità d-dinja tagħna ma kinitx fiċ-ċentru tal-univers, u wera wkoll irrelazzjoni importanti bejn id-dinja tagħna u l-qamar. L-istudju tiegħu serva bħala bażi sabiex xjentisti u matematiċi oħra setgħu jkomplu jiżviluppaw l-għarfien dwar l-ispazju. Isaac Newton u r-riċerka tiegħu dwar l-effetti tal-gravità fuq oġġetti fl-orbita, u Johann Kepler u l-istudju tiegħu dwar it-teoriji matematiċi li jiggvernaw tali korpi fl-orbita, servew bħala l-bażi tal-ivvjaġġar talbniedem lejn l-ispazju. Ir-referenza lejn dawn l-istudji għadu jsir salġurnata tal-lum. Mingħajr dawn l-iskoperti xjentifiċi ma jkunu saru l-ebda żviluppi legali f’dan il-qasam tal-liġi internazzjonali. L-iżvilupp tal-liġi spazjali sar in linea mal-iżvilupp xjentifiku u teknoloġiku. Wieħed irid ukoll jinnota li apparti mix-xjenza, l-aspett militari kellu wkoll ħafna x’jaqsam mal-iżviluppi tal-liġi internazzjonali tal-ispazju.

1.2 It-Tieni Gwerra Dinjija Ir-rocket V-2 (Vergeltungswaffe 2) tal-armata Ġermaniża waqt it-tieni gwerra dinjija kien l-iktar żvilupp militari importanti għallqasam tal-liġi internazzjonali tal-ispazju. Avolja r-rocket V-2 kellu 466

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valur militari limitat ħafna, huwa sar magħruf bħala l-ewwel strument spazzjali vijabbli fil-qasam tar-rocket science.1 L-avvanzi tar-rocket science u l-iżviluppi tal-avjazzjoni internazzjonali flimkien qajmu tħassib dwar ir-regolazzjoni talavjazzjoni u tal-arja. B’hekk din it-tema ġibdet l-attenzjoni ta’ uffiċjali tal-gvern u kmandanti militari u kif ukoll tal-akkademiċi u l-avukati.

1.3 L-iSpace Race Meta ntemmet it-tieni gwerra dinjija, numru ta’ xjentisti Ġermaniżi flimkien ma’ ħafna mit-teknoloġija tagħhom ġew maqbuda mill-Unjoni tar-Repubbliki Soċjalisti Sovjetiċi (URSS) u mill-Istati Uniti (IU). Dan kollu wassal għall-iSpace Race2. L-iSpace Race (19571975) bdiet oriġinarjament minħabba fl-iżvilupp tal-missili u saret tissimbolizza l-kompetizzjoni bejn l-URSS u l-IU għad-dominanza talispazju waqt il-Cold War. Dan kien għalihom simbolu tan-neċessità tas-sigurtà soċjali u kif ukoll simbolu ta’ prestiġju. L-iSpace Race tat lok għal sforzi pijuniera għat-tnedija ta’ satelliti artifiċjali u għall-vjaġġ tal-bniedem madwar id-dinja u lejn il-qamar. Eżempju ċar tal-influwenza tal-iSpace Race huwa t-tmexxija talproġett tal-URSS li nieda lil Sputnik I sabiex l-Unjoni tkun tista’ teduka ruħha dwar dak kollu li għandu x’jaqsam mal-atmosfera. Dan il-proġett biddel il-ħolma tal-esplorazzjoni spazjali f’realtà.3 Għaddew biss erba’ snin minn din it-tnedija sakemm Yuri Gagarin akkwista t-titlu tiegħu bħala l-ewwel bniedem li orbita d-dinja fl-ispazju. Ftit wara, il-bniedem rifes fuq il-qamar għall-ewwel darba.4 Mil-lat tal-liġi internazzjonali tal-ispazju Sputnik I kellu rwol importanti ħafna x’jilgħab peress li dan il-proġett ġibed l-attenzjoni 1 Wolff M. J. ‘Peaceful uses’ of outer space has permitted its militarization: does it also mean its weaponization?, 2003, p.4. 2

Ibid. 2, p. 7.

Ibid. 2, pg. 3.

Ibid. 1, pg. 6.

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internazzjonali ta’ akkademiċi u avukati mid-dinja kollha u kif ukoll tal-organizzazzjonijiet internazzjonali bħalma hija n-Nazzjonijiet Uniti (NU). Di fatti l-Istati Uniti ħeġġew lin-NU sabiex tassigura li l-esplorazzjoni tal-ispazju jsir biss b’għan paċifiku u mhux b’wieħed militari.5 Kien di fatti eżatt wara t-tnedija ta’ Sputnik I li n-NU ħarġet bir-Reżoluzzjoni 1148 (XII) tal-erbatax ta’ Novembru tas-sena elf disa’ mija sebgħa u disgħin.6 Dan iż-żmien ta’ rivalità laħaq il-quċċata tiegħu mal-Proġett tatTest Apollo-Soyuz fix-xahar ta’ Lulju tas-sena elf disa’ mija ħamsa u sebgħin. Avolja tali proġett taffa naqra mir-rivalità bejn iż-żewġ nazzjonijiet, l-iSpace Race baqgħet simbolu tal-Cold War u, fl-istess ħin, taż-żmien li fih sar l-akbar avvanz fl-iżvilupp tax-xjenza spazjali u konkorrenti tal-liġi internazzjonali tal-ispazju.7

2. L-Iżvilupp tal-Liġi Internazzjonali Dwar l-Ispazju 2.1 Il-Bżonn ta’ Liġi Universali Nonostante l-eventwali paċifikazzjoni bejn l-Istati Uniti u l-Unjoni tar-Repubbliki Soċjalisti Sovjetiċi, l-esperjenza tal-iSpace Race flimkien mal-konkorrenti avvanz tal-bniedem fix-xjenza qajmu ħafna diskussjonijiet dwar il-bżonn ta’ sistema kompleta u indipendenti legali mfassla speċifikament għall-bżonnijiet tax-xjenza u l-użu inġenerali tal-ispazju. L-għan aħħari kien li jintlaħaq bilanċ bejn l-avvanzi xjentifiċi u l-protezzjoni tar-riżorsi tal-ispazju bħala riżorsi erga omnes.

Christol Q. C., The modern international law of outer space, 1982, p. 13.

Ibid. 1, pg. 6.

Lee R., Reconciling International Space Law with the commercial realities of the 21st century, 2000, p.194.

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2.2 Il-Wirt Komuni tal-Umanità, l-Interessi Komuni u t-Territorjalità 2.2.1 Il-Wirt Komuni tal-Umanità u l-Interessi Komuni Wieħed ma jistax jitkellem dwar ir-riżorsi erga omnes u l-protezzjoni ta’ tali riżorsi mingħajr ma jaħseb fil-liġijiet internazzjonali marittimi u speċifikament fil-United Nations Convention on the Law of the Sea (UNCLOS). Arvid Pardo, il-protagonista ta’ dan il-progress legali, qiegħed lil Malta fil-qalba tal-qasam tal-liġi internazzjonali. Fis-sbatax ta’ Awwissu tas-sena elf disa’ mija sebgħa u disgħin, Malta mmexxija minn Dr Arvid Pardo, resqet quddiem in-Nazzjonijiet Uniti bi proposta li wasslet għall-adozzjoni tal-UNCLOS fis-sena elf disa’ mija tnejn u disgħin. Għal din ir-raguni, Malta hija kkunsidrata bħala l-pijuniera tal-UNCLOS u dak kollu li ġie żviluppat fil-futur filqasam tal-liġi marittima minħabba fiha. 8 Di fatti, id-duttrina tal-wirt komuni tal-umanità twieldet permezz tal-UNCLOS, hekk sabiex l-art ta’ taħt il-baħar u s-sub-ħamrija tiegħu jibdew jintużaw għal skopijiet paċifiċi u għall-benefiċċju tal-umanità kollha. Il-liġi internazzjonali marittima u dik dwar l-ispazju kellhom ħafna influwenzi komuni waqt l-iżvilupp tagħhom. Kien hemm minn dejjem it-tendenza illi l-liġi tal-baħar u tal-avjazzjoni jiġu applikati għall-iżvilupp tal-liġi spazjali. Per tali applikazzjoni tista’ biss issir limitatament għaliex l-ispazju huwa qasam partikulari wisq sabiex wieħed jaqbad japplika qasam ta’ liġi oħra in toto. Emile Laude kienet waħda min-nies li saħqet illi hemm bżonn ta’ liġi speċjali sabiex jiġi rregolat dak kollu li għandu x’jaqsam mal-ispazju.9 Nonostante dan, bħal mhuwa wkoll il-każ tal-ibħra internazzjonali u tar-riżorsi tal-qiegħ tal-baħar, dak kollu li jista’ jiġi sfruttat millispazju huwa ta’ kull bniedem irrispettivament min-nazzjonalità 8

Malta Foreign Affairs, ‘50 Years Since Malta Pioneered UNCLOS’ <https://foreignaffairs. gov.mt/en/Government/Press%20Releases/Pages/50-years-since-Malta-pioneered-UNCLOS. aspx>, 10 ta’ Novembru 2018.

Lyall F., Larsen B.P., Space Law: a Treatise, 2009, p. 5.

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tiegħu jew tagħha. Però, importanti li wieħed jinnota illi preżentament il-prinċipju tal-wirt komuni tal-umanità japplika biss għall-qamar u għall-iġsma ċelestjali oħra10, waqt li l-kunċett tal-interess komuni japplika għall-ispazju inġenerali.11 Dan ifisser illi żewġ sistemi legali differenti jeżistu konkorrentament fil-liġi tal-ispazju. Din issitwazzjoni legali tħalli lok għall-konfużjoni.

2.2.2 Il-Kunċett Territorjali Il-ġurist Ġermaniż Lassa Francis Lawrence Oppenheim huwa magħruf bħala wieħed mill-missirijiet tad-dixxiplina moderna talliġi internazzjonali. Huwa qal li ‘a State without a territory is not possible’. Dan ma jfissirx li t-territorjalità hija element neċessarja filliġi internazzjonali, iżda biss li pajjiż ma jistax ikun pajjiż mingħajr it-territorju tiegħu.12 Għal żmien twil l-akkwist tat-territorju kien wieħed mill-iktar oqsma kkontestati fil-liġi internazzjonali. Il-kunċett tat-territorjalità nbidel ħafna miż-żminijiet medjevali u l-kunċett tal-ius gentium. Oppenheim qal li, ‘when Grotius laid the foundations of modern international law, state territory was still, as in the Middle Ages, more or less identified with the private property of the monarch of the state’.13 Qabel kienu jużaw il-kunċetti tal-Liġi Rumana għall-akkwiżizzjoni ta’ kull tip ta’ territorju, kemm privat u kemm fl-isfera internazzjonali. Nonostante l-fatt li żammejna ħafna mit-terminoloġija tal-Liġi Rumana, illum il-ġurnata għall-akkwiżizzjoni tat-territorju fil-liġi internazzjonali japplikaw regoli differenti ħafna minn dawk li jinsabu fil-liġi Rumana u fil-liġi privata. Pereżempju, il-liġi internazzjonali 10

Artiklu 11 tal-Moon Agreement.

Artiklu 1 tal-Outer Space Treaty.

L. Oppenheim, International Law. A Treatise, Vol. 1, 8th ed (H. Lauterpacht ed.), London 1955, p. 451

Yehuda Zvi Blum, Historic Titles in International Law (The Hague, Netherlands: Martin Nijhoff, 1965), p. 1.

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moderna ma tiddistingwix bejn l-akkwiżizzjoni ta’ territorju u l-akkwiżizzjoni tas-sovranità.14 Fil-passat, il-monarka setgħet taqbad titrasferixxi l-art lill-monarka ieħor (patrimonium). Eżempju ieħor huwa kif illum il-ġurnata t-territorju ta’ pajjiż ma jistax jiġi akkwistat permezz taż-żwieġ.15 Jekk wieħed jikkunsidra l-problemi riċenti dwar it-territorji tal-Artiku u l-Antartiku u l-pretensjonijiet territorjali fuqhom, flimkien mal-problemi li affaċjajna waqt id-delimitazzjoni tal-konfini territorjali fuq il-baħar u dak kollu li jgħix go fih ’il fuq minn qiegħ ilbaħar, wieħed jifhem kif din l-esperjenza qajmet ċertu tħassib dwar itterritorju tal-ispazju u tar-riżorsi kollha tiegħu waqt l-iżvilupp inizjali tal-liġi internazzjonali spazjali. Dan it-tħassib għadu jikkonċernana sal-lum.

3. Is-Sitwazzjoni Legali Preżenti 3.1 Id-definizzjoni Saru ħafna tentattivi sabiex jintlaħaq ftehim dwar definizzjoni universali li tkun tista’ tfisser il-veru sens tal-Liġi Internazzjonali Spazzjali, iżda kull tentattiv ġie mfixkel. Waħda mill-akkademiċi l-iktar prominenti fil-qasam tal-liġi internazzjonali dwar l-ispazju huwa Manfred Lachs li fis-sena elf disa’ mija tnejn u disgħin ippropona s-segwenti definizzjoni: ‘Space law is the law meant to regulate relations between States to determine their rights and duties resulting from all activities directed towards outer space and within it – and to do so in the interest of mankind as a whole to offer protection to life, terrestrial and nonterrestrial, wherever it may exist’.16 Waqt l-isforzi li saru sabiex tinstab definizzjoni unanima, waħda 14

N. Hill, Claims to Territory in International Law and Relations (1945), p. 143; J.H.W. Verzijl, International Law in Historical Perspective, Part III: State Territory (1970), p. 298-325. 15

H. Lauterpacht, Private Law Sources and Analoġies of International Law (1927), vii, p. 37, 91.

Lachs M., The law of outer space - An experience in contemporary law-making, 1972, p. 33.

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mill-ewwel u l-akbar problemi li kellhom jaffaċjaw l-akkademiċi kienet il-mistoqsija kruċjali dwar id-delimitazzjoni tal-ispazju ta’ barra u tal-ispazju tal-ajru.

3.1.1 Il-Problema tad-Delimitazzjoni Il-liġi internazzjonali toħloq distinzjoni bejn żoni nazzjonali u dawk internazzjonali u dan narawh mid-diskussjonijiet dwar l-ibħra internazzjonali, l-Antartika u l-ispazju. Il-liġi dwar iż-żoni internazzjonali tagħti importanza kbira lejn l-elementi tas-sovranità, tal-ġurisdizzjoni u tad-delimitazzjoni.17 Il-linja ta’ demarkazzjoni aerospazjali bejn l-ispazju tal-ajru u l-ispazju ta’ barra tifforma d-demarkazzjoni bejn l-arja nazzjonali u l-ispazju ta’ barra kif ukoll id-delimitazzjoni bejn l-arja internazzjonali u l-ispazju ta’ barra. Barra minn hekk, din hija demarkazzjoni bejn l-artijiet, l-ilmijiet u l-arja nazzjonali min-naħa, waqt li min-naħa oħra tikkostitwixxi delimitazzjoni bejn l-ibħra internazzjonali, ir-Regjuni Polari u l-ispazju ta’ barra.18 Il-Paris Convention on Aerial Navigation tas-sena elf disa’ mija u dsatax indikat l-estent tal-ispazju tal-ajru nazzjonali. Fl-ewwel artiklu tagħha din il-konvenzjoni tgħid li s-sovranità tal-arja nazzjonali testendi fuq iż-żoni nazzjonali kemm tal-art kif ukoll tal-baħar talpajjiż inkwistjoni, u dan ġie kkonfermat mill-Geneva Convention tassena elf disa’ mija tmienja u ħamsin fuq l-ibħra territorjali u ż-żona kontigwa.19 Nonostante dan, id-demarkazzjoni bejn l-ispazju tal-ajru u l-ispazju ta’ barra ma jimplikax neċessarjament li hemm ukoll distakk bejn illiġi tal-arja u l-liġi tal-ispazju. Jekk wieħed jieħu l-iSpace Shuttle bħala eżempju, wieħed jara kif hemm il-potenzjal għall-unifikazzjoni bejn il-liġi tal-arja u tal-ispazju. Tali Space Shuttle tissodisfa l-elementi 17

Kish J., The law of international spaces, 1973, p. 4 u 42.

Ibid.

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neċessarji tad-definizzjoni ta’ ‘vettura spazjali’ universalment aċċettata, u għalhekk tista’ tiġi kkunsidrata bħala vettura b’magna tarrokit misjuqa u kapaċi timxi fl-orbitu tad-dinja u fl-ispazju ta’ barra. Min-naħa l-oħra, peress illi kapaċi terġa` tidħol fl-ajru u kapaċi wkoll ta’ landing fuq l-art bħal kull aircraft normali, wieħed allura jistaqsi lilu nnifsu jekk fil-każ tal-iSpace Shuttle qegħdin nittrrattaw dwar il-liġi tal-arja jew dwar dik tal-ispazju. Mistoqsija interessanti hija jekk Space Shuttle tista’ tiġi kkunsidrata bħala Aircraft fis-sens ġenerali tagħha f’wieħed mill-istadji tal-missjoni tagħha biss u bħala space aircraft fl-istadji l-oħra.20 Bla dubju, hawnhekk jidħlu ħafna interessi nazzjonali flimkien mal-kunflitti bejn l-interessi nazzjonali u dawk internazzjonali. L-istorja tgħallimna li tali kunflitti jirriżultaw f’sitwazzjoni fejn ilpajjiżi jippruvaw jestendu l-limiti territorjali tagħhom fuq territorji internazzjonali u vice versa. Peress li r-reġimi internazzjonali u nazzjonali huma differenti ħafna minn xulxin, għal raġunijiet ta’ sigurta’ nazzjonali, kull pajjiż jitlob il-massimu fejn jiġi għall-ogħli talajru li fuqu għandu s-sovranita’. Dawn il-kunflitti huma amplifikati kull fejn jidħlu l-mistoqsijiet dwar l-ispazju ta’ barra.21 Saru numru ta’ tentattivi sabiex il-linja delimitattiva titfassal darba għal dejjem, pero` l-kontroversja delimitattiva għadha teżisti salġurnata tal-lum. Id-demarkazzjoni bejn l-ispazju tal-ajru u l-ispazju ta’ barra jibqa’ ostakolu kbir u kontroverżjali li jwaqqaf lill-esperti milli jsibu definizzjoni universali għall-ispazju ta’ barra.22 Huwa ta’ importanza kbira illi jinħolqu liġijiet adegwati sabiex jirreġolarizzaw l-ispazji nazzjonali u dawk internazzjonali.

3.2

L-Irwol

tan-Nazzjonijiet

Uniti

Ruwantissa I.R.A., Frontiers of aerospace law, 2002, p. 21.

Ibid. 15, p. 6.

Ibid. 17 p. 21.

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Internazzjonali dwar L-Ispazju In-NU hija organizzazzjoni internazzjonali li ġiet stabbilita wara t-tieni gwerra dinjija fis-sena elf disgħa mija ħamsa u erbgħin. Illum il-ġurnata in-NU hija l-ikbar organizzazzjoni internazzjonali fiddinja bl-għan aħħari illi tgħin sabiex jintlaħqu l-paċi u s-sigurta’ internazzjonali permezz tal-iżvilupp ta’ relazzjonijiet internazzjonali paċevoli. Hija tippromwovi l-progress soċjali, id-drittijiet ċivili u d-drittijiet umani, l-libertajiet politiċi u d-demokrazija. Inoltre, inNU tippromwovi u tiffaċilita l-iżvilupp tal-liġi internazzjonali u l-koperazjoni f’dan ir-rigward. In-NU ilha involuta fl-iżvilupp tal-attivitajiet spazjali mit-twelid tagħhom. Permezz tal-mekkaniżmi tagħha, bħalma huma l-United Nations Charter u l-Committee on the Peaceful Uses of Outer Space (UNCUPOUS), hija tiffunzjona bħala l-gwardjana tal-istruttura legali ta’ dak kollu li għandu x’jaqsam ma’ l-ispazju. In-NU introduċiet ħames liġijiet li flimkien jifformaw dak li llum aħna nafuh bħala l-Corpus Iuris Spatialis Internationalis, l-istruttura legali bażilari li tat lok għal kull żvilupp legali ieħor fil-liġi tal-ispazju ta’ barra. Il-Corpus Iuris Spatialis Internationalis jikkonsisti fissegwenti: l-Outer Space Treaty (1967), ir-Rescue Agreement (1968), il-Liability Convention (1972), ir-Registration Convention (1975) u l-Moon Treaty (1979).23 Fil-kuntest tan-NU wieħed irid ukoll isemmi r-riżoluzzjonijiet talAssemblea Generali tan-NU (AGNU) li ġew adottati bejn is-sena elf disgħa mija disgħa u ħamsin u elf disgħa mija disgħa u sittin.24 Dawn ir-riżoluzzjonijiet huma meqiusa bħala l-espressjoni ultima tar-rieda tal-komunita’ internazzjonali. Minħabba f’dak kollu li jissimbolizzaw, huma saru jifformaw parti mil-liġi konswetudinarja internazzjonali instantanjament.25 Numru mill-prinċipji introdotti permezz ta’ 23 United Nations Office for Outer Space Affairs, Space Law Treaties and Principles <http:// www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html> 12 ta’ Novembru 2018. 24

Hearsey M.C., A review of challenges to corporate expansion into outer space, 2008, p.6.

Il-liġi kostwetudinarja hija waħda mis-sorsi maġġuri formali tal-liġi internazzjonali in ġenerali u għalhekk ukoll tal-liġi internazzjonali tal-ispazju.

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dawn ir-reżoluzzjonijiet ġew imbagħad inklużi wkoll fil-Corpus Iuris Spatialis Internationalis, speċjalment fl-Outer Space Treaty. Inoltre, l-AGNU addottat ukoll ħames dikjarazzjonijiet u prinċipji legali magħrufin bħala l-iSpace Resolutions. Huma ġew addottati sabiex jiġi nkoraġġit l-eżerċizzju tal-liġi internazzjonali dwar l-ispazju. Dawn huma s-segwenti: i) Id-‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’ Res. 1962 (XVIII) tat-tlettax ta’ Diċembru tas-sena elf disa’ mija tlieta u sittin ii) Il-‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting.’ Res. 37/92 tal-għaxra ta’ Diċembru tassena elf disa’ mija tnejn u tmenin iii) Il-‘Principles Relating to Remote Sensing of the Earth from Outer Space’ Res. 41/65 tat-tlieta ta’ Diċembru tassena elf disa’ mija sitta u tmenin iv) Il-‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’ Res. 47/68 tal-erbatax ta’ Diċembru tas-sena elf disa’ mija tnejn u disgħin, u v) Id-‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, Taking into Particular Account the Needs of Developing Countries.’ Res. 51/122 tat-tlettax ta’ Diċembru tas-sena elf disa’ mija sitta u disgħin. Din hija magħrufa wkoll bħala d-‘Declaration on space benefits’.26 Bħalma nnotat il-Qorti Internazzjonali tal-Ġustizzja, avolja r-reżoluzzjonijiet tal-AGNU mhumiex vinkolanti, jistaw xorta waħda jkollhom valur normattiv. Mhux l-ewwel darba li tali riżoluzzjonijiet 26 Tronchetti F., ‘The Exploitation of Natural resources of the Moon and other Celestial Bodies - A proposal for a legal regime, 2009, p. 61.

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kienu essenzjali sabiex jiġu stabbiliti regoli jew sabiex jiġi stabbilit opinio juris.27

3.3 Il-Liġi Konswetudinarja jew Ius Gentium Il-Liġi Konswetudinarja hija sors formali maġġuri ieħor talLiġi Internazzjonali inġenerali, u b’hekk ukoll sors maġġuri talliġi internazzjonali dwar l-ispazju. Sabiex prattika tiġi rikonoxxuta bħala ius gentium, minbarra s-sempliċi prattika tagħha fost l-Istati Membri, irid ikun hemm ukoll rikonoxximent li tali prattika ssegwi regola li hija legalment vinkolanti u opinio iuris sive necessitatis.28 Ius Gentium fil-liġi internazzjonali mhuwiex sempliċi użu, anke jekk dan ikun stabbilit sew. Sakemm il-liġi konswetudinarja tiġi rikonoxxuta, hija tkun soġġetta għal opinjonijiet differenti sabiex jiġi rikonoxxut bażi fundamentali biex tali drawwa ssir sors ta’ liġi internazzjonali. Apparti minn hekk, iż-żmien huwa wkoll element importanti ħafna f’dan ir-rigward. Ordinarjament, irid jgħaddi ċertu żmien sabiex jintwera li drawwa għandha titqies bħala prattika li għandha torbot legalment. Però kif rajna mir-riżoluzzjonijiet tal-ispazju tan-NU, jeżistu wkoll każijiet fejn il-mogħdija taż-żmien ma jkollhiex rwol kbir x’tilgħab fit-twelid ta’ liġi konswetudinarja ġdida.29 Eżempju ta’ liġi koswetudinarja fit-tema tal-liġi internazzjonali tal-ispazju huwa l-kunsens universali li bih il-pajjiżi iħallu s-satelliti ta’ pajjiżi oħrajn jorbitaw liberalment madwar id-dinja. Meta l-Unjoni tar-Repubbliki Soċjalisti Sovjetiċi nehdiet lil ‘Sputnik 1’ fis-sena elf disgħa mija sebgħa u ħamsin, l-ebda pajjiż ieħor ma wera oġġezzjoni kontra dan il-proġett u minn dak iż-żmien ‘l hawn għadu ma oġġezzjona ħadd.30 Dan huwa eżempju ċar ta’ kif tista’ tinħoloq liġi 27

Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 ta’ Lulju 1996.

Hearsay M. C., ‘A review of challenges to corporate expansion into outer space’, 2008, p. 9.

Diederiks-Verschoor I.H. Ph., An introduction to space law, 1999, p. 10.

Listner J. M., ‘The ownership and exploitation of outer space: a look at foundational law and

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koswetudinarja meta użanza internazzjonali tkun akkompanjata millmogħdija taż-żmien. Eżempju ċarissimu ieħor ta’ liġi koswetudinarja internazzjonali huwa l-proprju Corpus Iuris Spatialis Internationalis, li minħabba fl-importanza u l-universalita’ tiegħu huwa kkunsidrat bħala liġi koswetudinarja. Hawnhekk wieħed irid isemmi li l-Moon Treaty mhuwiex ikkunsidrat bħala liġi koswetudinarja għaliex ħafna esperti jaħsbu illi huwa ma laħaqx l-objettivi tiegħu. L-Outer Space Treaty u r-Rescue Agreement it-tnejn jissodisfaw it-tema prinċipali tan-North Sea Continental Shelf Cases li Trattat jista’ jirrifletti l-liġi koswetudinarja hekk kif mifthiema bejn l-Istati Membri waqt in-negozji tat-trattat. Dan isir permezz ta’ dikjarazzjonijiet li jkunu jikkonstitwixxu opinio iuris. Barra minn hekk, wara l-adozzjoni ta’ tali Trattat, id-disposizzjonijiet tiegħu jridu jiġu aċċettati fil-ġeneralita` tagħhom u segwiti mill-Istati Membri bħala liġi koswetudinarja.31 Dan kien il-każ kemm bl-Outer Space Treaty, u kif ukoll bir-Rescue Agreement. 32

3.4 Ħarsa Lejn il-Liġi Internazzjonali Privata Aħna qegħdin ngħixu f’era ta’ globalizzazzjoni. Iktar ma jmur iż-żmien, iktar tkompli tikber iċ-ċirkulazzjoni trans-frunterjali talbnedmin, tal-oġġetti u kif ukoll tas-servizzi. Dan kollu għandu effett kbir mhux biss mil-lat internazzjonali, iżda jaffetwa b’mod estensiv ukoll il-liġi domestika ta’ kull pajjiż involut f’tali globalizzazzjoni. Avolja l-globalizzazzjoni tinneċessita l-unifikazzjoni u l-armonizzazzjoni fuq il-livell tal-liġi internazzjonali, sabiex din ikollha l-effett mixtieq, il-liġi internazzjonali trid tiġi appoġġjata mil-liġijiet domestiċi. L-attivitajiet spazjali diġa` saru parti minn tali globalizzazzjoni. future legal challenges to current claims’, 2003. 31

Ibid. para. 61.

Lee R., ‘Creating a practical legal framework for the commercial exploitation of mineral resources’, 2009, p. 214.

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Id-draft version tal-UNIDROIT Space Protocol33 huwa eżempju ċar ta’ strument ta’ liġi privata internazzjonali li għandu l-għan speċifiku li jarmonizza l-liġijiet domestiċi dwar l-ispazju fl-ambitu ta’ assetbased commercial space financing. Dan il-Protocol jirrappreżenta sforzi koordinati kemm tal-gvernijiet kif ukoll tas-settur spazjali kummerċjali sabiex asset-based financing isir iktar aċċessibbli għal kull tip ta’ industrija li qiegħda tfittex mezzijiet innovattivi biex tikseb start-up-capital bl-għan li tibda tipprovdi servizzi relatati ma’ l-ispazju.34 Peress illi kull entita` involuta f’tali servizzi taffaċċja problemi simili, dan il-protokol jipprova jgħin fil-mitigazzjoni tarriskji kollha relatati mal-finanzjar privat.35 Addizzjonalment, il-liġi internazzjonali privata tista’ wkoll tikkontribwixxi għal-ius gentium. Minn dan l-aspett, wieħed jista’ jiehu l-ftehim dwar l-International Space Station, l-Memoranda of Understanding dwar il-ġurisdizzjoni kriminali, il-proprjeta` intelletwali, u t-turiżmu spazjali bħala eżempji.36

4. Il-Futur u ftit mill-Problemi li Qegħdin Naffaċjaw Wara l-Cold War, ħadd ma seta’ jobsor illi kienu ser isiru daqstant żviluppi fil-qasam tal-ispazju fi żmien daqshekk qasir. L-esperti u dawk kollha li kienu involuti fil-qasam ma setgħux jikkontemplaw li s-satelliti artifiċjali kienu ser jitqiegħdu fl-orbitu sabiex jipprovdu servizzi bħar-remote sensing, il-predizzjoni tat-temp, ix-xandir dirett televiżiv, telekomunikazzjonijiet, u wisq inqas l-abitazzjoni umana fuq satellite stations permanenti37. Sfortunatament, il-liġi internazzjonali dwar l-ispazju tal-lum mhijihiex addattata sabiex tkopri l-iżviluppi 33

Draft version tal- Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets, addottata minn Conferenza Diplomatika, Berlin, Marzu 2012. 34

Ibid.

Vereshchetin S. V., The law of outer space in the general legal field (commonality and particularities), 2010, p. 44.

Ibid. 27 p. 9.

Dawn tal-ahhar nirreferu ghalihom bhala space settlements.

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kollha li saru. Ninsabu fil-pożizzjoni legali statika tal-lum għal żewġ raġunijiet prinċipali. L-ewwelnett, id-deċiżjonijiet tal-UNCOPUOS jittieħdu b’konsensus. Għal din ir-raġuni, l-Istati Membri jridu jaddattaw ruħhom għall-aċċettazzjoni universali. Dan il-proċess jispiċċa jirriżulta f’termini vagi u astratti li avolja jkunu applikabbli filġeneralita` tagħhom, ma jkunux addattatti għal sitwazzjonijiet speċifiċi li jinqalaw matul l-iżvilupp legali u teknoloġiku li jsir mażżmien. Wara d-diskussjonijiet, id-deċiżjonijiet finali tal-UNCOPUOS ikunu jirriflettu biss id-denoninatur komuni ta’ dak kollu li jkun ġie diskuss. Riżultati bħal dawn iħallu ħafna spazju għal spekulazzjoni u interpretazzjoni.38 Ninsabu f’dan l-istat legali wkoll għaliex l-iżviluppi teknoloġiċi u xjentifiċi fl-ambitu tal-ispazju qed isiru b’pass ħafna iktar mgħaġġel mill-iżviluppi legali, tant li bħalma semmejt qabel qed jitqajjmu ħafna mistoqsijiet li għadhom ma ġewx ikkunsidrati legalment.39 Id-Declaration on Space Benefits40 tas-sena elf disgħa mija sitta u disgħin ittaffi xi ftit mill-problemi li qed naffaċjaw minħabba iddisparita’ li teżisti bejn l-iżviluppi xjentifiċi u dawk legali, speċjalment fir-rigward tal-pajjiżi li għadhom qed jiżviluppaw u fir-rigward ta’ pajjiżi li għadhom pjuttost inkompetenti fil-qafas tal-ispazju. Din iddikjarazzjoni tenfasizza l-importanza tal-koperazzjoni internazzjonali f’dan il-qafas u tinkoraġixxi lill-pajjiżi li huma inqas kompetenti sabiex jieħdu sehem f’joint projects. Hija tagħti importanza wkoll lill-fatt li tali esplorazzjoni trid issir għall-benefiċċju ta’ kull pajjiż.41 4.1 Il-Privatizzazzjoni u l-Kummerċjalizzazzjoni Fis-sena elf disgħa mija erbgħa u sittin kienu diġa bdew isiru 38

Ibid. 2 p. 19.

Ibid. 6, p. 206.

Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, A/RES/51/122, 13 ta’ Dicembru 1996.

Ibid. 25, p. 78-79.

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numru ta’ spekulazzjonijiet dwar kif fil-futur l-esplorazzjoni u l-kummerċjalizzazzjoni tal-ispazju ma kinux ser jiddependu biss fuq l-organizzazzjonijiet il-kbar li ilhom minn dejjem involuti f’dan ilqasam. Maż-żmien bdew jitwieldu possibilitajiet ġodda u ħafna kienu dawk li bdew jaraw l-opportunitajiet li kien ser ikollhom organizzazzjonijiet oħra u professjonisti ta’ qosma differenti li b’xi mogħod jew ieħor kienu ser imissu mal-qasam tal-ispazju direttament jew indirettament. Iktar ma jmur iż-żmien, l-użi ekonomiċi tat-teknoloġija spazjali qed jiżdiedu flimkien mal-privatizzazzjoni ta’ tali teknoloġija. Dan kollu qed iwassal għal applikazzjoni iktar wiesgħa tal-liġi internazzjonali privata. Dawn l-iżviluppi notevoli ser jinneċessitaw l-appoġġ minn proċeduri addattati għal dispute settlements. F’Lulju tas-sena elf disgħa mija disgħa u disgħin ġewwa Vienna saret konferenza magħrufa bħala t-Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III). Din il-konferenza indirizzat t-tnehdija ta’ mekkaniżmu għal dispute settlement effiċjenti għat-tilwimiet kollha li jistaw jinqalaw fl-ambitu tal-kummerċjalizzazzjoni tal-ispazju.42 Kemm il-Liability Convention, u kif ukoll il-Corpus Iuris Spatialis ma jipprovdux sistema effiċjenti għal dispute settlement għallentitajiet privati. Għal din ir-raġuni, r-regoli tal-Alternative Dispute Resolution (ADR) qed jingħataw iktar u iktar importanza fil-liġi internazzjonali tal-ispazju. Fis-sitta ta’ Diċembru tas-sena elfejn u ħdax, il-Kunsill Amministrattiv tal-Qorti Permanenti dwar l-Arbitraġġ addotta sett regoli magħrufin bħala l-Optional Rules for the Arbitration of Disputes Relating to Outer Space Activities43 sabiex jiġu indirizzati l-lacunae li jeżistu fis-sistema tad-dispute settlement fil-liġi internazzjonali dwar l-ispazju. Dawn ir-Regoli jinkludu mekkaniżmu ta’ dispute settlement volontarju u vinkolanti addattat għan-neċessitajiet tal-ispazju u li jista’ 42

Goh M. G., Dispute settlement in international space law, 2007, p. 64.

Pocar F., An Introduction to the PCA’s optional rules for arbitration of disputes relating to outer space activities, 2012, p. 171.

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jintuża minn kull parti involuta fl-attivitajiet ekonomiċi tal-ispazju. Inoltre, kull deċizjoni fl-arbitraġġ hija enforzabbli f’kull pajjiż membru tan-New York Convention. Il-flessibilita` hija assigurata permezz tal-possibilita` li hemm sabiex il-proċeduri ta’ arbitraġġ jiġu mmodifikati meta hekk jaqblu l-partijiet. Il-partijiet jistaw ukoll jagħżlu l-arbitri u finalment, bil-proċess tal-arbitraġġ jiġi ppreservat livell għoli ta’ kunfidenzjalita` peress illi s-smiegħ u d-deċiżjonijiet ma jistawx jiġu ppublikati.44

4.2 Il-Pajjiżi Iżgħar u l-Pajjiżi li Għadhom Qed Jiżviluppaw M’huwiex biżżejjed illi nirrikonoxxu l-fatt illi r-riżorsi tal-ispazju huma erga omnes. Il-liġi internazzjonali u l-liġijiet domestiċi spazjali jridu jiżviluppaw b’tali mod illi kull pajjiż ikun jista’ jiggwadanja millesplorazzjoni tal-ispazju. Dan huwa speċjalment minnu għal pajjiżi iżgħar u għal dawk il-pajjiżi li għadhom qed jiżviluppaw li, mingħajr tali żviluppi, ma jkunux kapaċi jmexxu attivitajiet spazjali tagħhom infushom.45 Sabiex jiġu żviluppati prodotti u servizzi addattati għallesplorazzjoni tal-ispazju u għall-esplojtazzjoni paċevoli tar-riżorsi talispazju, iridu jsiru investimenti sostanzjali f’dan is-settur. L-ewwel u qabel kollox, sabiex tiżviluppa l-industrija nazzjonali ta’ kull pajjiż, kull pajjiż irid ikollu l-esperti tiegħu f’dan il-qasam u għalhekk kull pajjiż irid jinvesti fl-edukazzjoni ta’ kull min jista’ jkun interessat filqasam tal-ispazju ta’ barra. Il-problema hija illi, sfortunatament, ħafna pajjiżi jippreferu jinvestu l-fondi tagħhom f’setturi oħrajn ta’ importanza iktar imminenti waqt li pajjiżi oħra m’għandhomx ir-riżorsi meħtieġa sabiex jinvestu. Jekk din tibqa’ l-istatus quo, is-settur tal-ispazju ta’ barra qatt m’hu ser ikun illivellat internazzjonalment. 44

Ibid., p. 179.

Cohen A. M., Law and politics in space, 1964, p. 100.

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Apparti mill-iżviluppi teknoloġiċi nazzjonali, iridu jsiru wkoll żviluppi fil-liġi domestika ta’ kull pajjiż sabiex il-liġi internazzjonali tiġi applikata fil-ġeneralita` tagħha u partikolarment sabiex tiġi addattata għall-bżonnijiet ta’ kull pajjiż.

4.3 L-Unjoni Ewropeja L-istituzzjonijiet Ewropej jaqblu illi l-attivitajiet tal-ispazju u l-applikazzjoni tagħhom huma vitali għat-tkabbir u l-iżvilupp nazzjonali, speċjalment minħabba fl-impatt dirett li tali attivitajiet jistaw ikollhom fuq il-ħajja ta’ kuljum taċ-ċittadini tas-soċjeta` tagħna. Mis-snin disgħin tas-seklu li għadda l-Unjoni Ewropeja żviluppat ilEuropean Space Policy u investiet ħafna riżorsi finanzjarji, teknoloġiċi u politiċi sabiex tippromwovi l-Programmi Spazjali Ewropej. Bejn issena elfejn u erbatax u s-sena elfejn u għoxrin, l-Unjoni Ewropeja ser tkun nefqet tnax-il biljun Ewro fl-implementazzjoni tal-Programm Spazjali tal-Unjoni Ewropeja.46 Permezz tal-Lisbon Treaty dawn l-isforzi ġew issaportjati millintroduzzjoni ta’ kompetenza espressa u speċifika dwar l-ispazju fittitlu kkonċernat bir-riċerka u l-iżvilupp teknoloġiku spazjali.47 Nonostante l-importanza mogħtija lill-ispace policy fil-livell Ewropew, l-edukazzjoni u l-kompetenza f’dan is-settur mhuwiex żviluppat biżżejjed kemm fil-livell Ewropew kif ukoll fil-livell nazzjonali. Kull persuna interessata fil-liġi jew fit-teknoloġija tas-settur spazjali tinneċessita fundament interdixxiplinari. Persuna għandha bżonn l-għarfien tal-liġi tal-Unjoni Ewropeja u tal-policies tal-Unjoni Ewropeja dwar it-teknoloġiji li jistaw jiġu integrati u applikati. Dan jinkludi wkoll il-fehma ċara tar-relazzjoni li tezisti bejn il-Liġi Internazzjonal dwar l-Ispazju u l-Liġi Spazjali Ewropeja. 46 Malta National Space Policy 2017, p. 10 <http://mcst.gov.mt/wp-content/uploads/2017/05/ The-Malta-National-Space-Policy-2017_.pdf> 25 ta’ Novembru 2018. 47

Artiklu 189 tat-Trattat Dwar il-Funzjoni tal-Unjoni Ewropea.

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Wieħed irid ikun jifhem ukoll fl-aspetti tekniċi tat-teknoloġiji ġodda sabiex ikun jista’ jidentifika problemi relevanti legali taħt l-applikazzjoni tal-liġi internazzjonali, ewropeja u nazzjonali. Finalment, kull persuna interessata għandha tifhem il-funzjoni u l-kompetenzi tal-organizzazzjonijiet internazzjonali u nazzjonali spazjali li l-Unjoni Ewropeja għandha bil-fors tikkopera magħhom u tistabbilixxi r-relazzjonijiet addattati magħhom.48

4.4 Malta fis-Settur Spazjali Malta nehdiet l-ewwel Malta National Space Policy fis-sena elfejn u sbatax permezz tal-Kunsill Tax-Xjenza u t-Teknoloġija ta’ Malta. Malta m’għandhiex budget iddedikat lejn ir-riċerka spazjali. Pero’ l-pajjiż jinvesti ħafna fondi fir-riċerka u l-iżvilupp xjentifiku u teknoloġiku in ġenerali. Fis-sena elfejn u ħmistax Malta investiet ċirka €67,603 fir-riċerka u l-iżvilupp, u sas-sena elfejn u għoxrin hija timmira li tinvesti tnejn filmija tal-gross domestic product expenditure f’tali riċerka u żvilupp.49 Il-Policy Nazzjonali tirrikonoxxi s-servizzi essenzjali f’dan is-settur, flimkien mad-dimensjoni ekonomika, l-investimenti li għandhom isiru fl-edukazzjoni, u kif ukoll l-opportunitajiet l-oħra li jistaw jitwieldu permezz tal-iżvilupp tas-settur spazjali nazzjonali. Hija tidentifika servizzi bħalma huma t-teknoloġiji tas-satelliti u tagħraf li tali teknoloġiji mhux qegħdin jintużaw biżżejjed. Dawn it-teknoloġiji huma ta’ importanza f’bosta setturi bħal, per eżempju, fl-ippjanar talbini u l-amministrazzjoni tal-artijiet agrikulturali, kif ukoll fl-oqsma tal-boarder and coastal control. Hija tinnota kif l-avvanzi fit-teknoloġiji spazjali jgħinu l-evoluzzjoni tal-industriji high-tech li jibbenifikaw direttament lillekonomija nazzjonali. Barra minn hekk, hija tagħti importanza kbira 48 EU SPACE, European Union in Space: Law and Technology <http://www.eu-space.eu> 25 ta’ Novembru 2018. 49

Ibid. 45, p. 7.

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lill-edukazzjoni f’dan is-settur u turi l-intenzjoni li għandu l-gvern ta’ Malta sabiex jintroduċi l-qasam spazjali f’kull livell edukattiv, safrattant f’suġġetti obbligatorji. Hija tixhed dawl ukoll fuq l-importanza tal-koperazjoni ma’ l-Unjoni Ewropea u ma’ l-organizzazzjonijiet internazzjonali f’dak kollu li għandu x’jaqsam ma’ l-ispazju. Il-Malta National Space Policy tirrappreżenta pass fid-direzzjoni t-tajba sabiex xi darba Malta tkun tista’ ssir parteċipanta attiva fissettur tal-ispazju.

5. Konklużjoni Il-liġi spazjali preżenti tistabbilixxi l-istatus legali tal-ispazju u l-mekkanizmi legali fundamentali għall-esplorazzjoni u l-użu tiegħu. Hija tilħaq il-bżonnijiet tal-esplorazzjoni u l-użu tal-ispazju u għandha rwol effettiv li tqiegħed fl-ordni l-attivitajiet spazjali tal-Istati Membri u tal-organizzazzjonijiet internazzjonali. Il-liġi tissalvagwardja l-ordni fl-ispazju, tippromwovi l-koperazzjoni internazzjonali u tiggwida l-prattika tal-leġislazzjoni. Madankollu, il-komunita` internazzjonali qiegħda taffaċja sfidi ġodda fiż-żamma tas-sigurta`, fil-protezzjoni tal-ambjent tal-ispazju, u fl-iżvilupp mgħaġġel tal-attivitajiet kummerċjali spazjali. Ir-riskju ikkawżat miż-żieda tad-debris spazjali u l-applikazzjoni wiesgħa ta’ sorsi ta’ enerġija nukleari u żviluppi oħra f’dan is-settur jippreżentaw ċerti kwistjonijiet legali ġodda. Meta affaċċjata b’dawn is-sitwazzjonijiet u sfidi ġodda, il-komunita` internazzjonali għandha mhux biss issaħħaħ l-implementazzjoni effettiva tal-liġi tal-ispazju sabiex tindirizza l-problemi prattiċi, iżda għandha wkoll tippromwovi l-iżvilupp tagħha. Ir-regoli primarji u sekondarji li jirregolaw l-attivitajiet tal-ispazju għandhom jiġu rfinati. Per eżempju, il-qafas legali u l-mekkaniżmi relatati mal-prinċipju tal-interessi komuni fl-ispazju u l-wirt komuni tal-umanita` għandhom jiġu rfinati. Bħalma ntqal qabel, fil-preżent, il-prinċipju tal-interessi komuni huwa applikat għall-ispazju, waqt li 484

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l-prinċipju tal-wirt komuni tal-umanita` huwa applikat speċifikament għall-qamar u l-korpi ċelestjali l-oħra. Bħala riżultat, jeżistu żewġ settijiet differenti ta’ sistemi legali fl-ispazju. Sabiex nikklarifikaw ħafna inċertezzi li jeżistu f’dawn iż-żewġ sistemi legali aħna nistgħu niġbdu minn sistemi legali internazzjonali oħra u niżviluppaw arranġamenti u mekkaniżmi speċifiċi addattati għal dawn iż-żewġ prinċipji. Barra minn hekk, il-leġislazzjoni dwar is-sigurta’ militari tal-ispazju għandha tipprogressa. L-Outer Space Treaty jippreżenta problemi ċari f’dan is-settur, speċjalment għaliex huwa jipprojbixxi biss l-armi ta’ mass destruction. Hekk ukoll għandna bżonn li ntejbu l-leġislazzjoni dwar l-ambjent u l-protezzjoni tar-riżorsi tal-ispazju. Għad m’hemmx konvenzjoni internazzjonali speċjali dwar l-ispace debris u l-enerġija nukleari. Għandu bżonn isir progress fil-leġislazzjoni tal-ispazju dwar attivitajiet ġodda li qegħdin naffaċjaw. Skond il-ħtiġiet prattiċi, in-normi legali dwar l-esplojtazzjoni tar-riżorsi fl-ispazju, l-ispace stations, it-turiżmu spazjali, it-traffiku spazjali u t-trasport flajruspazju għandhom jiġu żviluppati kollha u malajr sabiex il-liġi tlaħħaq ma’ l-iżviluppi mgħaġġlin tax-xjenza spazjali. L-istorja tgħallimna illi l-attivitajiet u t-teknoloġiji tal-ispazju ma setgħux jiġu żviluppati mingħajr ir-regolazzjoni, s-salvagwardjar u l-gwida tal-liġi spazjali. Wara l-iżvilupp inizzjali li beda fis-sittinijiet, it-teknoloġiji spazjali baqgħu jiżviluppaw b’pass mgħaġġel ħafna, iżda l-liġi baqgħet sa ċertu punt imwaħħla fl-istatus quo tas-sittinijiet u dan m’għandux ikun minnu. L-iżvilupp tal-liġi spazzjali trid tkompli tiżviluppa sabiex tkun tista’ tkompli tikkontribwixxi lejn il-benefiċċju tal-umanità. L-istess jingħad fuq il-livell domestiku. M’għadniex ngħixu fi żmien fejn l-ispazju kien biss prinċipju astratt u kull pajjiż irid jieħu l-passi neċessarji sabiex jimplementa l-iżviluppi internazzjonali fuq livell domestiku. Iridu jsiru l-investimenti neċessarji fl-edukazzjoni, fix-xjenza u fil-liġi domestika sabiex kull pajjiż ikun jista’ jipparteċipa 485

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fl-iżviluppi spazjali tal-futur. L-ispazju huwa l-futur tal-umanita u hekk għandu jitqies.

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Legislative Drafting and Statutory Interpretation

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Select principles of Maltese Law applied in legislative drfting and statutory interpretation Professor Kevin Aquilina

Professor Kevin Aquilina is the Dean at the Faculty of Laws and Head of Department of Media, Communications and Technology Law at the University of Malta.

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1. Introduction

his paper compiles and explains recently enunciated select principles of Maltese law, a source of the law, which are applied for the purposes of statutory interpretation in the Maltese mixed legal system. As these principles are wide-ranging, it is not possible to list and explain them all in such a short contribution. Hence the purpose of this paper is to identify where principles of law can be found in Maltese Law, list some salient principles of law, identify the laws, case law or writings of jurists where these principles are embedded, and explain these principles for the benefit of the uninitiated student. Needless to say, principles of law are a guiding force for both legislative drafting and statutory interpretation. They are tools which a judge has recourse to when deciding cases where the law is silent or unclear. A legislative drafter also needs to be familiar with these principles to ensure that his/her product is compliant therewith; otherwise legal uncertainty will proliferate into the statute book.

2. Malta As A Mixed Legal System It has always to be kept in mind, by way of background to legislative drafting and statutory interpretation, that Malta is a mixed legal system composed principally of the three legal systems known as ius civile (including canon law), common law and European Union law and, secondarily, of other sources of law such as public international law, foreign national law and autochthonous law. From a legislative drafting and statutory interpretation perspective, it is one thing drawing up an amendment to the five civilian Codes and yet another thing drawing up an amendment to a common law or European Union law1 inspired legislation. Let me take a concrete example 1

European Union Law is drafted in accordance with the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, Publications Office of the European Union, Luxembourg, 2015. See also European Commission, Legislative Drafting: A Commission Manual, European Commission, Brussels, 1997.

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to illustrate this point. Consider the case of the Civil Code2 which technically should not admit of provisos in its drafting style. But see how the Civil Code was corrupted when provisos were introduced therein by, for instance, Act No. XIV of 2011 in relation to the duty of spouses towards children:

3B. (3) The obligations provided in sub-article (1) also bind a person acting in loco parentis with regard to another person’s child, by reason of the marriage of such person to a parent of that child, where the other parent of that child, shall have, at any time before or during the marriage, died or was declared as an absentee according to Title VII of Book First of this Code, or is unknown: Provided that the provisions of this sub-article shall be without prejudice to the obligations of the natural parents of the child and shall in any case be without prejudice to the provisions of Article 149. Another example of contamination of the Civil Code by provisos is Article 4(11), as amended by Act No. IX of 2014, in relation to the surname to be used by spouses and children of the family:

4. (11) Partners in a civil union contracted according to the Civil Unions Act may, when applying for the publication of banns relating to the civil union elect to: (a) adopt for both of them the surname of one of the partners to the civil union or the surnames of both of the partners in the order they chose for both; or (b) retain their own surname: Provided that if no choice is expressed in accordance with this sub-article the partners to a civil union shall retain their own surnames. Act No. XXI of 1993 amending article 16(2) of the Civil Code in 2

Chapter 16 of the Laws of Malta.

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relation to the liability for maintenance by reason of consanguinity or affinity is in the same vein:

16. (2) Such liability shall cease even in regard to such persons, if the claimant shall have become indigent through his fault: Provided that this shall not apply where the claimant are the parents, or other ascendant. Unfortunately, there are more examples of this alien legislative drafting style having recourse to the unorthodox proviso in the Civil Code. Indeed, as seen from the above examples, provisos have been introduced therein and are littering the civilian code. An alien drafting style influenced from the common law legal system is plaguing an eminently ius civile statute. This does not forebode well for legal certainty and statutory interpretation. Nevertheless, the Civil Code is not the only Code which has suffered at the hands of the incompetent legislative drafter who has contributed to the contamination of the Civil Code by an idiosyncratic drafting style. Other examples abound in the other Codes. For instance, in the case of the Criminal Code, its interpretation should be by reference to Italian Law in so far as those provisions which originate from the ius civile are concerned, not by reference to English Law or to other foreign jurisdictions which pertain to the latter legal family. In Il-Pulizija v Antoine Cassar,3 the Court of Criminal Appeal dismissed the Attorney General’s contention that recourse should be had to Australian case law when construing the Criminal Code. As a rule, the legislative drafting style of codes does not admit provisos.

3. Where Are Principles Of Law Found? Principles of law are found in different sources of the law. First, they are written down expressly in the law. Second, there are inferred through case law using a purposive or teleological interpretation 3

Court of Criminal Appeal, Superior Competence, 22 September 2009.

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of statutory law. Third, they are elaborated in juristic writings. Fourth, they may be contained in other sources of the law such as rulings delivered by the Speaker of the House of Representatives, in foreign law, in explanatory reports appended to treaties or in their travaux préparatoires in the case of international law, in European Commission interpretations, guidelines, and other European Union documents shedding light on the interpretation of European Union acquis communautaire, and in custom. The Maltese legal system, being mixed, has to draw on the various principles of law to which it owes its origin. This, of course, inextricably complicates one’s life because principles of law need not always be universally uniform in nature might from from one legal system to another or even conflict with each other. They may vary from one legal system to another, even if diverse legal systems might use the same terminology and appear to be, at face value, identical legal principles; yet this is nonetheless not always true. There are instances in Maltese Law where a principle common to one legal system (take for instance the Interpretation Act in relation to the common law derived laws) is applied across the board even to those laws which, say, derive from the ius civile such as the five codes or which owe their origin to European Union Law (as is the case with the transposition of European Union directives into Maltese Law). Another example is the Civil Code principles of statutory interpretation contained in the law of obligations’ provisions which do not necessarily tally with the principles of statutory interpretation of laws for it is one thing to interpret a statute and quite another to interpret a contract. Thus, the Civil Code has a provision that states, in Article 1007, that customary clauses ‘shall be deemed to be included in a contract, even though they are not expressed’ whilst in the case of statutory interpretation the principle is the obverse: ubi lex voluit, dixit; ubi noluit, tacuit.4 The reader will therefore find a nuance in the principles of law involved depending on which legal system s/ he is studying. Malta, being a mixed legal system tends to be a more 4 The Court of Appeal, in Nobbli Frances Mary Chesney Sceberras D’Amico v. Onor. Edgar Cuschieri nomine held, on 10 June 1957, that ‘jekk il-leġislatur ma pprovdiex biex jikkomprendi fil-liġi anki l-fewdi, ma jistgħax għal dan in-nuqqas jissupplixxi t-tribunal’.

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complicated phenomenon because it evinces disharmony not only inter se – between itself and other legal systems but also intra se – disharmony within the actual Maltese legal system – where principles of law which derive from, for instance, the ius civile conflict or diverge with those deriving from the common law. It is therefore imperative, initially upon the legislative drafter and subsequently upon the judge, to be able to reconcile these difficulties primarily by applying the correct legal system from which the law under consideration originates and the principles of that legal system to the case at hand.5

4. Interpretation Of Contracts v. Interpretation Of Laws The Civil Code, in Book Second Of Things, Part II, Of the Modes of Acquiring and Transmitting Property and Other Rights over or Relating to Things, Title IV Of Obligations in General, § III. Of the Interpretation of Contracts, sets out the rules of statutory construction in the case of contracts (as distinct from laws), as follows:

No interpretation where meaning of words is clear: 1002. Where, by giving to the words of an agreement the meaning attached to them by usage at the time of the agreement, the terms of such agreement are clear, there shall be no room for interpretation.6 Where literal meaning differs from intention of parties: 1003. Where the literal meaning differs from the common intention of the parties as clearly evidenced by the whole of the agreement, preference shall be given to the intention of the parties.7 5

For further discussion of this point, see Kevin Aquilina, ‘Legislative Drafting and Statutory Interpretation in the Maltese Mixed Legal System’, International Journal of Legislative Drafting and Law Reform, Vol. 6, June 2017, pp. 29-42, at pp. 41-42.

Louis u Margaret, konjugi Scicluna v. Joseph Sant, Civil Court, First Hall, per Mr Justice Carmelo Farrugia Sacco, 18 April 2005; and Anna Maria Wismayer v. John Gracey u martu Josephine Gracey, Court of Appeal, 30 September 2016. 7

Major Peter Manduca v. L-Onorevoli Imhallef Dottor Hugh Harding, Court of Appeal, June

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When clause is susceptible of two meanings: 1004. When a clause is susceptible of two meanings, it must be construed in the meaning in which it can have some effect rather than in that in which it can produce none.8 Words susceptible of two meanings: 1005. Words susceptible of two meanings shall be taken in the meaning which is more consistent with the subjectmatter of the contract. Ambiguity: 1006. Whatever is ambiguous shall be interpreted according to the usage of the place where the contract is made. Customary clauses: 1007. Customary clauses shall be deemed to be included in a contract, even though they are not expressed. Clauses to be interpreted with reference to one another: 1008. All the clauses of a contract shall be interpreted with reference to one another, giving to each clause the meaning resulting from the whole instrument.9 Doubtful cases: 1009. In case of doubt, the agreement shall be interpreted against the obligee and in favour of the obligor. 1993. 8

Andreas Wilhelm Gerdes v. Bettina Vossberg, Civil Court (Family Section), per Mr Justice Noel Cuschieri, 13 July 2007 and Court of Appeal, 29 February 2008, where the Civil Court (Family Section) held as follows: ‘Also, local case-law, whilst asserting the legal maxim that contra testimonium scriptum testimonium non scriptum non fertur, has established that this rule suffers certain exceptions in the interests of justice and equity, basically in these cases where there is a manifest mistake or where the wording of the law renders the clause ambiguous’. The court also quoted Carmelo Morana vs Nutar Dottor Joseph Spiteri et, Court of Appeal, 26 May 1952, [Kollezzjoni tad-Decizjonijiet tal-Qrati Superjuri ta’ Malta, Vol. XXXVI, Pt .I., p. 119] and the list of cases cited therein – here the court had applied the exception not the rule admitting testimony over a written contract which was affected by simulation. 9

The same point is made in relation to a law. See Emmanuele Bonello et v. Edward Percy Larchin, Court of Appeal, 15 December 1945; and Major Peter Manduca v. L-Onorevoli Imhallef Dottor Hugh Harding, supra note 7.

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General terms: 1010. However general may be the terms in which a contract is worded, it shall only extend to the things which the parties appear to have intended to deal with. When a case is specified for the purpose of explaining an agreement: 1011. Where in a contract a case has been specified for the purpose of explaining an agreement, it shall not be presumed that the parties, by so doing, intended to exclude other cases not specified, if such other cases may reasonably be construed as being within the scope of the agreement. In Paul Agius nomine v. Andrew Sullivan et nomine,10 the Commercial Court, citing Article 1002 of the Civil Code, held that when a usage of trade is clear, there is no room for interpretation. Essentially here the Civil Code is stating that where the wording in the agreement is clear, it has to be applied and cannot be interpreted. A similar rule applies also to legislative interpretation.11 The Civil Code further provides that where the literal meaning differs from the intention of the parties, then it is the intention of the parties that prevails. In the case of statutory interpretation, when the literal meaning differs from the intention of Parliament, it is the literal meaning that applies (provided that there is no ambiguity in that wording and that wording is clear). Should there be such an ambiguity and unclarity, then it is the will of Parliament that prevails over the ambiguous and unclear terms. In doing so, the judge should ensure that s/he opts for an interpretation that metes out justice to the parties whilst reconciling it with other laws when interpreting Parliament’s volition. Parliament should be presumed not to have willed the perpetration of an injustice through giving effect to the grammatical reading of a provision. The Court of Appeal, in Emmanuele Bonello et v. Edward Percy Larchin12 held that: 10

Paul Agius nomine v. Andrew Sullivan et nomine, Commercial Court, per Mr Justice Albert Manchè, 18 March 1994. 11

See also Charles Caruana v. Giuseppa Gauci, Court of Appeal, 3 July 1995.

See supra note 9.

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Illi mbagħad hija ħaġa rikonoxxuta l-lum universalment, sew mid-dottrina kemm millġurisprudenza, illi d-dover tal-ġudikant ma huwiex sempliċement dak li japplika l-liġgi, għhalkemm ikun qiegħed jara li dik l-applikazzjoni minħabba l-fattezzi speċjali tal-każ tkun inġusta ghaliex kieku dawk iċċirkustanzi ġew preveduti mil-leġislatur dan ma kienx ikun irid dik l-applikazzjoni grammatikali tal-ligi, iżda huwa anki dover preċiż tal-ġudikant illi, minħabba dawk ic-ċirkustanzi speċjali tal-każ, jara x’inhi l-probabili intenzjoni tal-leġislatur f’dawn il-każijiet, u japplika dispożizzjoni u jinterpretaha b’mod li jista’ jikkonċiljaha mal-liġijiet l-oħra, biex l-applikazzjoni tagħha ma tiġix inġusta. The rules in the Civil Code related to words susceptible of two meanings (Articles 1004 and 1005) and ambiguity (Article 1006) do not apply entirely to statutory interpretation. Whilst it is always preferred to apply the interpretation that makes sense in the construction of a statute to that which does not, it does not necessarily follow that, mutatis mutandis, a provision need always be interpreted with the subject-matter of the law in question in mind where that same provision is found as there might be cases where the said provision directs you to another provision in another separate and distinct law (such as the interpretation provision in the parent Act or to a provision/s in the Interpretation Act or, in the case of a special law, to a provision in the general law) or another law might simply dictate how the provision under examination is to be construed (as is the case with, for instance, supremacy provisions such as that contained in Article 6 of the Constitution and analogous provisions in other primary laws such as those contained, for example, in the Emergency Powers Act,13 Diplomatic Privileges and Immunities Act,14 the 13

Article 7 of Chapter 178 of the Laws of Malta.

Article 13 of Chapter 191 of the Laws of Malta.

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European Convention Act,15 the Equal Opportunities (Persons with Disability) Act,16 the European Union Act,17 Gender-Based Violence and Domestic Violence Act,18 and so forth). Nor does it necessarily follow that ambiguous words in a statute should be interpreted according to the usage of the law where it is made for it might be that other principles of statutory construction might be more appropriately applied (for instance, that a criminal provision should be interpreted narrowly and to the benefit of the accused – in dubio pro reo; that a constitutional provision should be afforded a liberal significance than a limited one; and so on) or because that provision might not necessarily be home-grown – autochthonous – but imported from an international treaty, EU directive or foreign law, in which it is advisable to look at the sources of these three sources of Maltese Law. In addition, an express provision in a statute might specifically exclude that the provisions of that law ought to be interpreted with reference to each other, even though, stricto jure, this is a validly recognised method of statutory construction. Similarly, articles 1009 to 1101 of the Civil Code have no direct application to legislative drafting and statutory construction though they remain pertinent in a civil law environment.

5. A List Of Some Salient Principles Of Law Applied In Statutory Interpretation In this section, I will list some of the salient principles of law applied in statutory interpretation relying heavily on case law to prove this point. Unfortunately, space limitations do not allow for a more expansive rendering of the subject into juristic works and other minor sources referred to above. 15

Article 3(2) of Chapter 319 of the Laws of Malta.

Article 37 of Chapter 413 of the Laws of Malta.

Article 3(2) of Chapter 460 of the Laws of Malta.

Article 22(2) of Chapter 581 of the Laws of Malta.

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5.1 The literal meaning Where the words of a statutory law are in themselves precise and unambiguous, a court will normally resort to the literal meaning of such a provision. Thus, in Louis u Margaret konuugi Scicluna v. Joseph Sant,19 the court held that: ‘Illi fil-kaz odjern, m’hemmx lok ghall-interpretazzjoni, stante li l-kelma ‘aċċess’ u dritt ta’ passaġġ huma distinti, u l-kliem huwa car biżżejjed, u m’hemm l-ebda menzjoni ta’ dritt ta’ passaġġ’. The Court of Appeal in Major Peter Manduca v. L-Onorevoli Imhallef Dottor Hugh Harding held, on 30 June 1993, that ‘definizzjoni wkoll trid tigi definita – hlief meta – kif kienu jgħallmu l-ġuristi rumani u l-umanisti, is-sens litterali tal-kliem huwa tant ċar u limpidu li ma jħalli l-ebda spazju ghallekwivoku jew dubju raġonevoli’. The Court of Appeal, in Nobbli Frances Mary Chesney Sceberras D’Amico v. Onor. Edgar Cuschieri nomine, opined20 that: ‘Ebda interpretazzjoni estensiva ma tista’ qatt twassal għall-konklużjoni li ġew kompriżi anki l-fewdi. L-ewwelnett, kwalunkwe interpretazzjoni simili tkun assolutament kontra l-ittra ċara tal-ligi, u għalhekk hija għal kollox inamissibbli’.

5.2 Departure from the literal meaning A court may however depart from the literal meaning and prefer therefor an interpretation based on the plain intention of the House of Representatives once this can be gathered from a statutory law as a whole when such a literal meaning leads to some absurdity, or some repugnance or inconsistency with the rest of the provisions of the written law, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but no farther. In Alfred Mizzi et v. Frank Corso et, the Court of Appeal, on 8 May 2003, held that:

…li l-Artikolu 443 (Kap. 16) tant hu ċar, in kwantu jistabilixxi distanzi legali faċilment aċċertabbli, li ma 19

Civil Court, First Hall, per Mr Justice Lino Farrugia Sacco, 18 April 2005.

See supra note 4.

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jagħhtix lok, u m’għandux bżonn, ta’ ebda eżerċizzju ta’ interpretazzjoni biex wieħed isib x’kienet l-intenzjoni tal-leġislatur (ara f’dan is-sens is-sentenza ta’ din ilQorti, diversament komposta, fil-kawża fl-ismijiet Charles Caruana –v– Giuseppe Gauci deċciżza fl-10 ta’ Jannar, 1991). L-intenzjoni tal-leġislatur hija ċara biżżejjed. Meta l-leġislatur impona ċerti distanzi minimi legali li għandhom jiġu rispettati f’aperturi li jkunu viċin ħafna l-ħajt diviżorju, huwa ried jillimita f’ċerta miżura d-dritt assolut tal-proprjetà, fl-interess reċiproku taż-żewġ proprjetarji tal-fondi kontigwi. Billi din illimitazzjoni tiġi imposta fil-konfront ta’ fond a vantaġġ ta’ fond kontigwu, kien proprju għalhekk li l-leġislatur ipoġġi d-disposizzjoni tal-liġi relativa fit-Titolu IV tatTieni Ktieb tal-Kodiċi Ċivili, eżattament fis-Subartikolu I li jitkellem fuq is-servitujiet maħluqa mil-liġi. In Joseph Grech v. Dolores armla ta’ Antonio Ellul pro et noe et, the Court of Appeal, on 29 October 2004, held that:

Din il-Qorti mhux biss tirribadixxi dan l-insenjament kif fuq riportat iżda żżid ukoll li l-Artikolu 443 tal-Kap. 16 – u bħalu hemm oħrajn – jistabilixxi regoli fissi u ċerti proprju bl-iskop li kulħadd ikun jaf xi drittijiet u obbligi għandu. Dan hu hekk fl-interess suprem ta’ l-ordni pubbliku. Fi kliem iehor, il-ġar ma għandux għalfejn joqgħod iġib il-prova li qed isofri preġudizzju jekk id-distanza legali tal-bini ta’ twieqi ma tinżammx mill-proprjetarju tal-fond attigwu. Diversament, wieħed mhux biss imur kontra l-kelma ċara u espliċita tal-liġi – haġa prekluża mill-ermenewtika legali – imma jkun qed jikkreja jew jinvita sitwazzjoni ferm inċerta u instabbli, a detriment tal-prinċipju taċ-ċertezza tad-dritt. Jekk regoli ċari u fissi imposti bil-liġi jiġu assoġġettati għal interpretazzjoni soġġettiva dwar l-eżistenza o meno ta’ preġudizzju għall-individwu privat, allura eżercizzju simili faċilment jista’ jwassal biex kollox isir relattiv u 499

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soġġett għal interpretazzjoni soġġettiva – li hu binajru perikoluż li ma għandux jiġi segwit. B’analoġija, tajjeb jiġi rilevat li meta l-Baudry Lacantinerie (ara ‘Dei Beni’, Commentario sul Diritto Civili p. 766) jirreferi għaddistanza li għandha tinżamm fit-twaħħil ta’ siġar bejn proprjetà u oħra, hu ikkummenta illi, ‘Questo diritto, assoluto come il principio stesso posto nell’articolo precedente, si esercita senza che si debba ricercare se le piantagioni cagionano un pregudizio o meno. In Joseph Buttigieg et noe v. Mark Camilleri,21 the court held that the Federazzjoni Kaċċaturi Nassaba Konservazzjonisti was a person both in terms of the Interpretation Act and of case law: ‘It-test tal-Liġi għalhekk huwa ċar, dirett u inekwivoku u ma jħallix effettivament lok ta’ interpretazzjoni – partikolarment interpretazzjoni tali illi tirrestrinġi jew addirittura tinnega dritt ta’ azzjoni fejn dan huwa espressament permess mill-Liġi innifisha’.

5.3 Where the law is clear it shall be enforced

Dura lex sed lex means that if the language of a statutory provision is clear, it shall be enforced even though the result may seem harsh or unfair and inconvenient. I would translate, more colloquially, the Latin legal maxim of dura lex sed lex as ‘tough luck’. For a reference to this principle, see Anna Maria Wismayer v. John Gracey u martu Josephine Gracey, decided by the Court of Appeal on 30 September 2016.

5.4 Presumption as to giving the same meaning to a word or expression judicially construed in a subsequent law using the said word or expression In Joseph Buttigieg et noe v Mark Camilleri, decided by the Court 21

Court of Appeal, Inferior Competence, per Mr Justice Raymond C. Pace, on 29 October 2009.

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of Appeal on 29 October 2009, the point was made that when a word or expression in a statutory law has received a clear judicial interpretation, there is a presumption that any subsequent law that incorporates the same word or expression in a similar context shall be construed so that the word or expression is interpreted according to the meaning that has previously been ascribed to it.

5.5 Derogation from statutory presumptions Parliament may nevertheless derogate from the application of any presumption in any statutory law. Such derogation has to be made by an explicit provision of the law. See Article 525(1) of the Civil Code which reads that: ‘A person is in all cases presumed to possess in his own behalf, and by virtue of a right of ownership, unless it is proved that he has commenced his possession in the name of another person’ for the presumption of possession uti dominus22 and Article 528 of the Civil Code which reads that: ‘Any person actually in possession who proves that he formerly possessed shall, in the absence of proof to the contrary, be presumed to have continued to possess during the intervening period’ for the presumption of probatis extremis media praesumuntur.23 This point was made in Francis Ciantar et v. il-Partit Nazzjonalista decided by the Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, on 30 November 2010.

5.6 Footnotes No footnote to a provision in any statutory law is taken to be part of the law and considered for interpretation purposes of that law. It has to be pointed out that normally when laws are enacted, they do not contain footnotes. But there are instances where this is not the case. Take, for instance, the National Interest (Enabling Powers) (Amendment) Act, 2018 – Act No. XXI of 2018 – the National Interest 22

Making use of property as though one were the owner thereof.

The extremes having been proved, those things which lie between are presumed.

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(Enabling Powers) Act,24 which, in Article 2 of the 2018 enactment amending the interpretation provision of Chapter 365, in relation to the definition of the expression ‘Regulation of the Council of the European Union’ reference is made in a asterisked footnote to two internet links and to the definition of the expression ‘United Nations Security Council Resolution’ reference is had in a asterisked footnote to another internet link. However, when the Law Commission publishes the laws on the internet site of the Ministry responsible for justice (www.justiceservices.gov.mt) or as part of a Revised Edition of the Laws of Malta, it invariably adds footnotes. See, for instance, the footnotes to Article 4(5), the proviso to Article 40, and Article 66B of the Civil Code. Footnotes are not numbered as in word documents but usually an asterisk is used which does not necessarily have to appear at the end of a sentence for it can also follow a provision number or be located somewhere within the text of a provision. What is also interesting, whilst on the subject of footnotes, is that in the past court judgments did not contain footnotes, but with the advent of computerisation, footnotes are being added in court decisions. See, in this respect, for instance, Kummissarju ta’ l-Artijiet v. Maria Theresa Deguara Caruana Gatto et, decided by the Constitutional Court on 6 September 2010. This decision contains 33 footnotes.

5.7 Legal maxims to be applied in statutory construction The following legal maxims have been applied by case law in statutory construction: (i) the law does not concern itself about trifles – de minimis non curat lex;25 (ii) inclusion of the one means the exclusion of the other – inclusio unius est exclusio alterius (or expressio unius est 24

Chapter 365 of the Laws of Malta.

See Daniel Camilleri et v. Kunsill Lokali Hamrun, Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 12 October 2004; and Paola Zerafa et v. Raymond u Jane konjugi Formosa, decided by the Court of Appeal on 30 September 2016.

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exclusio alterius);26 (iii) wide words in significance associated in the text with more limited words in significance are taken to be restricted by implication to matters of the same limited character – ejusdem generis; 27 (iv) a general statutory provision does not repeal a specific one – generalia specialibus non derogant (lex specialis non derogat lex generalis);28 (v) no one is bound to perform the impossible – ad impossibilia nemo tenetur;29 (vi) that justice, equity and reasonableness are the principles which should be applied in interpreting human rights 26

See Clementino u Rosaria konjugi Caruana v. Emanuela Agius, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 22 November 2002.

See Charles Caruana v. Giuseppa Gauci, supra note 11; Carmelo Borg v. il-Ministru responsabbli mill-Gustizzja u l-Intern et, Court of Appeal, 8 November 2005; Maria mart Ludovico Azzopardi et v. Michael u Frances konjugi Bugeja et, Rent Regulation Board, per Magistrate Dr Paul Coppini, 19 April 2007; Anthony Camilleri v. Victor Camilleri, Court of Magistrates (Gozo) (Superior Competence), per Mr Justice Anthony Ellul, 24 November 2009; Frank P. Borg Limited v. Bank of Valletta p.l.c., Court of Appeal, 28 September 2007; L-Avukat Dottor Gianfranco Gauci et noe v. Pawlu Said et, Court of Magistrates (Gozo) (Superior Jurisdiction), per Magistrate Dr Antonio Micallef Trigona, 20 April 2006; Woodline Limited v. Kummissarju tat-Taxxa fuq il-Valur Mizjud, Civil Court, First Hall, per Mr Justice Lino Farrugia Sacco, 11 July 2005; Island Sound Limited v. Tony Said pro et noe, Small Claims Tribunal, Gozo Section, per Adjudicator Dr Grazio Mercieca, 12 December 2002; Il-Pulizija v. Gordon Pickard, Court of Criminal Appeal, per Madam Justice Edwina Grima, 30 November 2016; Frank Cassar Torreggiani v. Walter Zammit Tabona, Court of Appeal, 19 February 1951 (Kollezzjoni tad-Deċizjonijiet tal-Qrati Superjuri ta’ Malta, Vol. XXXV, Pt. I, p. 19); Frances, xebba, Josephine, xebba, ahwa Caruana et v. Catherine Bugeja et, Court of Appeal (Inferior Competence), per Mr Justice Anthony Ellul, 24 June 2016; Francis Borg v. Claire Magri, Civil Court, First Hall, per Mr Justice Joseph Zammit McKeon, 11 July 2013; Giulia Briffa v. il-Kummissarju tal-Artijiet et, Civil Court, First Hall (Constitutional Competence), 21 June 2013; Chemimart Limited v. Reckitt Benckiser Healthcare International Limited, Civil Court, First Hall, per Mr Justice Anthony Ellul, 15 October 2012; Peter Paul u Mary Anne konjugi Mifsud v Dentist Michael Vella Haber et, Court of Magistrates (Gozo) Superior Jurisdiction, per Mr Justice Anthony Ellul, 17 February 2010; and Bernard Zammit v. Thomas Zhrawski et, Small Claims Tribunal, per Adjudicator Dr Grazio Mercieca, 11 July 2005. 28

See Id-Direttur tar-Registru Pubbliku fil-kwalità tieghu ta’ Registratur taz-Zwigijiet v. X, Civil Court, First Hall, per Mr Justice Joseph R. Micallef, 21 May 2008. 29

See Maria Wismayer v. John Gracey u martu Josephine Gracey, Court of Appeal, 30 September 2016.

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in Chapter IV of the Constitution of Malta and the European Convention Act;30 (vii) any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included – contra proferentem:31 (viii) no one gives what he does not have – nemo dat quod non habet; 32 (ix) when the plaintiff does not prove his case the defendant is acquitted – actore non probante reus absolvitur;33 (x) no one should be a judge in his own case – nemo judex in causa propria;34 (xi) that which is null produces no effect – quod nullum est nullum producit effectum;35 (xii) if a person passes on a thing to another person and does not enjoy a right over that thing, the other person does not acquire any right over that thing – solvit jure dantis solvitur et ius accipientis; 36 30

See Dr Eddie Fenech Adami noe et v. Direttur tal-Wireless and Telegraphy Department et, Civil Court First Hall, per Mr Justice Patrick Vella, 4 July 2002 (I would have preferred ‘proportionality’ to ‘reasonableness’).

Chemimart Limited v. Reckitt Benckiser Healthcare International Limited, Civil Court, First Hall, per Mr Justice Anthony Ellul, 15 October 2012.

Joseph Piscopo et v. Anthony Darmanin et, Civil Court, First Hall, per Mr Justice Joseph A. Filletti, 1 March 2001.

PBS Ltd. v. Phoenix Company Ltd., Civil Court, First Hall, per Mr Justice Philip Sciberras, 20 October 2004.

Il-Qorti v. Antoine R. Camilleri, Civil Court, First Hall, per Mr Justice Victor Caruana Colombo, 9 November 1990. For a list of other cases enunciating this principle, see Kevin Aquilina, ‘Empowering the Citizen Under the Law: The Administrative Justice Bill’, Law & Practice, the Malta Chamber of Advocates, Valletta, Issue 14, December 2006, pp. 6-14, note 6 at p. 10. 35

Joseph P. Portelli nomine v. Joseph Zahra et, Court of Appeal, Inferior Jurisdiction, per Chief Justice Joseph Said Pullicino, 9 May 1997.

Ibid.

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(xiii) the principle against retroactivity of the law – lex non habet oculos retro;37 (xiv) no criminal action can be instituted twice for the same cause of action (also known as the prohibition against double jeopardy) – ne bis in idem;38 37 Joseph Said nomine v. Alfred Grima et, Civil Court, First Hall, per Mr Justice Tonio Mallia, 12 December 2002; Il-Pulizija (Spettur Jason Agius) v. Stephen Urry, Court of Magistrates (Malta) as a Court of Criminal Judicature, per Magistrate Dr Consuelo-Pilar Scerri Herrera, 27 July 2004; Il-Kummissjoni Nazzjonali Persuni b’Dizabilità v. Michele Peresso Limited, Civil Court, First Hall, per Mr Justice Noel Cuschieri, 25 February 2005; Renato J Costigan v. Malta Drydocks Corporation et, Court of Appeal, Inferior Competence, 19 October 2005; Il-Pulizija (Spettur Joseph Cordina) v. Pierino Fiorini et, Court of Magistrates (Malta) as a Court of Criminal Judicature, per Magistrate Dr Consuelo-Pilar Scerri Herrera, 20 February 2006; Kummissarju tat-Taxxi Interni v. Alfred Caruana, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 10 January 2007; Emanuel Zammit v. Kummissarju tat-Taxxi Interni, Civil Court, First Hall, per Mr Justice Lino Farrugia Sacco, 5 March 2007; Il-Kummissjoni Nazzjonali Persuni b’Dizabilità v. Michele Peresso Limited, Court of Appeal, 28 September 2007; Kummissarju tat-Taxxi Interni v. Frank Fenech Camilleri pro et noe, Civil Court, First Hall, per Mr Justice Lino Farrugia Sacco, 19 February 2008; Anthony Frendo v. Kummissarju tat-Taxxi Interni, Civil Court, First Hall, per Mr Justice Lino Farrugia Sacco, 24 June 2008; Emanuel Zammit v. Kummissarju tat-Taxxi Interni, Court of Appeal, 29 May 2009; Mario Borg v. Avukat Generali, Constitutional Court, 6 October 2009; Anthony Frendo v. Kummissarju tat-Taxxi Interni, Court of Appeal, 30 July 2010; Kummissarju tat-Taxxi Interni v. Frank Fenech Camilleri pro et noe, Court of Appeal, 7 May 2010; Angelo Attard u Margerita Attard v. Anthony Attard et, Court of Magistrates (Malta), per Magistrate Dr Gabriella Vella, 4 June 2010; Kummissarju tat-Taxxi Interni v. Angelo Bonanno, Civil Court, First Hall, per Madam Justice Lorraine Schembri Orland, 12 December 2013; Maria Dolores Calleja v. l-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar, Court of Appeal, Inferior Competence, per Mr Justice Mark Chetcuti, 27 November 2014; Il-Pulizija v. Miguel De Giorgio, Court of Criminal Appeal, Inferior Competence, per Mr Justice David Scicluna, 25 March 2015; XXX v. Kummissarju tat-Taxxa fuq il-Valur Mizjud, Administrative Review Tribunal, per Magistrate Dr Gabriella Vella, 28 May 2015; Il-Pulizija (Spettur Maurice Curmi) v. Giulio k/a Julius Sciberras, Court of Magistrates (Malta) as a Court of Criminal Judicature, per Magistrate Dr Donatella M. Frendo Dimech, 5 July 2016; Il-Periti arkitetti Alexander Bezzina et v. Gasan Enterprises Limited, Civil Court, First Hall, per Madam Justice Jacqueline Padovani Grima, 22 February 2017. See also the discussion below in relation to article 9 of the Interpretation Act. 38

John Gauci v. Il-Kummissarju tat-Taxxi Interni et, Civil Court, First Hall, per Mr Justice Victor Borg Costanzi, 10 May 1990; Il-Pulizija (Spettur Joseph Grech) v. Eugenio Said, Court of Criminal Appeal, Inferior Competence, per Mr Justice Carmel A. Agius, 28 May 1993; Il-Pulizija v. Sandro Psaila, Court of Criminal Appeal, per Mr Justice Vincent A. De Gaetano, 1 July 1994; Il-Pulizija (Spettur Joseph Cordina) v. John Micallef, Civil Court, First Hall, Constitutional Competence, per Mr Justice Joseph R. Micallef, 28 February 2007; Francis Vella v. l-Avukat Generali, Civil Court, First Hall, Constitutional Competence, per Mr Justice Joseph R. Micallef, 29 September 2009; Il-Pulizija (Spettur Victor Aquilina) v. George Azzopardi, Court of Criminal Appeal, per Mr Justice Michael Mallia, 23 January 2014; Il-Pulizija (Spettur Maurice Curmi) v. Alfred Fenech, Court of Criminal Appeal, per Mr Justice Michael Mallia, 26 June 2014; Il-Pulizija v. Eugene Galea, Court of Criminal Appeal, 15 February 2017.

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(xv) to the consenting person no injury is done – volenti non fit injuria. In Paul Vassallo v. Carmelo Pace, decided by the Court of Appeal on 5 March 1986, the court held as follows:

B’riferenza għall-imsemmi prinċipju volenti non fit injuria, ic-Charlesworth, Law of Negligence, pagna 498, josserva: ‘A person who makes an agreement with another, either expressly or by implication, to run the risk of injury caused by that other, cannot recover for damage caused to him by any of the risks he agreed to run... the first point is that the Courts will not find the existence of an implied agreement unless the person who is alleged to have made it had full knowledge of the nature and extent of the risk to be run. The other point is that although plaintiff had full knowledge of the nature and extent of the risk and, with that knowledge, in fact incurred it, he will not be prevented from recovering unless the circumstances are such as to show that in incurring the risk he did it on the terms that the loss should fall on him and not on some other person. This is because, as has often been pointed out, the maxim is volenti non fit injuria, and not scienti non fit injuria. Knowledge of the risk is therefore only one of the elements which has to be taken into account in deciding whether the inference that the plaintiff agreed to take the risk upon himself can be drawn; (xvi) no one is considered to have committed a wrong who exercises a legal right due to him – qui suo iure utitur non videtur damnum facere;39 39

Jane Spiteri v Nicholas Camilleri, Civil Court, First Hall, per Mr Justice Joseph Said Pullicino, 10 January 1992, where the court held as follows: ‘Illi huwa prinċipju fundamentali illi min jezerċita dritt li jispetta lilu ma jistax jitqies li f’dan l-ezerċizzju ikun responsabbli għall-ħsara li bħala konsegwenza jista’ jbagħti ħaddiehor, in omaġġ għall-massima qui suo iure utitur non videtur damnum facere, bil-konegwenza li d-dritt għar-rikors għall-protezzjoni tal-Qorti, huwa dritt li l-ezercizzju tiegħu mic-ċittadin ma għandu bl-ebda mod jiġi mxekkel’. See also Visual

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(xvii) what is not filed in the records of proceedings cannot be taken cognizance of – quod non est in actis non est in mundo. In Carmelo Zammit v. Kummissjoni ghallKontroll tal-Izvilupp, decided by the Court of Appeal on 10 April 1995, the Court of Appeal explained this maxim as follows:

Il-massima quod non est in actis non est in mundo hija bażilari f’kull sistema proċedurali ta’ l-ordinament ġġuridiku; Hemm żewġ korollarji prinċipali ta’ din il-massima; l-ewwel wieħed huwa li dak li jiġri, li jissuċċiedi, fit-Tribunal waqt it-trattazzjoni ta’ kawża għandu jirriżulta biss mill-verbali redatti mit-Tribunal stess jew alternattivament, f’dawk il-każijiet fejn il-ġudikant jirrifjuta li jirreġistra fatt rilevanti għal kawża, il-parti għandha tippreżenta Nota jew Rikors seduta stante sabiex min ikun qed jippresjedi t-Tribunal ikun filpożizzjoni li jipprovdi fuq il-fatt; Ebda ġudikant infatti m’għandu jinbidel f’xhud ta’ dak li ġara quddiemu fl-udjenza u la huwa u lanqas l-uffiċjali l-oħra tat-Tribunal ma huma ammessi bħala xhieda fuq ir-res gestae ta’ l-udjenzi’;40 It-tieni korrolarju huwa li t-Tribunal għal dawk li huma fatti li fuqhom irid jiddeċidi, jridu jirriżultaw milland Sound Communications Limited v. Mario Camilleri et, Civil Court, First Hall, per Mr Justice Raymond C. Pace, 28 February 2002; fl-atti tal-mandat ta’ sekwestru kawtelatorju numerat 1488/02 fl-ismijiet John Zarb v. Port Cottonera Limited, Civil Court, First Hall, per Mr Justice Tonio Mallia, 18 September 2002; and Carmen Camilleri nomine v. Joseph Bellizzi, Civil Court, First Hall, per Mr Justice Albert J. Magri, 2 October 2002. 40

For a list of case law in relation to the institution of a civil action against the judiciary, members of adjudicating tribunals and their subpoena as witnesses, see Kevin Aquilina, ‘Remedies under Maltese Law for Wrongful State Action in Breach of EU Law: A Case of Crying Over Spilt Milk?’ in Eugene Buttigieg (ed.)., Rights and Remedies 2010: Enforcing One’s Rights Under EU Law, Ħal-Tarxien, Gutenberg Press, June 2011, pp. 87-130, at pp. 98-101.

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atti u l-ġudikant ma jistax juża jew jagħmel riferiment għal fatti, anke jekk huwa personalment ikun jaf bihom, jekk dawn ma jirriżultawx mill-atti tal-kawża. (xviii) hear the other side – audiatur et altera pars;41 (xix) a matter adjudged is taken for truth – res judicata pro veritate habetur;42 (xx) a matter adjudged makes white black; black white – ex nigro facit album et ex albo nigrum;43 (xxi) a person who does anything through another is considered as doing it himself – qui per alium facit ipse fecisse videtu;44 (xxii) the most probable outcome from an act – id quod plerumque accidit;45 41

Carmelo Zammit v. Kummissjoni ghall-Kontroll tal-Izvilupp, Court of Appeal, 10 April 1995. For a list of other cases enunciating this principle, see Kevin Aquilina, note 34 at note 7, pp. 12-14. 42

William Cassar Torreggiani v. Direttur tas-Sigurtà Socjali, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 26 January 2005.

Ibid.

L-Avukat Dr Josè A. Herrera noe et v. Tancred Tabone et noe, Court of Appeal, Commercial Competence, 22 January 1992. 45

Silvio Mifsud et noe v. Godwin Abela et noe, Civil Court, First Hall, per Mr Justice David Scicluna, 5 May 2000; Carmelo sive Charles Micallef et v. Richard Spiteri et, Court of Appeal, 15 January 2002; Anthony Vella v. Godwin Savona pro et noe, Civil Court, First Hall, 22 March 2002; Anthony Turner et v. Francis Agius et, Court of Appeal, 28 November 2003; Dr Pierre Ellul MD et v. Alexis Bonnici, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 10 October 2005; A v. Dr Raymond Pace et noe, Civil; Court, First Hall, per Mr Justice Philip Sciberras, 22 February 2006; Constantino Abela et v. Korporazzjoni Enemalta, 21 February 2007; Emma Anderson v. Direttur tas-Sigurtà Socjali, Court of Appeal. Inferior Competence, per Mr Justice Philip Sciberras, 20 February 2008; Anthony Degiovanni noe et v. Mark Lombardo et, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 28 March 2008; Brian Micallef v. Brian Type Services Limited et, Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 27 October 2009; Rita Sultana et v. Antoine Colombo, Court of Appeal, Inferior Competence, 19 February 2010; B4 Textiles Company Limited (C8858) v. Joseph Abela, Small Claims Tribunal, per Adjudicator Dr Yana Micallef Stafrace, 3 March 2011; The Police v. Ismail Guclu, Court of Criminal Appeal, per Mr Justice David Scicluna, 14 September 2011; B4 Textiles Company Limited v. Joseph Abela, Court of Appeal, Inferior Competence, per Mr Justice Raymond C. Pace, 29 March 2012; David Anastasi et v. Dominic Micallef, Civil Court, First Hall, per

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(xxiii) connection of causes – simultaneus processus;46 (xxiv) against a written document, one does not adduce as a proof a witness’s testimony – contra testimonium scriptum testimonium non scriptum non fertur;47 (xxv) the discovery of fraud vitiates (invalidates) all aspects of a judicial decision, contract or transaction whatsoever – fraus omnia corrumpit;48 (xxvi) whoever held possession first enjoys such possession – prior in tempore, potiore in jure.49 Mr Justice Joseph Azzopardi, 12 December 2012; Brian Micallef v. Brian Type Services Limited et, Court of Appeal, 31 January 2014; Jesmond Demanuele v. Fabio Briffa et, Small Claims Tribunal, per Adjudicator Dr Yana Micallef Stafrace, 21 April 2015; Therese Pace noe v. Carmela Borg, Court of Appeal, 18 July 2017; and F. Mercieca & Sons Mobili Limited v. Josef Curmi, Civil Court, First Hall, per Mr Justice Toni Abela, 13 October 2017. 46

Markiz Joseph Philip Testaferrata Bonici et v. Evelyn Micallef et, Court of Appeal, Inferior Competence, per Mr Justice Philip Sciberras, 10 January 2007; Avv Michele Mattone et v. Gatt, Gales & Co. noe, Court of Appeal, Inferior Competence, 26 June 2009; Paul Fiorentino et v. David Jones noe, Civil Court, First Hall, per Mr Justice Mark Chetcuti, 5 November 2013; Citadel Insurance plc et v. Shaunvic Felice et, Civil Court, First Hall, per Mr Justice Lawrence Mintoff, 12 July 2017; and Joseph Fenech v. Carlos Falzon et, Civil Court, First Hall, per Mr Justice Lawrence Mintoff, 25 October 2017.

See supra note 8.

Pupa Holdings Limited v. Tor Limited et, Court of Appeal, 6 February 2015;

Il-Pulizija (Spettur P. Camilleri) v. Anthony Bonavia, Court of Criminal Appeal, Inferior Competence, per Mr Justice Joseph Galea Debono, 6 November 2002; Socjetà Macpherson Mediterranean Limited pro et noe v. Socjetà Conquest Limited et, Civil Court, First Hall, per Mr Justice Albert J. Magri, 9 December 2002; Guido Vella A & C.E. v. Franco Xuereb, Court of Appeal, 27 February 2003; J.E.M. Investments Limited v. Avukat Dr Kevin u Corinne konjugi Dingli, Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 4 December 2003; Saviour Buttigieg v. Lawrence Fino et noe, Civil Court, First Hall, per Mr Justice Tonio Mallia, 29 April 2004; Martin Spiteri v. Emanuel Cachia, Civil Court, First Hall, per Mr Justice Tonio Mallia, 10 June 2004; Giovanna Cutajar v. Louis Pace, Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 30 June 2006; Irene Bonavia et v. Joseph Camilleri, Civil Court, First Hall, per Mr Justice Joseph Azzopardi, 23 March 2007; Pupa Holdings Limited v. Tor Limited, Civil Court, First Hall, per Mr Justice Joseph Zammit McKeon, 28 January 2010; Green Dot Malta Limited v. Green.Mt Limited, Civil Court, First Hall, per Mr Justice Raymond C. Pace, 27 May 2010; Chetcuti Cauchi Advisors Ltd. noe et v. K.T.A. Import Trading Limited, Civil Court, First Hall, per Mr Justice Mark Chetcuti, 2 May 2011; Joseph Pirotta et v. Peter Incorvaja et, Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 25 October 2011 (two judgments); Francis Vella v. Antonio Sammut, Court of Magistrates (Malta), per Magistrate Dr Gabriella Vella. 29 November 2012; ITC Limited et v. CBM Breweries Limited, Civil Court, First Hall, per Madam Justice Lorraine Schembri Orland, 30 April 2013; Norman Cutajar et v. Farr Limited, Court of Appeal, 25 October

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Other principles referred to in statutory interpretation are the following:

(i) the greater contains the less – omne majus continet in se minus; (ii) that which was originally void, does not by lapse of time become valid – quod ab initio non valet in tractu temporis non convalescit; (iii) words of a law are to be construed in the light of their context – noscitur a sociis; (iv) where legislation demands or allows a certain result or action, it follows that such legislation also demands or permits everything which is reasonably necessary to bring about the result or to perform the action effectively; (v) when the law allows someone something, that without which the thing itself cannot exist is also permitted – quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest; (vi) if legislation prohibits or permits a certain thing it follows that accessory or ancillary acts or matters are also prohibited or permitted – ex accessorio eius, de quo verba loquntur; 2013; William Portelli v. Pawlu Portelli, Court of Appeal, 31 October 2014; St. George’s Bay Hotel Limited v. Bay Street Holdings Limited et, Civil Court, First Hall, per Madam Justice Lorraine Schembri Orland, 16 January 2014; Francis Vella v. Antonio Sammut, Court of Appeal, Inferior Competence, per Madam Justice Edwina Grima, 16 December 2014; Pupa Holdings Limited v. Tor Limited et, Court of Appeal, 6 February 2015 and 7 October 2016; Ta’ Gniedi Properties Limited et v. Pupa Holdings Limited, Civil Court, First Hall, per Madam Justice Lorraine Schembri Orland, 29 October 2015; William Portelli v. Pawlu Portelli et, Court of Appeal, 16 December 2015; Carmen Camenzuli v. Joseph Vella, Civil Court, First Hall, per Madam Justice Lorraine Schembri Orland, 14 July 2016; Mark A. Attard Trading Company Limited v. Shoemarket retail Stores Limited, Court of Appeal, 25 November 2016; Warrant of prohibitory injunction Louena Aquilina et v. Clayton Vassallo, Civil Court, First Hall, per Mr Justice Silvio Meli, 14 March 2018.

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(vii) where an enabling law confers a power, it also by implication confers those powers which are reasonably necessary to achieve the principal aim; (viii) the jurisdiction of the courts is not restricted or ousted by law unless there is an express provision stating that a court’s jurisdiction is to be excluded; (ix) a statutory provision which denies or restricts the right of a person to appeal to a court shall be interpreted strictly; (x) when a law repeals or amends a previously obtaining law, the repeal or amendment of a previously obtaining law shall be effected expressly; (xi) when a new law repeals or amends a previously obtaining law and the objects of the two conflicting provisions are in pari materia (essentially the same), the earlier and subsequent law shall be read together and reconciled together. Where such reconciliation is impossible, it is the later provision which shall prevail (lex posteriori derogat priori);50 (xii) a provision shall be interpreted so as to burden or restrict those to whom it applies as little as possible; (xiii) provisions imposing burdens are to be interpreted strictly – dispositiones odiosae; (xiv) someone whose rights have been infringed by legislation is entitled to compensation even though the legislation concerned does not provide for this. Exclusion of compensation must be enacted;

Il-Pulizija v. Richard Caruana, Court of Criminal Appeal, Inferior Competence, per Mr Justice Lawrence Quintano, 20 May 2013.

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(xv) penal clauses must be strictly interpreted – in poenis strictissima verborum significatio accipienda; (xvi) if a penal clause is ambiguous, the court will give the accused the benefit of the doubt – poenalibus causis benignus interpretandum est (in dubio pro reo).

The Casus Specialis – The Interpretation Act

Of particular relevance to statutory interpretation is the Interpretation Act51 which defines and lays down general rules of application for all statutory law, whether primary legislation or delegated legislation (secondary legislation or tertiary legislation). Article 4 of the Interpretation Act is a case in point when it provides as follows:

Grammatical variations, gender, number, etc. 4. In this Act and in every other Act whether passed before or after the commencement of this Act, unless the contrary intention appears (a) the definition of any word or expression shall extend to all grammatical variations and to cognate expressions of the word or expression so defined; (b) words importing the masculine gender shall include females and words importing the female gender shall include males; (c) the words ‘spouse’ and ‘husband and wife’ shall be construed as referring to a spouse of either sex who has contracted marriage in accordance with the Marriage Act; (d) words in the singular shall include the plural, and words 51

Chapter 249 of the Laws of Malta.

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in the plural shall include the singular; (e) the expression ‘person’ shall include a body or other association of persons whether granted legal personality, in accordance with the provisions of the Second Schedule to the Civil Code, or not. In relation to paragraph (b) above, reference can be made to Victoria mart Raymond Cassar et noe v. Carmel Schembri noe.52 What is interesting about this provision is that is refers to two sexes: males and females. But we also know that there is a third sex, which is neither male nor female, but transsexual. Transsexuals are not referred to in this provision even if Malta has enacted two laws with deal with transsexual people, notably the Gender Identity, Gender Expression and Sex Characteristics Act,53 and the Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act.54 In relation to paragraph (e), the following points emerge from case law: •

according to Registratur tal-Qrati v. Silvio Camilleri pro et noe et,55 ‘person’ in relation to tortious liability includes a limited liability company (article 4(d) of the Interpretation Act) read in conjunction with articles 1031 and 1032 of the Civil Code. The same point was made in Id-Direttur, Qrati Civili u Tribunali v I.T.C. Limited (C10309);56

•

in Joseph Borg pro et noe v. Joseph Pace pro et noe et,57 the court held that the expression ‘person’ in article 4(d) of the Interpretation Act applies to a legal entity

Civil Court, First Hall, per Mr Justice Silvio Meli, 14 November 2012.

Chapter 540 of the Laws of Malta.

Chapter 567 of the Laws of Malta.

Civil Court, First Hall, per Mr Justice Raymond C. Pace, 17 January 2001.

Civil Court, First Hall, per Mr Justice Raymond C. Pace, 26 June 2008.

Civil Court, First Hall, per Mr Justice Noel Cuschieri, 18 June 2004.

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committing a tort; •

in Francis Busuttil & Sons Ltd v. Saviour Cacciattolo,58 the court distinguished between legal personality and incorporation stating that both a corporate and a noncorporate body enjoy legal personality. It therefore was not correct to state that only registered companies enjoyed legal personality;

•

in Is-Socjeta’ KPMG et v. Antonius Glieden Detlef,59 it was held that a body or association of persons applied both to civil partnerships and other organisations and associations;

•

in Joseph u Marie Theresa konjuugi Mamo et v. Avukat Dottor Simon Tortell pro et,60 the court held that the term ‘person’ included civil and commercial partnerships and other organisations and associations which do not fall under the categories of civil or commercial partnership;

•

in Taha Kuymizakis noe v. Busietta Gardens Madliena Limited,61 the court held that in terms of article 4(d), a company may be liable for fraud;

•

in Ir-Registratur, Qrati Civili u Tribunali v. Mamma Mia Company (C32995) et,62 the court held that contempt of court proceedings applied to companies;

•

in Joseph Buttigieg ID 86748 (M) et noe v. Mark Camilleri,63 the court held that a body or association of persons may be defamed and may exercise the action under the Press Act for defamatory libel;

Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 31 May 2005.

Court of Magistrates (Gozo), 22 May 2007.

Civil Court, First Hall, per Mr Justice Raymond C. Pace, 26 June 2008.

Court of Appeal, decided on 31 October 2008.

Civil Court, First Hall, per Mr Justice Raymond C. Pace, 26 March 2009.

Court of Appeal, Inferior Competence, per Mr Justice Raymond C. Pace, 29 October 2009.

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•

in Mark Lombardo et v Kunsill Lokali Fgura et,64 the court confirmed that a local council could sue for defamatory libel and that such action as such did not breach freedom of expression in the given circumstances. But in the instant case the court found in favour of the applicants because the criticism, did not exceed the acceptable limits of criticism in relation to persons holding public office;

•

in Francis Ciantar pro et noe v. Partit Nazzjonalista,65 the court was called upon to decide whether a property at Qormi belonged to the plaintiffs proprio, or to the Qormi Nationalist Party Club or to the Nationalist Party. It held that Dr George Hyzler appeared on the contract in a representative capacity on behalf of the Nationalist Party Club, not in a personal capacity. But did the Qormi Nationalist Party Club enjoy a legal personality whereby it could acquire property rights or was it simply on organ of the Nationalist Party and whatever benefit it derived would have belonged to the Nationalist Party? The court ruled that the property belonged to the Nationalist Party not to its Qormi Club;

•

in Joseph Borg pro et noe et v. Pio Camilleri pro et noe et,66 the court concluded that a commercial partnership can be found liable for tortious and quasi-tortious liability; the court reached also the same conclusion in Direttur Generali (Dwana) già Kontrollur tad-Dwana v. Andrew Ellul Sullivan pro et noe et;67

•

in Dottor Michele Martone pro et noe v. Raymond Gatt noe et,68 the court held that a person includes both

Constitutional Court, 8 January 2010.

Civil Court, First Hall, per Mr Justice Giannino Caruana Demajo, 30 November 2010.

Civil Court, First Hall, per Mr Justice Joseph Zammit McKeon, 29 September 2011.

Civil Court, First Hall, per Mr Justice Silvio Meli, 26 March 2013.

Civil Court, First Hall, per Mr Justice Anthony Ellul, 27 January 2014.

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a physical and a legal person, both whether the said legal person enjoys juridical personality in terms of the Second Schedule to the Civil Code and whether it does not enjoy such legal personality. It concluded that the appointment of a controller in terms of the Banking Commerce Act,69 need not necessarily be a physical person. It therefore admitted a civil partnership for the purposes of carrying out the duties of controller. The court quoted an interesting Court of Appeal decision in the names E. Avallone v. A. Delia proprio et nomine, 16 December 1991, where the latter court held as follows: ‘Il-persuni fiżici li jiftehmu u jagħmlu skrittura privata jew att pubbliku biex jiffurmaw soċjeta ċivili, ċioè mhux kummerċjali, joħolqu persuna ġuridika distinata u separata mill-istess persuni li jikkomponuha, kif jidher ċar mid-disposizzjonijiet tal-Kodici Civili – mill-artikolu 1644 sa l-artikolu 1688. Minn dawn is-soċjetajiet hawn numru konsiderevoli bħal ma huma dawk tal-Każini tal-Banda fid-diversi bliet u rħula, kazini tal-isport, speċjalment tal-futbol, soċjetajiet politiċi kostitwiti f’partiti u simili. Dawn kollha għandhom personalità ġuridika separata u distinta mill-membri tagħhom.’; •

in Victor Denaro et v. Msida Red Star Amateur Football Club et,70 the court held that a club enjoyed a separate and distinct juridical personality;

•

in Kummissarju ta’ l-Artijiet v. Maria Theresa Deguara Caruana Gatto et,71 the court held that for the purposes of Chapter IV of the Constitution and the European Convention Act, ‘person’ did not include the Commissioner for Lands.

Other provisions in the Interpretation Act which construe 69

Chapter 371 of the Laws of Malta.

Civil Court, First Hall, per Madam Justice Lorraine Schembri Orland, 24 November 2016.

Constitutional Court, 6 September 2010.

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provisions in statutory law relate to the exercise of powers and duties. Article 6 thereof provides that in any Act, whether passed before or after the commencement of this Act -

(c) where such Act confers a power on the holder of an office, and such power relates to any business of the Government, or is exercisable as part of the functions of a department of Government for which responsibility has been assigned to a Minister under the Constitution, such power shall be exercisable by the holder of that office, and except to the extent that the holder of that office is expressly declared by any law not to be subject to the direction or control of any other person or authority, the Minister responsible for that business or department of the Government shall have power, even where such power is expressed to be exercisable in the discretion (whether absolute or otherwise) of the holder of that office, to give such direction in writing relative to the exercise of that power (including a direction ordering the reversal of a decision) as such Minister may deem fit: Provided that on employment, promotion or disciplinary matters in relation to individual employees, such direction may only be given by the Prime Minister and in such a case the head of department shall inform the Public Service Commission.72 In the case of the Interpretation Act, it is provided that subsidiary legislation may be retrospective:

9. Any law made after the commencement of this Act by virtue of a power conferred by any Act passed either before or after the commencement of this Act may, unless the contrary intention appears in the Act conferring that 72

In relation to this provision, see Dr Eddie Fenech Adami noe et v. id-Direttur tal-Wireless and Telegraphy Department et, Constitutional Court, 10 October 2003; George Whelpdale et noe v. il-Kontrollur tad-Dwana u l-Ministru tal-Finanzi, Court of Appeal, 31 May 2004; Carmelo sive Charles Dingli pro et noe et v. Kontrollur tad-Dwana et, Court of Appeal, 27 March 2009; and Johann Said v Kummissarju tal-Pulizija, Court of Appeal, 18 December 2012.

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power, be made to operate retrospectively to any date which is not earlier than the commencement of such Act or, where different provisions of such Act come into operation on different dates, the commencement of the provision under which the subsidiary law is made: Provided that no person shall be made or shall become liable to any punishment in respect of anything done or omitted to be done before the commencement of the subsidiary law.73 The Interpretation Act saves the validity of a subsidiary law where the wrong provision in the parent act is quoted as the enabling power for the making of such delegated legislation. Article 10 whose marginal note reads ‘Subsidiary laws to be valid in case of wrong reference to enabling powers’. It provides as follows:

10. Where by virtue of any Act, whether passed before or after the commencement of this Act, power is conferred to make subsidiary laws, any subsidiary law that may lawfully be made thereunder shall be valid and shall have effect whether or not it purports to be made in exercise of those powers and even if it purports to be made in exercise of other powers. Relevant cases for the proper understanding of this provision are Il-Pulizija v. Joe Dimech.74 In the Smoking in Premises Open to the Public Regulations, 2004 (Legal Notice 414 of 2004) reference was made to Article 9 instead of to Article 14 of the Tobacco (Smoking Control) Act, Chapter 315, when regulation 3 of LN 414 of 2004 was made. However, the correct reference should have been article 14, at 73

Pertinent case law concerning this provision is Carmelo sive Charles Dingli pro et noe et v. Kontrollur tad-Dwana et, Civil Court, First Hall, per Mr Justice David Scicluna, 25 January 2005 and Court of Appeal 27, March 2009; Reverendu Joseph Tabone v. L-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar, Court of Appeal, Inferior Competence, 26 June 2012; Vincent Portelli v. L-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar, Court of Appeal, Inferior Competence, per Mr Justice Raymond C Pace, 30 October 2012; and Lawrence Grima v. L-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar, Court of Appeal, Inferior Competence, per Mr Justice Anthony Ellul, 5 July 2013. 74

Court of Criminal Appeal, per Mr Justice Giannino Caruana Demajo, 14 July 2006.

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least in relation to regulation 3. In the enactment of a subsidiary law care should be taken to ensure that such instrument is made in accordance with the principle that it is not inconsistent with the provisions of the parent Act – the Act under which the subsidiary law is made – see, for instance, Louis F. Cassar and Christian Holland in their name and on behalf of and in representation of the Association Youth for the Environment v. The Hon. Prime Minister and Minister of the Interior.75 In Article 12, the Interpretation Act regulates the effect of repeal in future Acts and of amendments in any Act. In sub-article (3) it states that:

(3) For the purposes of subarticle (2) ‘amendment’ means and includes any amendment, modification, change, alteration, addition or deletion, in whatsoever form or manner it is made and howsoever expressed, and includes also a provision whereby an Act or a provision thereof is substituted or replaced, or repealed and substituted, or repealed and a different provision made in place thereof.76 75

Civil Court, First Hall, per Mr. Justice Victor Borg Costanzi, 20 July 1988.

Pertinent case law under this provision includes Il-Kummissarju tat-Taxxi Interni v. Joseph Serge, Court of Appeal, 25 May 2001; Il-Pulizija v. Mary Grech, Court of Criminal Appeal, Inferior Competence, 6 January 2003; Il-Pulizija v. Roger Degorgio, Court of Criminal Appeal, per Chief Justice Emeritus Vincent De Gaetano, 5 August 2003; Il-Pulizija v. Carmel k/a Charles Attard, Court of Criminal Appeal, Inferior Competence, per Chief Justice Vincent de Gaetano, 30 December 2004; Il-Pulizija v. Michael Azzopardi, Court of Criminal Appeal, Inferior Competence, per Mr Justice David Scicluna, 12 January 2007; Il-Pulizija v. Joseph Tabone, Court of Criminal Appeal, Inferior Competence, per Chief Justice Emeritus Vincent De Gaetano, 14 September 2007; Il-Pulizija v. George Barbaro Sant, Court of Criminal Appeal, Inferior Competence, per Mr Justice Joseph Galea Debono, 18 October 2007; Jack Galea v. Direttur Generali tax-Xoghlijiet et, Court of Appeal, 9 January 2009; Il-Pulizija v. Guda Taddeus sive Teddy Rapa, Court of Criminal Appeal, Inferior Competence, per Chief Justice Vincent De Gaetano, 31 July 2009; Il-Pulizija v. Christian Callus, Court of Criminal Appeal, Inferior Competence, per Mr Justice David Scicluna, 16 June 2010; Il-Pulizija v. Reuben D’Amato, Court of Criminal Appeal, 19 January 2012 (three different judgment delivered on same day); Asfaltar Limited (C8313) v. Direttur tal-Kuntratti, Civil Court, First Hall, per Mr Justice Joseph Zammit Mic Keon, 31 October 2013; Ir-Repubblika ta’ Malta v. Spiridione Mercieca, Criminal Court, per Mr Justice Lawrence Quintano, 11 April 2014; Il-Pulizija v. Frans Attard, Court of Criminal Appeal, Inferior Competence, per Chief Justice Silvio Camilleri; 10 April 2015; and Dingli Co. International Ltd noe v. Rainbow Productions Limited, Court of Appeal, 27 April 2015; Ir-Repubblika ta’ Malta v. Daniel

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Article 13 of the Interpretation Act contemplates the possibility of an offence being committed by an association of persons as follows:

13. Where any offence under or against any provision contained in any Act, whether passed before or after this Act, is committed by a body or other association of persons, be it corporate or unincorporate, every person who, at the time of the commission of the offence, was a director, manager, secretary or other similar officer of such body or association, or was purporting to act in any such capacity, shall be guilty of that offence unless he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of the offence: Provided that, except in respect of offences under or against a provision contained in an Act in which a provision similar to that of this article occurs, the provisions of this article shall apply only to offences committed after the commencement of this Act.77

Felice, Criminal Court, per Madam Justice Edwina Grima, 22 September 2016. 77

Of relevance for the construction of article 13 are the following cases: Andrew Ellul Sullivan et v. Il-Kummissarju tal-Pulizija et, Civil Court, First Hall, Constitutional Competence, 8 July 2004; David Jones et noe v. Avukat Dottor Giuseppe Mifsud Bonnici noe et, Court of Appeal, 19 April 2005; Il-Pulizija v. Patrick Vella, Court of Criminal Appeal, Inferior Competence, per Mr Justice Joseph Galea Debono, 31 August 2006; Carmel Borg et v. Direttur Sigurtà Socjali, Court of Appeal, 30 November 2007; Andrew Ellul Sullivan et v. Il-Kummissarju tal-Pulizija et, Constitutional Court, 18 June 2008; Il-Pulizija (Spettur Kylie Borg v. Anthony Zahra et, Court of Criminal Judicature, per Magistrate Dr Consuelo Scerri Herrera, 19 July 2016; Il-Pulizija v. Anthony Balzan, Court of Criminal Appeal, Inferior Competence, per Mr Justice Michael Mallia, 26 March 2015; Il-Pulizija v. Anthony Bezzina et, Court of Criminal Appeal, Inferior Competence, per Madam Justice Edwina Grima, 19 November 2015; Il-Pulizija v. Paul Camilleri et, Court of Criminal Appeal, Inferior Competence, per Madam Justice Edwina Grima, 30 June 2016; Il-Pulizija v. Daniela Debattista, Court of Criminal Appeal, Inferior Competence, per Madam Justice Edwina Grima, 16 November 2016; and Il-Pulizija v. Omisses, Ivan Gauci et, Court of Magistrates (Malta) as a Court of Criminal Judicature, per Magistrate Dr Consuelo Scerri Herrera, 19 January 2017.

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Interpretation Of Treaties

Although this paper has primarily focused on principles of law relevant to legislative drafting and statutory interpretation from the national law point of view, even though the national law might be reflective of foreign law, in so far as treaty provisions incorporated into the Maltese legal system are concerned, reference has to be made to the Vienna Convention on the Law of Treaties78 which sets out the applicable rules of construction for treaties. These rules apply to the incorporated treaty provisions into Maltese Law. Although conventions are a very important source of public international law, reference should also be made to the other sources of public international law as well as contained in Article 38 of the Statute of the International Court of Justice.79

7. Conclusion The object of this paper was not to provide a comprehensive enumeration and explanation of all legal maxims applied in legislative drafting and statutory interpretation. The aim was to select some of the most salient principles of law as applied mainly in legislation and case law and explain their use either in legislative drafting or in statutory interpretation or in both. It is augured that the task commenced in this paper highlighting the most popular principles of law will be developed further to provide as comprehensive as possible a rendering of the salient principles of law which pervade the Maltese legal system.

1155 U.N.T.S. 331.

1 U.N.T.S. XVI.

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Notarial Law

The E-Notary: A study of the progress of Electronic Notarisation and Registration in Europe Dr. Chantelle Borg

Dr. Chantelle Borg read law at the University of Malta in 2011 whence she graduated as Doctor of Laws in November 2017. She obtained the warrant of Notary Public in May 2017 and is a Notary Public in private practice. This article is based on her thesis entitled ‘The E-Notary: A Study of the Progress of Electronic Notarisation and Registration in Europe’.

VOLUME XXIX

Introduction

cross-border transaction, whereby both the transferor and the transferee sign a notarial instrument, transferring rights over immovable property, in their respective states of residence would be more expedient for the parties. In legal jurisdictions, where the said notarial instrument must be published by a Notary, the Notary needs to be able to carry out his functions electronically to conclude this cross-border transaction. As a result, technology has already started to revolutionise the manner in which notaries carry out their functions, which include the drawing up and execution of notarial instruments in accordance with the requirements imposed by law, the observation of the formalities, which are needed for the publication of such instruments, and the registration of such instruments. The progress in technology has not only provided notaries with the opportunity to draft the notarial instruments by electronic means but has also incentivised e-signatures, with which notaries and parties can electronically sign such notarial instruments. Technological advancement has also catered for the electronic registration of such instruments. Hence, the aim of this paper is to provide an overview of the best practices of electronically signing and registering notarial instruments in particular European jurisdictions, selected on the basis of their being the most advanced or having registered the most progress in this area. Notarial instruments make the world of inter vivos transfers of rights over immovable property go round. Indeed, the said transfers require registration in Member States1 , even though their roots may be traced to different legal families. Cross-border transfers of rights over immovable property are on the increase, owing to technological advancement which is , making the world more akin to a global village. In fact, technology facilitates the sharing of information, regarding immovable property all around the world. 1

Hereinafter referred to as ‘MS’.

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Thus, there is the need to bridge the gap between the notarial world and the technological world. Technology itself constitutes a means by which notaries can communicate with one another across the globe to share their legal knowledge on their national laws, concerning transfers of immovable property. Thus, a notarial instrument, which transfers immovable property across borders by technological means, facilitates and expedites the procedure of transfer and registration. Consequently, this paper traces the roots of the states legal system back to their legal families and tackles the contemporary rules in relation to contracts, which are imposed by International and European Union2 legislation on the states legal systems, even though they follow different legal traditions. Subsequently, it seeks to demonstrate whether e-notarisation, which in this paper refers to the process whereby the appearers to a notarial instrument sign such instrument using their e-signatures before their notary and in turn their notary signs it electronically as well, is allowed and the manner in which electronic notarial instruments are signed. Then it shall determine whether national laws envisage the possibility of remote execution of the authentic instrument even where the law requires the physical and simultaneous presence of appearers before the same notary, or a modification thereof, which signifies that the formal requirement of the physical and simultaneous presence of the appearers before their notary is replicated in an electronic and online environment. Hence, remote notarisation entails the virtual presence of the appearers before the notary via an online system. This paper proceeds to assess whether the law caters for electronic registers and the procedure for electronic registration.

The legal system of the selected states

A preliminary study on the principal legal families, which constitute the foundation of the chosen legal jurisdictions, is necessary for a thorough comparative study on their national laws. The main legal families existing in the contemporary world are three: the Civil law 2

Hereinafter referred to as ‘EU’.

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family, also known as the Romano-Germanic family, the Common law family and the family of Socialist laws.3 The Civil law family has emerged from distinct sources throughout history. In fact, the Civil law tradition is composed of different sub-traditions, namely Roman law, Canon law, Commercial law, Revolutionary law and legal science. The modern Civil legal system is constituted by written law,4 whereas the Common law tradition is often largely uncodified and finds its basis on precedent. Thus, in Common law jurisdictions, the law emanates from the precedent, laid down by the judiciary.5 The family of Socialist laws can be distinguished from the Civil and Common law families due to the revolutionary character of its laws, even though it encompasses features of the Civil law tradition. This family was conceived in the Union of Soviet Socialist Republic and was adopted by Republic European and Asian legal systems.6 The modern legal systems of France, Spain, Germany and Estonia comprise of characteristics belonging to the Civil law tradition. Indeed, the oldest sub-tradition of the civil law model, namely Roman law, was the driving force behind the progress of the French and Spanish legal system. Besides, the basic concepts of the French and Spanish legal system, in particular the supremacy of written law over other sources and the requirement of a transparent legislative organ of the state, emanate from the Civil law tradition.7 However, the German legal system is different for it is influenced not only by principles of Roman law as applied during the Middle 3 René David and John E.C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (2nd edn, The Free Press 1978) 21-3. 4

John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd edn, Stanford University Press 2007) 2-14.

5 The Robbins Collection, School of Law (Boalt Hall) University of California at Berkeley, ‘The Common Law and Civil Law Traditions’ <https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html> accessed on 1 September 2018. 6

David and Brierley (n 1) 25-6.

Catherine Elliott, Catherine Vernon and Eric Jeanpierre, French Legal System (2nd edn, Pearson Education Limited 2006) 1; Frederik Swennen (ed), Contractualisation of Family Law - Global Perspectives (Springer International Publishing 2015) 293.

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Ages, but also by the written law of the nineteenth century. Nevertheless, the German legal system differs immensely from the Common law tradition.8 Furthermore, the Estonian legal system can also be classified as a Civil legal system, notwithstanding that it differs from the French, Spanish and German legal systems because Article 2(4) of the Estonian Criminal Procedure maintains that the Supreme Court’s judgements, regarding the implementation of law, are also considered sources of criminal procedural law. Therefore, the decisions of the Supreme Court are considered as a supplementary source law. Consequently, the Estonian legal system gives more significance to the Supreme Court’s decisions than the French, Spanish and German legal systems do.9 On the other hand, the Scottish legal system is hybrid for it embraces characteristics, derived from both the Civil and the Common law traditions. Roman law commenced to percolate in Scottish law in the middle of the sixteenth century when Scottish lawyers, who studied law in France and later in the Netherlands, applied Roman law when there was a lacuna in Scottish legal principles. The influence of Roman law in the Scottish legal system became more prominent with the establishment of a civil law court, the Court of Session, in 1532 and the subsequent drafting of laws, which embraced principles of Roman law, amongst other sources. The influence of Roman law began to wane when Scotland entered into the Act of Union of 1707. Hence, the Common law tradition became more dominant in the Scottish legal system. 10 Nevertheless, Scot private law still follows the civil law tradition.11 Consequently, this study focuses on legal systems, which are 8 Nigel G. Foster and Satish Sule, German Legal System and Laws (4th edn, Oxford University Press Inc. 2010) 3. 9

Julia Laffranque, ‘The Judicial System of Estonia and European Union Law’ (2005) 33(2) International Journal of Legal Information 224-5.

10 Bryan Clark and Gerard Keegan, Scottish Legal System Essentials (Dundee University Press, 2012) 2-6. 11

William Tetley, ‘Mixed Jurisdictions: Common Law vs Civil Law (Codified vs Uncodified)’ (1999) 4 Uniform Law Review 894.

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based upon different legal families. However, their private law, which encompasses laws in relation to contracts, is influenced by the Civil law tradition.

Law in relation to contracts

France, Germany, Spain, Estonia and Scotland are all subject to International and EU legislation because of their accession to the United Nations and the EU. Thus, these states have adopted the United Nations Commission on International Trade Law12 Model Law on Electronic Commerce (1996),13 and subsequently have transposed the provisions contained in the European Directive on E-Commerce.14 The UNICTRAL Model Law on Electronic Commerce was the first to embrace the fundamental principles of non-discrimination, technological neutrality and functional equivalence as the foundation of modern e-commerce law. The principle of non-discrimination prohibits the denial of legal effect, validity or enforceability to a document on the ground that it is in electronic form. The principle of neutrality obliges the adoption of provisions, which are neutral with regards to the technology utilised, aiming to accommodate future progress without the need of further legislation. The functional equivalence principle endows electronic communication with the value given to paper-based communications, provided certain criteria are met to achieve the goal which particular concepts, belonging to the traditional paper-based system, attempt to fulfil.15 Moreover, the Directive on E-Commerce obliges MS to ensure that their legal system allows contracts to be concluded by electronic means in Article 9(1). The legal requirements, imposed by MS to the contractual procedure, can neither hinder the use of electronic 12

Hereinafter referred to as ‘UNICTRAL’.

UNICTRAL Model Law on Electronic Commerce.

Directive on E-Commerce.

UNICTRAL <http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/ 1996Model.html> accessed on 01 September 2018.

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contracts nor deprive electronic contracts of their legal effectiveness and validity on the ground that they were created by electronic means. However, Article 9(2) endows MS with the power to prohibit electronic contracts which, create or transfer rights in real estate(except for rental rights); require ipso jure the involvement of courts, public authorities or professions exercising public authority; grant suretyship and concern collateral securities furnished by persons acting for purposes outside their trade, business or profession; or fall under the category of family law or by the law of succession. Although all the aforementioned MS are in line with the UNICTRAL Model Law on Electronic Commerce and the European Directive on E-Commerce, French law goes one step further, for Article 1174 of the French Code Civil also caters for electronic contracts to be stored electronically.16 However, Article 1366 of the French Code Civil only endows the electronic writing with the same probative validity granted to paper-based writing if its issuer can be identified and the electronic writing can be archived under conditions which guarantee its integrity.17 Similarly, Article 126a(2) in conjunction with Article 127(3) of the German Bürgerliches Gesetzsbuch,18 require the parties to provide each other with a counterpart of the contract, signed with a qualified e-signature in accordance with the Electronic Signature Act or a different e-signature for the contract to be valid. Nevertheless, if the latter e-signature is used, a qualified e-signature may be subsequently required.19 Furthermore, French and German law differ from other national laws for they restrict the contracts, which can be carried out electronically. Article 1175 of the French Code Civil forbids the constitution of electronic contracts regarding family law, governed 16 French Code Civil, Legifrance <https://www.legifrance.gouv.fr/affichCode. do;jsessionid=AAA258E37CF336628E6E06213B242944.tpdila21v_2?idSectionTA=LEGISCTA000032008860&cidTexte=LEGITEXT000006070721&dateTexte=20170521> accessed on 01 September 2018. 17

French Code Civil, Legifrance (n 13).

Hereinafter referred to as ‘BGB’.

BGB, Bundesministerium der Justiz und für Verbraucherschutz < http://www.gesetze-im-internet.de/bgb/BJNR001950896.html> accessed on 01 September 2018.

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by law of succession or concerning securities, unless they are entered into by a person in the course of his profession.20 Likewise, Article 126(3) of the BGB provides that written form may be replaced by electronic form, unless the national law leads to a different conclusion. For instance, the law prohibits a life annuity commitment to grant maintenance under family law, a commitment to fulfil an obligation and a declaration of the acknowledgement of debt from being issued in electronic form.21 However, the fifth objective of the Directive on E-Commerce holds that it does not apply to the activities of notaries, which are directly and specifically carried out in their exercise of public authority. Besides, the first article of the UNICTRAL Model Law on Electronic Commerce limits its sphere of application to data messages used for commercial activities and leaves it in the hands of its MS to decide whether to limit or extend this law’s application in their national law, according to the suggestions of the Commission.22 Thus, the question whether the national law of these states overtly allows electronic notarial instruments arises.

E-notarisation

The specific law, allowing e-notarisation of an electronic notarial instrument, transferring immovable property inter vivos, is sought in the contractual law of these states. The modern legal systems of France, Germany, Spain and Estonia incorporate the laws relating to contracts in their Civil Code. On the other hand, the legal system of Scotland does not encompass a Civil Code, even though its private law leans towards the Civil law tradition. Nonetheless, Scottish contracts are regulated by a written law: The Requirements of Writing (Scotland) Act 1995. Only French law conveys the message outright that it permits 20

French Code Civil, Legifrance (n 13).

BGB, art 761, 780, 781, Bundesministerium der Justiz und für Verbraucherschutz (n 15).

UNICTRAL Model Law on Electronic Commerce.

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e-notarisation. Article 1369 of the French Code Civil, states that ‘[l]’acte authentique est celui qui a été reçu, avec les solennités requises, par un officier public ayant compétence et qualité pour instrumenter. Il peut être dressé sur support électronique s’il est établi et conservé dans des conditions fixées par décret en Conseil d’État. Lorsqu’il est reçu par un notaire, il est dispensé de toute mention manuscrite exigée par la loi.’23 Hence, a notary is allowed to receive electronic authentic instruments. On the other hand, the Requirements of Writing (Scotland) Act 1995, varies from the French Code Civil, for it does not expressly state that it allows e-notarisation. In fact, Section 1(2)(a) states that either a paper-based or an electronic document is required for the constitution of contract or unilateral obligation for the creation, transfer, variation or extinction of a right over land.24 Section 9B(3) explains that such electronic contract is valid if ‘(a) the offer is contained in one or more electronic documents, (b) the acceptance is contained in another electronic document or in other such documents, and (c) each of the documents is authenticated by its grantor or grantors’.25 Therefore, it specifically allows inter vivos transfers of rights over immovable property to be done electronically but falls short of overtly stating that these transfers can be authenticated by the notary electronically. The Spanish Codigó Civil y legislación complementaria,26 and

23 Translation: ‘An authentic act is one that has been received, with the solemnities required by

a public officer having jurisdiction and quality to authenticate. It can be compiled electronically if it is established and preserved under conditions set by a decree of the State Council. When it is received by a notary, it is exempt from any handwritten requisite required by law.’ French Code Civil, Legifrance <https://www.legifrance.gouv.fr/affichCode. do;jsessionid=AAA258E37CF336628E6E06213B242944.tpdila21v_2?idSectionTA=LEGISCTA000032037831&cidTexte=LEGITEXT000006070721&dateTexte=20170521> accessed on 05 September 2018. 24

Requirements of Writing (Scotland) Act 1995, The National Archives <http://www.legislation.gov.uk/ukpga/1995/7/section/1> accessed on 05 September 2018.

Requirements of Writing (Scotland) Act 1995, The National Archives <http://www.legislation.gov.uk/ukpga/1995/7/section/9B> accessed on 05 September 2018.

Codigó Civil y legislación complementaria, Boletín Oficial del Estado < https://www.boe. es/legislacion/codigos/codigo.php?id=34&modo=1&nota=0&tab=2> accessed on 05 September 2018.

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the German BGB,27 contrast with the Requirements of Writing (Scotland) Act 1995 for they do not expressly permit electronic deeds, transferring immovable property inter vivos. Article 80 of the General Part of the Civil Code Act of Estonia states that a transaction in electronic format can be entered into, provided its format enables repeated reproduction, contains the names of the parties to the transaction and is electronically signed by the said parties, but does not explain whether the said transaction includes the inter vivos transfer of immovable property.28 However, these three national laws are identical to the Requirements of Writing (Scotland) Act 1995 in that they do not take the bull by the horns and clearly state that e-notarisation is allowed.

5. Signatures instrument

the

electronic

authentic

Electronic authentic instruments must be signed by the parties and notary in order to be valid. Thus, this article demonstrates whether the national laws of these MS cater for the signatures with which notaries and appearers must sign electronic notarial instruments. Both the Estonian Notarisation Act and the German Beurkundungsgesetz29 restrict the variety of electronic notarial instruments, which can be signed by the notary using his e-signature, albeit different restrictions are imposed. In fact, Article 38(11) of the Estonian Notarisation Act only allows the notary to sign a digital authentic instrument (?) by means of his digital signature and maintains that a digital notarial notation can only be issued with regards to a digital document.30 Besides, Article 39ª of the BKG authorises the notary to sign with his qualified e-signature, for it 27

BGB, Bundesministerium der Justiz und für Verbraucherschutz (n 15).

General Part of the Civil Code Act of Estonia, Riigi Teataja < https://www.riigiteataja.ee/en/ eli/ee/Riigikogu/act/528082015004/consolide> accessed on 05 September 2018. 29

Hereinafter referred to as ‘BKG’.

Notarisation Act, Riigi Teataja <https://www.riigiteataja.ee/en/eli/ee/Riigikogu/ act/506062016001/consolide> accessed on 08 September 2018.

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holds that:

‘Beglaubigungen und sonstige Zeugnisse im Sinne des § 39 können elektronisch errichtet werden. Das hierzu erstellte Dokument muss mit einer qualifizierten elektronischen Signatur nach dem Signaturgesetz versehen werden. Diese soll auf einem Zertifikat beruhen, das auf Dauer prüfbar ist. Mit dem Zeugnis muss eine Bestätigung der Notareigenschaft durch die zuständige Stelle verbunden werden. Das Zeugnis soll Ort und Tag der Ausstellung angeben.’31 However, only the documents laid down in Article 39, namely certificates regarding registration in Public Registers, authentication of copies, transcripts, photocopies and similar copies and other attestations can be signed electronically by the notary. Nevertheless, none of these laws determine the manner in which appearers can sign the electronic authentic instrument. Scottish law, contrary to Estonian and German law, only establishes the manner in which the appearer signs the electronic notarial instrument. Indeed, Article 9B of the Requirements of Writing (Scotland) Act holds that the electronic notarial instrument is not valid if its grantor does not sign it with his e-signature.32 French and Spanish law, in contrast with the Estonian Notarisation Act, the BKG and the Requirements of Writing (Scotland) Act, empower notaries to draft all their notarial instruments electronically and to sign their electronic authentic instruments by means of an e-signature. Article 17 of the French Décret Relatif aux Actes Établis par les Notaires33 explains that: 31 Translation: ‘39a Certificates and other attestations, within the meaning of § 39, may be established electronically. The document created for this purpose must be provided with a qualified electronic signature according to the signature law. This is to be based on a certificate, which can be tested in the long term. The certificate must entail a confirmation of the notarial property by the competent authority. The certificate shall indicate the place and date of the exhibition.’ BKG, Bundesministerium der Justiz und für Verbraucherschutz <http://www.gesetze-im-internet.de/bundesrecht/beurkg/gesamt.pdf> accessed on 08 September 2018. 32

Requirements of Writing (Scotland) Act, The National Archives (n 21).

Hereinafter referred to as ‘Décret’.

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‘L’acte doit être signé par le notaire au moyen d’un procédé de signature électronique sécurisée conforme aux exigences du décret n°2017-1416 du 28 Septembre 2017 relatif à la signature électronique. Cette signature est apposée par le notaire dès l’acte établi, si besoin après réunion des annexes à l’acte. Pour leur signature, les parties et les témoins doivent utiliser un procédé permettant l’apposition sur l’acte notarié, visible à l’écran, de l’image de leur signature manuscrite.’34 Similarly, Article 17 bis (1) of the Spanish Ley del Notariado de 28 de Mayo de 1862 clarifies that: ‘Los instrumentos públicos a que se refiere el artículo 17 de esta Ley, no perderán dicho carácter por el sólo hecho de estar redactados en soporte electrónico con la firma electrónica avanzada del notario y, en su caso, de los otorgantes o intervinientes...’.35 Hence, the latter Article is similar to Article 17 of the French Décret for both allow the notary to sign the electronic authentic instrument with his e-signature. Nevertheless, they differ from one another because Article 17bis(1) allows the appearers to sign the electronic authentic instrument with their e-signatures in Spain whereas Article 17 obliges the appearers to affix the image of their handwritten signature to it in France.36 Consequently, French and Spanish law regulate the manner in which notaries and parties sign electronic notarial instruments. German and Estonian law, differ from French and Spanish law, for they empower notaries to sign particular notarial instruments 34

Translation: ‘The act must be signed by the notary using a secure electronic signature process, which complies with the requirements of Decree No 2017-1416 of 28th September 2017 relating to the electronic signature. This signature is affixed by the notary of the established act, if necessary after the attachment of the annexes to the act. For signing, the parties and witnesses must use a method for affixing on the deed, visible on the screen, the image of their handwritten signature.’ Décret Relatif aux Actes Établis par les Notaires, Legifrance <https://www.legifrance. gouv.fr/affichTexte.do;?cidTexte=JORFTEXT000000511476> accessed on 10 September 2018.

Translation: ‘The public instruments referred to in article 17 of this Law, will not lose their character because they are written in electronic format with the advanced electronic signature of the notary and, as the case may be, the grantors or interveners…’. Ley del Notariado de 28 de Mayo de 1862, Boletín Oficial del Estado <https://www.boe.es/buscar/pdf/1862/ BOE-A-1862-4073-consolidado.pdf> accessed on 10 September 2018. 36

Décret Relatif aux Actes Établis par les Notaires, Legifrance (n 28); Ley del Notariado de 28 de Mayo de 1862, Boletín Oficial del Estado (n 29).

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by virtue of an e-signature. However, they are silent regarding the manner in which appearers have to sign such notarial instruments. Scottish law contrasts with German and Estonian law for it requires that the grantors sign such notarial instruments with their e-signature but does not cater for the signature with which notaries can sign such instruments.

6. The physical presence of appearers before the notary The requirement of the physical and simultaneous presence of appearers before the same notary in order to sign a notarial instrument, is generally present in all legal systems following the civil law tradition. However, the inception of EUFides, which is a project intended to facilitate cross-border transfers of rights over immovable property, has led to the exigency to permit appearers, situated in different locations, to conclude the electronic notarial instruments. Hence, there is the need to modify or phase out this requisite or to allow remote notarisation, which entails the replication of the requirement of the simultaneous and physical presence of the parties before the notary by an electronic, online environment. All the national laws are silent with regards to remote notarisation. However, Article 20 of the French Décret modifies the requirement of the physical presence of the appearers to enable notaries to participate in EUFides. Indeed, it maintains that:

‘Lorsqu’une partie ou toute autre personne concourant à un acte n’est ni présente ni représentée devant le notaire instrumentaire, son consentement ou sa déclaration estrecueilli par un autre notaire devant lequel elle comparaît et qui participe à l’établissement de l’acte. Cet acte porte la mention de ce qu’il a été ainsi établi. L’échange des informations nécessaires à l’établissement de l’acte s’effectue au moyen du système de transmission de l’information mentionné à l’article 16. Chacun des notaires recueille le consentement et la 536

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signature de la partie ou de la personne concourant à l’acte puis y appose sa propre signature. L’acte est parfait lorsque le notaire instrumentaire y appose sa signature électronique sécurisée.’37 Hence, each party to an electronic notarial instrument has the opportunity to appear physically before his own notary. Subsequently, a party affixes his e-signature or an image of his handwritten signature to the instrument before his notary, who in turn signs it using his e-signature and then sends it to the notary of the other party. Upon receipt of the signed electronic instrument, the other party attaches his e-signature or image of his handwritten signature to it in the presence of his notary, who afterwards signs it electronically and sends the signed instrument back to the former party. On the other hand, Spanish and Scottish law differ from French law for they do not modify this requirement. In fact, the Spanish and Scottish law are two peas in a pod with regards to this issue because they do not impose the requirement of physical and simultaneous presence of the parties before the same notary to sign an electronic authentic instrument. Similarly, to Spanish and Scottish law, the Estonian Notarisation Act does not mention the need of the physical presence of the appearers before the notary to conclude an electronic authentic instrument digital notarial notation of a fact. However, the Estonian Notarisation Act contrasts with French, Spanish and Scottish law for it requires the parties to be present before the notary for the notarial authentication of a transaction, declaration or fact. Indeed, Article 6 in conjunction with Article 13(1) holds that the notarial authentication requires the notarial instrument to be read to the parties, present before a notary and to be 37 Translation: ‘Where a party or any other person contributing to an act is neither present nor represented before the notary, consent or statement is collected by another notary before whom he appears and participates in the establishment of the act. This act mentions what has been well established. The exchange of information necessary for the establishment of the act is by means of information transmission system mentioned in Article 16. Each of the notaries collects the consent and signature of the party or person contributing to the act then affix his own signature. The act is perfect when the notary affixes his secure electronic signature.’ Décret Relatif aux Actes Établis par les Notaires, Legifrance (n 28).

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signed by the hand ofboth the parties and the notary.38 German law resembles Estonian law because it still requires the physical presence of the appearers before the notary when transferring land inter vivos. Indeed, Section 925(1) of the BGB holds that the parties to a notarial instrument, transferring the ownership of land, must be present before a notary to declare such agreement.39 Thus, most of the states tackle this requirement in their national law, albeit in a different manner, while few of them make no mention of it at all, notwithstanding the fact that the private law of all these states is based upon the civil law tradition.

E-registration

The purpose of registration of authentic instruments in a register varies in different legal systems. The French legal system follows the ‘consensual system’, which entails the transfer of a right over immovable property by means of an authentic instrument, that is effective between the parties to such instrument. Thus, registration of the right renders it effective vis-à-vis third parties. On the other hand, German law embraces the ‘tradition or delivery system’, whereby ownership is transferred by registration in the register. In fact, the appearers give their consent to transfer ownership in a real agreement, referred to as Einigung in Article 925 of the BGB, but ownership is transferred upon registration, solely performed by formal authorization in a notarial instrument, denominated Eintragungsbewilligung. The latter system is also adopted by Estonia. The intermediary system is the Spanish system of ‘title and tradition’, termed titulus and modus, which requires both the notarial instrument and the delivery of the property for a complete transfer. This system differs from German system for the right is transferred upon the execution of the notarial instrument whereas registration does not complete the transfer but protects the purchaser from 38

Notarisation Act, Riigi Teataja (n 25).

BGB, Bundesministerium der Justiz und für Verbraucherschutz (n 15).

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third parties.40 Contrastingly, in Scotland the delivery of the notarial instrument to the grantee bestows the grantee with a personal right. This personal right is altered into a real right by registration in the Land Register or recording in the Sasine Register.41 Therefore, a study of the registration of notarial instruments established in national laws of the chosen legal system, is required. French law is the only national law, which caters for the registration of electronic notarial documents in a central timer, as contemplated in Article 28 of the French Décret, which upholds that:

‘L’acte établi sur support électronique doit être conservé dans des conditions de nature à en préserver l’intégrité et la lisibilité. L’ensemble des informations concernant l’acte dès son établissement, telles que les données permettant de l’identifier, de déterminer ses propriétés et d’en assurer la traçabilité, doit être également conservé. L’acte notarié dressé sur support électronique est enregistré pour sa conservation dans un minutier central dès son établissement par le notaire instrumentaire…’.42 Although the role of the Spanish registration system stands halfway between that of the French and German systems, the diction of Article 112(1) of the Spanish Ley 24/2001, de 27 de Diciembre, de Medidas Fiscales, Administrativas y del Orden Social (hereinafter referred to as ‘Ley 24/2001’) bears a strong resemblance to that in 40

Sergio Càmara-Lapuente, ‘Registration of Interests as a Formality of Contracts: Comparative Remarks on Land Regiters within the Frame of European Private Law’ (2005) 6 European Review of Private Law, 797-839; Ingmar Vali, Kadri Laud and Loori Paadik, ‘Electronic Land Register, which Forcefully Eliminates Real Estate Fraud and Corruption’ (XIX World Registry Law Congress Santiago de Chile 2014), 1 <http://www.rik.ee/sites/www.rik.ee/files/elfinder/ article_files/Electronic%20land%20register%20which%20forcefully%20eliminates%20real%20 estate%20fraud%20a%20%20%20.pdf> accessed on 15 September 2018.

41 1979 Act Registration Manuals, ‘Examination of Title’ <https://rosdev.atlassian.net/wiki/ display/79RM/L03+Examination+of+Title> accessed on 15 September 2018. 42 Translation: ‘The document drawn up in electronic form must be kept in such a way as to preserve its integrity and legibility. All the information concerning the act as soon as it is established, such as the data making it possible to identify it, determine its properties and ensure its traceability, must also be retained. The notarial deed drawn up in electronic form is registered for its preservation in a central timer as soon as it is drawn up by the undersigned notary...’. Décret Relatif aux Actes Établis par les Notaires, Legifrance (n 28).

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Article 137(1) of the German Grundbuchordnung43 . In fact, the former explains that: ‘Salvo indicación en contrario de los interesados, los documentos susceptibles de calificación e inscripción en los Registros de la Propiedad, Mercantiles o de Bienes Muebles podrán ser presentados en éstos por vía telemática y con firma electrónica avanzada del notario autorizante...’44 Similarly, the latter maintains that:

‘Ist eine zur Eintragung erforderliche Erklärung oder eine andere Voraussetzung der Eintragung durch eine öffentliche oder öffentlich beglaubigte Urkunde nachzuweisen, so kann diese als ein mit einem einfachen elektronischen Zeugnis nach § 39a des Beurkundungsgesetzes versehenes elektronisches Dokument übermittelt werden...’.45 Therefore, both laws provide for the registration of electronic notarial instruments in a Register, even though the nomenclature assigned to them is different. Nonetheless, Spanish law requires the electronic notarial instrument to be signed by an advanced e-signature in order to be registered whereas German law is more lenient for it allows the registration of an electronic notarial instrument signed by a simple e-signature. Hence, Spanish law and German law diverge from each other in this regard. Furthermore, a foreign notary is also allowed to register his deeds in the Spanish Register. In fact, in 1984 the German Notary Public Friedrich Lemberger authorized a notarial deed of sale by virtue of which a German citizen acquired from the power of Pedro Francesco, 43

Hereinafter referred to as ‘GBO’.

Translation: ‘Unless otherwise indicated by the interested parties, documents susceptible for qualification and registration in the Registrar of Property, Commercial or Furniture Records may be submitted in electronic form and with an advanced electronic signature of the authorising notary...’ Ley 24/2001, Boletín Oficial del Estado <https://boe.es/buscar/pdf/2001/ BOE-A-2001-24965-consolidado.pdf> accessed on 18 September 2018. 45

Translation: ‘If a declaration or other condition for registration is required to be registered by a public or publicly certified document, this document may be submitted as an electronic document bearing a simple electronic certificate pursuant to Article 39a of the Notarisation Act…’. GBO, Bundesministerium der Justiz und für Verbraucherschutz < http://www.gesetze-im-internet.de/bundesrecht/gbo/gesamt.pdf> accessed on 18 September 2018.

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the half undivided share of a property located in Tenerife and gratuitously reserved the right of usufruct vita natural durante on the property with the consent of the co-owner. When the German notary registered the deed of sale in the Spanish Land Registry, the issue of the legality of such registration arose. The Supreme Tribunal of Spain on 19 June 2012 held that registration of foreign notarial deeds by foreign notaries in the Spanish Registrar is legal.46 Moreover, Scottish and Estonian law deviate from the path taken by other national laws because they speak of a computerised system rather than a Register, within which electronic notarial instruments are stored. In fact, Section 99 of the Land Registration etc. (Scotland) Act 2012 explains that the Keeper of the Registers of Scotland controls the computer system, by virtue of which electronic documents can be created, the electronic generation and communication of applications for registration can be made in the register and deeds can be automatically registered in the register.47 Likewise, Article 16(12) of the Estonian Notaries Act imposes the duty upon notaries to record their notarial instruments in the digital notarial archives, situated in the electronic notary information system. Article 441(1) elucidates that this system comprises of digital notarial archives and books, which contain information regarding the notaries’ professional activities and other functions required by these activities.48 The current Estonian e-system and databases diminish the possibility of high level forgery of documentation and ownership. The issue of security was catered for subsequent to the fraud case, whereby a woman demonstrated a forged passport of Brunhild Dorothea Tiesenhausen to the notary for identification in 1999. The notary was meticulous in identifying the person and determining her intent and this forgery was impossible to notice. Hence, she managed to sell Tiesenhausen’s property to another person by means of a registered notarial deed. This person sold it to another, who in turn 46

Sentence 998/201, 19 June 2012, Supreme Tribunal of Spain.

Land Registration etc. (Scotland) Act 2012, The National Archives < http://www.legislation. gov.uk/asp/2012/5/section/99 > accessed on 20 September 2018. 48 Notaries Act, Riigi Teataja < https://www.riigiteataja.ee/en/eli/519062017009/consolide> accessed on 20 September 2018.

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sold it to a company which had been set up a few days prior to the sale. Subsequently, Tiesenhausen filed a judicial action, which reinstated her as the rightful owner and convicted these three offenders.49 Consequently, all the states cater for electronic registration and storage of electronic notarial instruments in their national laws, even though they do not provide the same kind of electronic register.

Procedure for E-registration

Some MS lay down different procedures for electronic registration and preservation of electronic notarial instruments. Furthermore, other MS do not touch upon this procedure in their national law, even though they establish an electronic register for this purpose. For instance, Article 28 of the French Décret states that the electronic notarial instrument is recorded for its preservation in a central timer as soon as it is established by the notary and the latter, or the notary who holds it retains exclusive access to it. Nevertheless, it does not explain the procedure of such registration and preservation.50 The Estonian Notaries Act is akin to the French Décret for it is silent regarding the procedure of registration.51 Scottish law, similarly to French and Estonian law, does not mention the procedure of electronic registration of electronic notarial instruments. Nonetheless, it differs from all other national laws for it specifies the requisites, which need to be fulfilled to enable the e-registration of electronic notarial instruments. In fact, Section 9G(1) of the Requirements of Writing (Scotland) Act 1995 permits an electronic document to be recorded in the Register of Sasines and registered in the Land Register of Scotland, the Books of Council and Session, or in any other register managed by the Keeper, provided that it is authenticated by the grantor/s and that the document, signature 49

Vali, Laud and Paadik (n 44) 9-10.

Décret Relatif aux Actes Établis par les Notaires, Legifrance (n 28).

Notaries Act, Riigi Teataja (n 41).

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and, if needed, certification comply with regulations.52 German law and Spanish law vary from French, Estonian and Scottish law for they shed light on the procedure of registration, even though, the majority of the requisites differ. Indeed, Article 136(1) of the GBO sustains that the request to register an electronic instrument shall be deemed to have been received by the Land Registry Office, once it has been recorded.53 The electronic time stamp on the application ought to demonstrate the exact time of registration. When the notary submits the request, he must acknowledge its submission by an electronically signed confirmation, which indicates the date of receipt. Only electronic documents, which are adequate to be processed by the Land Registry Office, can be considered as legally valid. 54 Contrastingly, Article 112(3) of the Spanish Ley 24/2001, burdens the notary with the duty to record the receipt and content of the notification sent to him in the form of a testimony subsequent to the successful registration of the instrument.55 However, Article 136(3) of the GBO and Article 112(2) of the Spanish Ley 24/2001 coincide for they oblige the Land Registry Office and Registrar of Property, Commercial or Furniture Records respectively to inform the notary if the submission is denied.56 Therefore, only Spanish and German law give an insight in the registration procedure of electronic notarial instruments, even though all the states stipulate in their national laws that electronic notarial instruments must be registered.

Requirements of Writing (Scotland) Act 1995, The National Archives <http://www.legislation.gov.uk/ukpga/1995/7/section/9G> accessed on 29 September 2018.

GBO, Bundesministerium der Justiz und für Verbraucherschutz (n 38).

Ley 24/2001, Boletín Oficial del Estado (n 37).

GBO, Bundesministerium der Justiz und für Verbraucherschutz (n 38). Ley 24/2001, Boletín Oficial del Estado (n 37).

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Conclusion

This thematic study gives an overview of the practices followed in these MS to electronically sign and register notarial instruments. As a result, it is clear that MS do not always opt for the same way to update provisions of their national laws to keep the same pace with a world that never ceases to change, due to the progress of technology. Hence, may the best practices which emerge from this paper, inspire the Maltese legislator with the amendments needed to cater for electronic execution and registration of Notarial acts.

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Sports Law

A legal overview of recent developments concerning match-fixing in Malta Dr. Robert Dingli

Dr Robert Dingli is an associate at Dingli & Dingli Law Firm, and President of the Malta Association of Sports Lawyers. 546

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1. Introduction: The Evolvement of Match-Fixing over the Years

s demonstrated in recent events that have sent shockwaves throughout the sports industry and beyond, sport, too, is susceptible to scandals, with a growing number of these being related to ‘match-fixing’. This phenomenon, referred to in a broader sense to ‘manipulation of sports competitions’, is neither confined to matches, nor to the sole manipulation of the final outcome of a sports competition, but covers any intentional and improper alteration of the course or result of a sports competition in order to remove all or some of the uncertainty associated with this competition, with a view to obtaining an undue advantage for oneself or for others.1 This phenomenon does not just take place on the field, but also off the field, making the threat even greater.2 Whilst such an issue has always existed from sports’ early days, manipulation of sports competitions has taken on worrying proportions since the beginning of the new millennium, not least thanks to the rapid development of technology, whereby live results of a sporting event are instantly available at one’s fingertips, the lucrative commercialisation of the sports industry as well as competitive broadcasting deals. The popularity of sports has always attracted those willing to take advantage of its lucrative aspects. Whilst traditionally match-fixing is somehow always linked to football events, other sporting events have also become the victim of such a phenomenon, including, but not limited to, horse racing3, cricket4, 1 Gorse, S., & Chadwick, S., ‘The prevalence of corruption in international sport: A statistical analysis.’ (Coventry: Centre for the International Business of Sport, 2011) <www.egba.eu/pdf/ Report-FINAL.pdf> accessed 20 July 2018. 2

Dawn Aquilina & Angelo Chetcuti “Match-fixing: The case of Malta. International Journal of Sport Policy and Politics” [2013] 6. 107-128.

3 British Horseracing Authority, ‘Former British-licensed jockey Andrew Heffernan and eight unlicensed individuals charged with serious breaches of the rules of racing’ (British Horseracing Authority, 4 October 2012) <www.britishhorseracing.com/press_releases/former-britishlicensed-jockey-andrew-heffernan-and-eight-unlicensed-individuals-charged-with-seriousbreaches-of-the-rules-of-racing/> accessed 20 July 2018. 4

The Guardian, ‘Steve Smith accepts Cricket Australia ban for ball tempering’ (The Guardian, 4 April 2018) <www.theguardian.com/sport/2018/apr/04/steve-smith-accepts-cricket-australia-

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tennis, snooker and the latest sports craze e-sports.5 Back in 2014, the International Centre for Sport Security astonishingly announced that 80% of global sport betting is illegally transacted!6 The situation has become so worrying that Federbet, a Brussels-based organisation that investigates illegal betting, declared that match-fixing in Europe has reached ‘epidemic’ proportions!7 A sporting contest can be manipulated by either one of two primarily methods; match-fixing and spot fixing. Whilst matchfixing concerns the fixing in advance of a particular sporting event result, such as a half time score, spot-fixing concerns particular events during the sporting event itself, such as a double fault caused by a tennis player. In both techniques, there is always the involvement of a person who is actively engaged in the said sporting event, with such active person usually being a player, club official or referee, whose involvement would ensure that the fixed event occurs.8 Match-fixing is today widely regarded as one of the major threats facing contemporary sport.9 Besides the rapid development of such peril, another obstacle in the fight against match-fixing emerges from Asia’s illegal gambling market, whereby China’s illegal gambling market alone was calculated to be worth in excess of $600 billion a year!10 This, coupled with the fact that the criminal networks involved generally operate on a global scale unfortunately make any police ban-for-ball-tampering> accessed 20 July 2018. 5

Maddy Mayers, ‘StarCraft: Remasters Pro Arrested For Match-fixing’ (Compete, 15 March 2018) <www.compete.kotaku.com/starcraft-remastered-pro-arrested-for-match-fixing-1823809648> accessed 20 July 2018.

6 Sport Integrity Forum 2014, Astonishing scale of betting fraud and sport corruption confirmed in ground breaking scientific report 15 May 2014. 7 Martin Banks ‘Federbet: Match-fixing in Europe has reached ‘epidemic’ proportions’ (The Parliament, 15 June 2016) <www.theparliamentmagazine.eu/articles/news/federbet-match-fixing-europe-has-reached-epidemic-proportions> accessed 25 July 2018. 8

Mark James, Sports Law (first published 2010, Palgrava Law Masters 2017) 140.

European Commission, Expert Group ‘Match-fixing (XG MF) Report from the 4th meeting 26th January 2016.

10 James Porteous ‘How China’s massive illegal betting industry threatens efforts to make sport key part of economy’ (South China Morning Post, 7 March 2016) <www.scmp.com/sport/china/ article/1920959/china-tries-make-sport-central-part-its-economy-its-massive-illegal> accessed 25 July 2018.

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investigation a virtual non-starter, thus paving the way for such criminals to continue manipulating sporting events through their low-risk high-profit activity. At present, there exists no coordinated global approach to combat the threat of match-fixing and corruption in sports.11 This had led to each sport approaching the subject matter in different ways, with each national association and domestic courts applying different degrees of sanctions based on different factors when determining what constitutes a match-fixing offence. This problem was highlighted by the Court of Arbitration for Sports (CAS) in the case Savic v Professional Tennis Integrity Officers CAS 2011/A/2621 whereby the Court, in addressing the issue concerning the appropriate level of punishment that should be applied, held that the following factors should be taken into consideration: the sanctions imposed by the governing body must not be disproportionate, a lifetime ban for match-fixing could be a proportionate penalty in some circumstances because of the damage that such conduct could cause to the integrity and image of a sport, a long period of suspension could be imposed to act as a deterrent to others and the match-fixing offence could be determined as being the most serious corruption offence that could be committed in that particular sport.12 Despite the lack of a universal approach towards combating match-fixing, punishments for match-fixing across the globe, owing to the severity of such crimes, are substantial and significantly harsher than those that are imposed for other sporting offences such as doping. Traditionally, Courts across the world have refused to interfere with the lengthy bans imposed by national associations or sporting bodies, even if such ban could effectively lead to the end of a player’s or official’s career. This stance was evident in two landmark sporting cases. The first case was delivered by the High Court in the United Kingdom (UK) whereby it refused to exercise its supervisory jurisdiction to overturn a five-year ban imposed on steeplechase jockey 11

(n 8) 140.

Savic v Professional Tennis Integrity Officers [2012] CAS 2011/A/2621.

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Graham Bradley.13 Such reluctance was further demonstrated by the CAS in Koellerer v Association of Tennis Professionals, Women’s Tennis Association, International Tennis Federation and Grand Slam Committee, with the CAS panel basing its decision on the severity of the offence that had been carried out by the said player and the repercussions that such offence had on the integrity of the sport.14 Such unwillingness is also in part due to the respect that Courts have towards the sport autonomy enjoyed by sporting bodies and the fact that a sport disciplinary body is’[…] far better fitted to judge than the courts.’15 Owing to the gravity and serious image tarnishing that offences of match-fixing can have, the CAS held that ‘[…] it is essential […] for sporting regulators to demonstrate zero tolerance against all kinds of corruption and to impose sanctions sufficient to serve as an effective deterrent to people who otherwise might be tempted through greed or fear to consider involvement in such criminal activities […]’. 16 On the specific offence of match-fixing, such panel held that ‘[…] the very essence of sport is that competition is fair, its attraction to spectators is the unpredictability of the outcome.’17 This has resulted in the need to ensure that adequate measures, amongst them legislative ones, are in place to deal with such phenomenon and at the same time serve as a deterrent to others. At the same time, judicial bodies must also send out a bold message when handing down judgements that there is zero tolerance for offences concerning match-fixing.

2. The Fight Against Match-Fixing at a European Union Level 13

Bradley v Jockey Club [2005] ewca civ. 1056.

Koellerer v Association of Tennis Professionals, Women’s Tennis Association, International Tennis Federation and Grand Slam Committee [2011].

McInnes v Onslow-Fane [1978] 1 WLR 1520-1535.

Oriekhov v UEFA [2010] CAS 2010/A/2172, para 80.

ibid para 78.

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Prior to addressing the main topic of this journal, owing to Malta being a member of the European Union (EU), this journal will briefly delve into the EU’s actions at combating match-fixing on a European front. Match-fixing was first recognized as a major threat to sports back in 2007 via the framework of the White Paper on Sport (2007), whereby the European Commission acknowledged that corruption, along with other forms of financial crimes, were ‘affecting sport at local, national and international level.’18 Through such paper, the Commission pledged its support towards public-private partnerships and anti-corruption authorities, whose mandate would be to ‘identify vulnerabilities to corruption in the sport sector and assist in the development of effective preventive and effective strategies to counter such corruption.’19 The Lisbon Treaty (TFEU) states that ‘Union action shall be aimed at developing the European dimension in sport by, inter alia, promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports.’20 In addition, Article 165 TFEU calls for the Union and the Member States to foster cooperation with international organisations in the field of sport, in particular the Council of Europe.21 The first EU Work Plan for Sport (2011-2014) identified match-fixing as one of the priority themes for EU level cooperation in sports.22 The second EU Work Plan for Sport (2014-2017) gave priority to matchfixing, establishing a specific expert group, whose remit would be to exchange best practises regarding the fight against match-fixing, in particular on a possible Commission Recommendation on best practises in the prevention and combatting of betting related matchfixing, followed by a report of the state of play.23 18

European Commission, White Paper on Sport (White Paper, COM (2007) 391) 4.6.

ibid.

Treaty of Lisbon [2007] C 306/1.

ibid.

Resolution of the Council and of the Representatives of the Governments of the Member States, European Union Work Plan for Sport for 2011-2014 [2011] C 162/01).

(n 9) 4.

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Resolution 1602 (2008), on the need to preserve the European sport model, called for the introduction of mechanisms to reduce the risk of match-fixing, illegal sports betting or other forms of corruption. It further emphasised that these problems would require more active involvement on the part of state authorities.24 During the thirteenth Council of Europe Council of Ministers responsible for sport meeting in Macolin, Switzerland, the Convention on the Manipulation of Sports Competitions (the Macolin Convention) was opened for signature on 18th September 2014, also allowing states which are not members of the Council of Europe to become parties to the Convention.25 The Macolin Convention is a ground-breaking legal instrument which is the only rule of international law on the subject to currently exist and considered to be the boldest step towards the fight against match-fixing on a united front. One of the advantages for having such type of international Convention in this area is that it promotes a risk- and evidence-based approach and allows commonly agreed standards and principles to be set to prevent, detect and sanction the manipulation of sports competitions. More specifically, the Convention seeks to deal with prevention, law enforcement, international cooperation measures and exchange of information.26 The Convention provides common definitions, as well as unique international co-operation mechanisms such as the ‘National Platforms’, which among its aims and objectives, seeks to offer support to members in the detection and management of the manipulation of risks relating to national and international major sports events taking place within their jurisdictions. The Convention seeks to serve as a common reference point for various key actors, amongst them ministries, public and private betting stakeholders, law enforcement agencies and the judiciary, all committed to the fight against sport manipulations and corruption. Unfortunately to date such Convention is not yet in force owing to 24

The need to preserve the European Sport Model 2008, Resolution 1602 (2008).

Council of Europe Convention on the Manipulation of Sports Competition [2014].

Ibid.

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Malta’s stance to sign such Convention.27

3. An Overview of Match-Fixing in Malta Malta’s blooming iGaming industry is today worth an estimated €1.2 billion of the country’s Gross Domestic Product (GDP), roughly equating to 12% of the GDP.28 As a result, many gaming companies are now operating from Malta taking advantage of the country’s tax benefits for corporate entities. Some gaming companies offer bets on the domestic sports scene, further enhancing the risk of matchfixing in Malta. A study carried out by Matt Andrews and Peter Harrington, based on data obtained from the Union of European Football Associations (UEFA) in 2016 found that Malta’s leagues were at medium risk in terms of financial sustainability.29 One can easily reach the conclusion that there is a constant need to ensure that legislation governing offences of match-fixing continues to act as a deterrent to anybody thinking of fixing a match in Malta. With match-fixing becoming a greater threat, this challenge becomes a greater headache to the legislator.

3.1 A Legislative Overview of Match-Fixing in Malta As outlined earlier in this journal, the European legal landscape dealing with offences of match-fixing is not uniform. Whilst some Member States contain provisions dealing with match-fixing as part of their criminal codes, such as Bulgaria and Spain, Malta has enacted a special criminal law to deal with such offences via the Prevention of Corruption (Players) Act, contained in Chapter 263 of the Laws of 27

This stance will be analysed later in this journal.

Rebecca Anastasi, ‘How much is the igaming industry in Malta really worth?’ (Malta Chamber, 23rd June 2018) <www.maltachamber.org.mt/en/how-much-is-the-igaming-industry-inmalta-really-worth> accessed 2 August 2018. 29

Matt Andrews and Peter Harrington, Off Pitch: Football’s financial integrity weakness, and how to strengthen them (CID Working Paper No. 311, 2016).

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Malta which was first enacted in 1976.30 The aim of such Act was to criminalise the offence of match-fixing. Such Act has been amended along the years on three instances, the first time being via Act XIII in 198331, the second time via Act XXIV in 201132 and the last time via Legal Notice 423 of 2007.33 Such law has today been repealed by the Prevention of Corruption in Sports Act, 201834 which Act has been brought into force following the setting up of an Anti-Corruption Task Force aimed at stepping up the fight against any form of corruption in sport and a six-week public consultation period. Both Acts primarily refer to two different acts in relation to passive corruption; those done by a player or official and those carried out by an organiser.35 Since both offences are deemed to be formal crimes, a mere proposal or offer to fix a game is deemed to constitute an offence of such Act as demonstrated in the case Il-Pulizija v Emanuel Ancilleri.36 Initially, any offence that was carried out and which was determined to have breached the provisions of Article 3, was punishable by either a fine of up to circa two thousand three hundred Euros (€2,300) or a prison sentence up to two years, or both. Despite the rapid development of the threat that match-fixing imposes37, it was not until 2018 when the punishment for such offences was increased to a prison term of not than three years or to a minimum fine (multa) of five thousand Euros (€5,000) and not more than thirty thousand Euros (€30,000) or to both.38 The new Act also aggravates 30

Prevention of Corruption (Players) Act, 1976.

Central Bank of Malta (Amendment) Act, 1983.

Lotteries and Other Games Act, 2001.

Legal Notice 423 of 2007.

Prevention of Corruption in Sports Act, 2018.

ibid Article 3.

Il-Pulizija v Emanuel Ancilleri [2010] 60/2009 Court of Magistrates.

(n 30) Article 9.

(n 34) Article 4.

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the punishment when such offence is carried out by, amongst other instances, by officials or employees of national associations, members of a club or athletes.39 Both Acts also deem it an offence where any person who comes across any knowledge relating to a match-fixing offence and does not disclose such information to the Commissioner of Police.40 Whilst such obligation to do so used to allow a one month grace period for reporting41, the new Act now only allows a fourteen day window from the day when such person came across such information to disclose same.42 Failing to disclose such information will result in such person being liable to a fine (multa) of not less than two thousand five hundred Euros (€2,500) and not more than twenty five thousand (€25,000) or a prison term of not more than one year or both.43 Under the Prevention of Corruption in Sports Act, any person can be exempted from proceedings for an offence against this Act, on condition that such person ‘gives evidence according to law of all the facts known to him relating to any offence against this Act.’44 Such exemption can only be issued by the Attorney General, upon a confidential request made by the Commissioner of Police and can only be availed of if such person comes forward prior to him or her being charged.45 As determined by the case Il-Pulizija v Claude John Mattocks, such information given by the ‘accused’ must be one which is not already known to the police in order for such exemption to be considered.46 The new law now incorporates a wider jurisdiction, facilitating the task of the prosecution. Under the new provisions, such offence does 39

(n 34) Article 6.

(n 34) Article 5.

(n 30) Article 4.

(n 30) Article 5.

(n 34) Article 9.

Il-Pulizija v Claude John Mattocks [2009} 111/2009 Court of Appeal.

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not need to have fully taken place in Malta but only in part, with only a slight link to Malta needing to be present for Maltese courts to have jurisdiction. This gives the Maltese courts hearing match-fixing cases a wider jurisdiction sphere to punish such offences.47 One vital area which the Prevention of Corruption in Sports Act has failed to address concerns the offering of witness protection to those people who are testifying against other persons in match-fixing trails. Although this was a point discussed during the initial drafting of the Bill, such discussions did not ultimately lead to such protection being given by means of the new law. Thus, to date the Maltese position does not cater for the possibility of anonymous witnesses, something which at times acts as a deterrent for people to come forward and report cases of match-fixing owing to the repercussions that they fear will arise should they blow the whistle on such information or alleged involved persons. The efforts of the Council of Europe to fight the peril of matchfixing have unfortunately been blocked by the Maltese Government’s stance not to sign the Convention on the Manipulation of Sports Competitions (the Macolin Convention). Whilst the Maltese authorities in principle claim to fully support the main objectives of the Convention, such authorities have expressed concerns with regards to the definition of ‘illegal sports betting’, which they claim goes beyond the objectives and scope of the Convention.48 The Maltese authorities fear that the current proposed definition of ‘illegal sports betting’ would have an adverse effect on Malta’s betting industry, an industry which is vital towards the sustainability of the country’s economy. Under the proposed Convention definition, all operators who offer their services via a licence obtained by the Malta Gaming Authority (MGA) will be rendered illegal in other EU Member States.49 The Maltese authorities claim that under the Treaty 47

(n 34) Article 3.

Malta Independent, ‘Online gambling: Malta stands its ground against the rest of the European Union’ (Malta Independent, 18 September 2016) <www.independent.com.mt/articles/2016-09-18/local-news/Online-gaming-Malta-stands-its-ground-against-the-rest-of-theEuropean-Union-6736163926> accessed 10 August 2018. 49

(n 25) Article (3)(5)(a).

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for the European Union, licences issued by the MGA grant operators the right to offer online gambling and sports betting in all other EU jurisdictions, bar any valid national law restricting such allowance. At one point in time, the Maltese Government even took their cause in front of the Courts of Justice of the EU, requesting an opinion from such Courts on this particular matter.50 The Maltese Government was requesting the Court to clarify whether the envisaged Convention, in particular the definition of ‘illegal sports betting’, coupled with Articles 9 and 11 respectively of the said Convention, were compatible with Articles 18, 49 and 56 of the TFEU.51 Unfortunately, the Courts never had the opportunity to pronounce itself on this matter since the request was eventually withdrawn by the Maltese Government at a later stage. As a result, the matter remains at a deadlock to date, virtually brining to a halt the ratification process.52 Such veto has recently led to a motion for a resolution being tabled by Mr. Roland Rino Büchel and other members of the Parliamentary Assembly. Such motion describes the present situation as being ‘unacceptable’ and nurturing a ‘detrimental perception of European institutions incapable of providing a sufficient response to a public issue’ which allows criminal networks to take ‘advantage of absence of an international legal framework to corrupt sports competitions.’53

3.2 A Judicial Overview of Match-Fixing Cases in Malta During the infamous Bochum trial, Malta’s national football team EURO 2008 qualifier match against Norway was determined to have 50

Malta Gaming Authority, ‘Malta files a request to the Court of Justice of the European Union related to the Convention on the Manipulation of Sports Competitions’ (Malta Gaming Authority, 18 July 2014) <www.mga.org.mt/malta-files-request-court-justice-european-union-related-convention-manipulation-sports-competitions/> accessed 10 August 2018. 51

ibid.

Malta Independent, ‘Malta withdraws Request for Opinion on definition of illegal sports betting.’ (Malta Independent, 18 August 2015) <www.independent.com.mt/articles/2015-08-18/ football/Malta-withdraws-Request-for-Opinion-on-definition-of-illegal-sports-betting-6736140696> accessed 18 August 2015. 53

Roland Rino Büchel et., Time to Act: Europe’s political response to fighting the manipulation of sports competitions [2018] Doc. 14518.

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been rigged by a notorious Croatian betting syndicate.54 One of the Maltese players involved in that infamous match, Kevin Sammut, was subsequently charged by UEFA for match-fixing offences and was initially handed a lifetime ban by its Appeal Body.55 On appeal to CAS, the CAS panel found that despite the seriousness of a match-fixing offence and the involvement of Mr. Sammut, the life time ban imposed by UEFA’s Appeals Body was still deemed to be disproportionate to the proven role that Mr. Sammut played in this particular case. Thus Mr. Sammut’s ban was reduced to a ten-year ban.56 The Malta Football Association (MFA) have gone a step further than the Maltese position at law by introducing the concept of civil liability in cases of match-fixing that are heard before its competent bodies. Such concept was introduced in 2009 following a hotly contested case involving a local derby match between St. George’s FC and Vittoriosa Stars FC.57 Two players of St. George’s admitted to taking a bribe from Vittoriosa, and as a result were indefinitely suspended by the MFA. St. George’s filed a case claiming for damages due to the loss of possible future transfer fees of the two said players before the MFA and were awarded three thousand five hundred Euros (€3,500) as a means of compensation for the loss suffered. Maltese football was further rocked with the scandal that involved the national U-21 team’s Group A 2017 European Championship qualifying matches against Montenegro and Czech Republic respectively in 2016. Following the 0-1 loss that was suffered by Malta, UEFA initiated disciplinary investigations against seven Malta U-21 players for allegedly having infringed several provisions under Article

Kevin Azzopardi, ‘Norway-Malta Euro 2008 qualifier cited in ‘biggest’ match-fixing trial’ (Times of Malta, 13 May 2011 <www.timesofmalta.com/articles/view/20110513/football/Norway-Malta-Euro-2008-qualifier-cited-in-biggest-match-fixing-trial.365098> accessed 12 August 2018.

UEFA, ‘Life time for Sammut’ (Uefa.com, 3 December 2012) <www.uefa.com/insideuefa/disciplinary/news/newsid=1901482.html?redirectFromOrg=true> accessed 12 August 2018.

Kevin Sammut v UEFA [2013] CAS 2013/A/3062 180.

Il-Pulizija v Lawrence Mizzi [2008] 1279/2008, Court of Magistrates (Criminal Judicature) and Il-Pulizija v Andrea Gatt [2008] 1278/2008 - Court of Magistrates.

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12 of the UEFA Disciplinary Regulations.58 Following a thorough investigation, UEFA penalised six of the seven players, with two players receiving a lifetime ban from all football related activity for ‘allegedly having acted in a manner that is likely to exert an unlawful or undue influence on the course and/or result of a match or competition with a view to gaining an advantage for himself or a third party.’59 Whilst UEFA’s Control, Ethics and Disciplinary Body handed Kyle Cesare and Emanuel Briffa lifetime bans from all football related activities, the Court of Magistrates initially found both players not to be guilty of any match-fixing offences under Maltese legislation.60 The Court in this case acknowledged that match-fixing was weakening values in sport, such as integrity, fair competition and respect to others.61 The Court also took note how the prevention of match-fixing has become a priority for public authorities, sports bodies as well as agencies across the world whose remit it is to investigate such offences. Such decision was ultimately overturned to a two-year suspended sentence by the Court of Criminal Appeal.62 The above situation concerning the Malta U-21 national football team was a clear example on how sport disciplinary panels, amongst them UEFA and CAS, adopt a lesser burden of proof than that which must be proven in front of an ordinary domestic court. The standard of proof that is generally accepted in front of such sport disciplinary panels is a balance of probabilities in comparison to the proof beyond a reasonable doubt adopted by courts in general. In the next table, one will find a short summary concerning the various match-fixing cases that have been heard in front of the Maltese Courts over the years gone by63 : 58

MFA, ‘UEFA Statement on disciplinary outcome in Malta U-21 Case’ (MFA, 9 January 2018) <www.mfa.com.mt/en/news/news/3195/uefa-statement-on-disciplinary-outcome-in-malta-u21-case.htm> accessed 10 August 2018.

ibid.

Il-Pulizija v Kyle Cesare u Emanuel Briffa [2016] Court of Magistrates.

ibid 5.

Il-Pulizija v Omissis, Cesare Kyle, Briffa Emanuel [2016] 425/2016, Court of Criminal Appeal.

All of the cases contained in the table were based on the penalties that were provided for at that time in the Prohibition of Sports Players Act (1976).

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Court Case Name

Case Number

Il-Pulizija vs Claude John Mattocks

111/2009

Il-Pulizija vs Emanuel Ancillieri

60/2009

Il-Pulizija vs Clyde Grech

527/2009

Il-Pulizija (Angelo Gafa) vs Peter Joseph Hartshorne

205/2009

Il-Pulizija vs Andrea Gatt

1278/2008

Il-Pulizija vs Lawrence Mizzi

1279/2008

Il-Pulizija vs Kyle Cesare u Emanuel Briffa

23rd August, 2016

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Penalty: Fine (Multa) €

Penalty: Imprisonment

500

Four Years

2000

Eighteen Months

500

Four Months

500

Four Months

500

One Year

500

One Year

Not Guilty

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3.3 The Launching of the Sports Integrity Unit An innovative inclusion in the Prevention of Corruption in Sports Act concerns the introduction of a body corporate known as the Sports Integrity Unit.64 The remit of such Unit shall be to collect and analyse information and intelligence relevant to investigations concerning match-fixing, to share such data with counterparts across the world, to act as an information hub and coordinate the fight against match-fixing, to be the primary contact between the MGA, police and sports organisations, to advise the Minister concerned about latest developments concerning match-fixing and to assist the police and sports organisations in the prosecution of cases concerning match-fixing.65 The creation of such Unit came about following the agreement by both the government and opposition representatives during committee meetings when discussing the Bill. 66 The Unit is expected to begin functioning in early 2019 following the publication of a legal notice which will stipulate the composition, running and work of such Unit.67

4. Continuing the Fight Against Match-Fixing Whilst the concept of match-fixing itself will and can never be eradicated completely, the above discussion in this journal is a clear example concerning the need to establish a united front to tackle match-fixing that must be uniformly in all European member states, and possibly also non-European member states. 64

(n 34) Article 11(1).

(n 34) Article 11(2).

66 Malta Independent, ‘Sports Integrity Unit to form part of the bill on sports corruption’ (Malta Independent, 2 July 2018) <www.independent.com.mt/articles/2018-07-02/local-news/SportsIntegrity-Unit-to-form-part-of-the-bill-on-sports-corruption-6736192829> accessed 10 August 2018. 67

Rebekah Cilia, ‘We know match-fixing happens but no one has ever approached me’ – Chris Bonett’ (Malta Independent, 30 July 2018) <www.independent.com.mt/articles/2018-07-30/ local-news/We-know-match-fixing-happens-but-no-one-has-ever-approached-me-ChrisBonett-6736194159> accessed 10 August 2018.

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On a national level, it is hoped that the Prevention of Corruption in Sports Act will act as a deterrent to anybody thinking of carrying out a match-fixing offence. The Maltese courts must ensure that harsh penalties are handed out to those found guilty of such offences to continue sending out a strong message to the Maltese society and beyond Malta’s shores. At the same time, national sporting bodies, should ensure that they have the proper codes of conduct within their respective association rules as well has ideally having an integrity office within such association to detect any offences of match-fixing. A key factor to combat the threat of match-fixing is to ensure that associations, clubs, and national sporting bodies run educational campaigns throughout the year explaining the rules and risks of match-fixing offences. As an example, the MFA Integrity Office run match-fixing information tours, with the MFA integrity office (Mr. Franz Tabone) visiting each member club of the MFA and giving a presentation to that respective club’s players, coaches and officials. At the same time, the MFA run a ‘Say No to Match-fixing’ campaign to further push forward the message that match-fixing has no place in our sport. At the heart of such educational campaigns will be an explanation of the rules and regulations, the consequences of breaking such rules and how to ensure that the duty to report is carried out. Combating match-fixing is the heart of sport in the community and instilling values of honesty and integrity at an early age in a player’s or official’s uprising career is fundamental. Such educational campaigns should have as their base the three crucial R’s; recognise, resist and report. As outlined above in this journal, anybody coming forward with vital information on match-fixing rackets does not currently have any witness protection under current laws. This is certainly an area which must be investigated by the relevant authorities to ensure that the public is comfortable in coming forward and reporting match-fixing offences and at the same time ensure that such information can be prosecuted upon should the need arise. Such witness protection must be offered on an anonymous basis, so that the identity of that person who is reporting always remains confidential. Another way how this 563

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can be carried out is through the creation of a sports ombudsman, whose remit it would be to hear and investigate cases of matchfixing that are brought to his or her attention by private citizens in an anonymous manner. By being a separate entity, the sports ombudsman would safeguard the individual from being named and shamed. It is vital that all information concerning match-fixing, as well any suspicious result or activity in a sporting event are constantly monitored and investigated. It is hoped that with the eventual publication of the Legal Notice, the Integrity Unit that has been envisaged under the new Act will be given such power to carry out such vital role. At the same time, the Malta police should have a special unit which would be specialised in monitoring, detecting and prosecuting any suspicious activity that can be related to matchfixing. On a European front, Malta must come together with the rest of the European Member States to try and find a solution in ensuring that the Macolin Convention can be brought into force so that matchfixing can be fought on a united front. The ‘war’ over match-fixing can never end, however being unified can lead to positive changes and ensure that all possible means at combatting such threat are being carried out relentlessly.

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Utilities Law

Reflections on the independence of utility regulators in Malta Dr. Paul Edgar Micallef

Dr. Paul Edgar Micallef is a visiting senior lecturer in the Faculty of Laws, University of Malta. The paper reflects only his opinion and is based on the position as it was on 15th July 2018. 566

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1. Introduction

he provision of utility services such as water, electricity, gas, telephony and the internet is essential in our everyday life. Imagine for a moment if for a few hours you are deprived of access to any one of these services. The result is substantial inconvenience, at times, even disruption of your daily life routine, more so if you have diverse commercial or professional activities. Hence, the importance of ensuring that there is an uninterrupted provision of these basic utility services provided in a competitive marketplace. In such an environment regulatory supervision is provided by public authorities that are independent from both the utility service providers and from government. The focus of this paper is the independence of these regulators which is pivotal in ensuring that there is in place effective yet fair supervision of the provision of such services. Whilst there is no issue with the requirement that a regulator must act even-handedly with and independently of all utility service providers whose activities it monitors and regulates, conversely the discussion about the independence of a regulator from government raises various issues which impinge on the latitude of independence enjoyed. Regulation starts with parliament, which is responsible for approving the laws relating to utility regulation, which laws state how regulators are appointed and by whom, under what conditions they are appointed, and the powers they have in the exercise of their remit. Ultimately, therefore the responsibility lies, or should lie, with parliament.1 In most instances, those heading a regulator are appointed by government. However, a regulator to function effectively and efficiently must be able to act independently of all interests including those of government. This is especially crucial in a competitive market where government may have interests in or actually even control a particular utility service provider.2 This said, a regulator must be accountable for its conduct. In general terms those heading a regulator need to be accountable for their performance to 1

The Regulatory State: Ensuring its Accountability (House of Lords Publishing 2002) 14.

This is the case for example with the Water Services Corporation which is a Government controlled utility.

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parliament and, or to the executive, whereas with decisions taken by a regulator relating to individual regulatory issues oversight is generally provided through review by independent adjudicative fora. The challenge is to find the right balance whereby the regulator is able to act independently of all interests whilst being accountable for what it does. The Organisation for Economic Co-operation and Development (‘OECD’) lists what it describes as five ‘dimensions’ in a guidance it issued aimed at creating a culture of independence vis-à-vis such regulators. OECD listed the following five dimensions namely: role clarity, transparency and accountability, financial independence, independence of leadership and staff behaviour.3 In this paper, each of these dimensions is considered in the light of the existing measures under Maltese law vis-à-vis the two utility regulators currently in place namely the Malta Communications Authority ‘MCA’ and the Regulator for Energy and Water Services ‘REWS’.4

2. Background of utility regulation in Malta Until two decades ago, most utility services in Malta were provided by state-controlled monopolies which were also their own regulators. Until the mid-nineties, the prevalent philosophy in Malta was that utility services should be provided by state controlled monopolies to ensure that the supply of such services was accessible to all at a reasonable price. This approach, whilst laudable in some respects since it was meant to ensure that such services were available to all, had its shortcomings. The quality in particular of some of the utility services provided at times was not up to scratch, in part conditioned by the fact that precisely because the provision was exclusively provided by a monopoly there was no pressing and continuous incentive to improve and to innovate so as to compete with rival service providers 3

See OECD (2017), Creating a Culture of Independence: Practical Guidance against Undue Influence, The Governance of Regulators, OECD Publishing, Paris, at page 9 et seq. See: <http:// dx.doi.org/10.1787/9789264274198-en>. 4 Energy sector includes electricity and gas. The EU has issued separate directives relating to these services namely Directive 2009/72/EC (the Electricity Directive), and Directive 2009/73/ EC (the Gas Directive).

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simply because there was no competition. In the mid-nineties a change in the approach as to how the provision of most utilities should be dealt with in Malta took place. This in part was influenced by changing attitudes then taking place elsewhere in Europe, where many countries following on the footsteps of the measures initiated in the United Kingdom in the mid-eighties, took the first steps to liberalise most of the utility services in many instances provided by state controlled monopolies. Then, a gradual process was initiated by the Maltese Government leading in most instances to a situation whereby utility services that were previously exclusively provided by a monopoly, were subsequently to be provided by various undertakings offering choice in price and quality in a competitive market. This process, however, necessitated that the former monopolies be divested of any regulatory functions they enjoyed in relation to the provision of the utility services concerned. In the case of Malta, as happened in most other European countries, the first utility to undergo such changes was telecommunications when Parliament approved a law establishing the Office of the Telecommunications Regulator in 1997.5 As part of the changes then introduced relating to the telecommunications industry, the then telecommunications monopoly - TeleMalta Corporation - was divested of its regulatory role, which was assumed by the newly created telecommunications regulator, whilst its role as service provider of diverse telecommunications services was assumed by the then newly established Maltacom plc.6 In 2000, further changes occurred. Following substantial changes to the law in the light also of the process then taking place because of the application of Malta to join the European Union, the functions of the office of the Telecommunications Regulator were assumed by a new authority - the MCA - which authority was given a much wider regulatory role in relation to the telecommunications industry.7 The 5

Act XXXIII of 1997. This law was subsequently renamed the Electronic Communications (Regulation) Act.

Initially Maltacom plc was a government-controlled enterprise with a substantial number of private shareholders. See also https://en.wikipedia.org/wiki/GO_(Malta).

See Act XVIII of 2000 which established the Malta Communications Authority. Of particular

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MCA was composed of a board consisting of a chairman and four to six other members, supported by a chief executive officer and three directorates dealing respectively with telecommunications, data protection and electronic commerce.8 The MCA was subsequently given the additional task of regulating the postal services sector.9 The establishment of the MCA was a few weeks later followed by the establishment of the Malta Resources Authority ‘MRA’ as the regulator for the energy and water services utilities.10 The MRA was similarly structured to the MCA, with a board consisting of a chairman and four to six other members, supported by a chief executive officer and three directorates dealing respectively with the regulation of energy resources, water resources and minerals resources.11 Subsequently, in 2015, REWS was established as regulator for energy and water services, assuming the regulatory functions previously undertaken by MRA in so far as these related to energy and water services. As is the case with MRA, REWS is composed of a board consisting of chairman and four to six other members, with the day-to-day operations being conducted by a chief executive officer.12 Unlike the MRA as originally set up, the REWS regulatory structure does not envisage any specialised directorates at law, but does retain the faculty to establish significance in this law was the inclusion to the then Telecommunications (Regulation) Act of the First Schedule entitled ‘National Plan for the Reform of the Telecommunications Sector’ which set out the gradual liberalisation of the principal telecommunications services namely fixed telephony, mobile telephony, international gateway and cable television in relation also to the then main market players namely Maltacom plc, Melita Cable plc, and Vodafone Malta Limited. 8

See First Schedule of Act XVIII of 2000 entitled the Malta Communications Authority Act, 2000. A chief executive officer was never appointed and his functions have in practice always been performed by an executive chairman, whereas none of the directorates were ever set up. Furthermore, the responsibility for data protection was assumed by the Office of the Information and Data Protection Commissioner following the enactment of the Data Protection Act in 2001. Following amendments in 2014 the post of chief executive officer – later renamed ‘Director General’ - was abolished.

See Act XXVII of 2002 entitled the Post Office (Amendment) Act.

See Act XXV of 2000 entitled the Malta Resources Authority Act.

See the First Schedule of Act XXV of 2000. Unlike the MCA, in the case of the MRA a chief executive officer was appointed and the three directorates were set up, which directorates did function for some years. 12

See Act XXV of 2015 entitled the ‘Regulator for Energy and Water Services Act’, which law is listed under Chapter 545 of the Laws of Malta. Following the enactment of this law, the MRA remained in place dealing with the regulation of mineral resources.

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such ‘Directorates, Units, Divisions and Sections as appropriate’ which may then be vested with such responsibilities as REWS may decide.13

3. Role clarity One crucial aspect identified by OECD is that the relevant legislation must clearly set out the role and responsibilities of the regulator. OECD observes that in practice it is inevitable that there are overlapping or grey areas between the role of the regulator on the one hand and that of other public bodies on the other hand, and advises that it is essential for the regulator and government ‘to have regular exchanges on identifying possible problematic areas in advance, and to work with the legislative process and parliament to clarify and resolve possible deadlocks without, however opening the door to undue interventions’. Significantly, OECD states that directions from government to provide the regulator with ‘guidance’ as to its role outside the legislative process should be avoided.14 There are fairly detailed provisions in relation to MCA and REWS listing their respective roles and responsibilities at law. The functions listed in the case of both regulators range from generic functions to regulate, monitor and keep under review all regulated activities, to the authorisation of regulated activities.15 Two areas where there has been some overlap between the functions of the two regulators on the one hand and of the national competition and consumer authority on the other hand relate to the handling of competition issues and of consumer-related issues.16 In relation to competition there have been some instances where infringements occurred where it was not clear 13

See Article 6 of Chapter 545.

See OECD (2017) above at page 10 et seq.

Articles 4(1) and (3) of Chapter 418 list the purpose and various functions of the MCA, whereas Articles 4 and 5 of Chapter 545 list the roles and responsibilities of the REWS.

16 The competent national regulators that in Malta deal with competition and consumer affairs are respectively the Director General (Competition) and the Director General (Consumer Affairs) both of whom form part of the regulatory set-up of MCCAA.

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whether these necessitated ex ante intervention which falls under the remit of the sectoral regulators – namely MCA or REWS – or else expost intervention which is the exclusive responsibility of the Director General (Competition) within the Malta Competition and Consumer Affairs Authority ‘MCCAA’.17 With consumer protection issues some uncertainty has on various occasions arisen, since whereas the overall general remit to curb unfair commercial practices lies with the Director General (Consumer Affairs) within the MCCAA, both MCA and REWS under the sectoral laws that they enforce have the remit to deal with specific consumer related issues.18 Though these specific issues do at times give rise to some ambiguity as to which public authority deals with what, per se they do not appear to have any impact on the independence of either MCA or REWS. The issues that do have an impact on the independence of the two regulators relate to the provisions which delineate the relations between the regulator concerned on the one hand and Government – namely the Minister politically responsible for the sector – on the other.19 Whilst in many respects the relevant provisions relating to the two regulators are similar, there are also some noticeable differences. In the case of the MCA, the Minister responsible for communications may, in matters that appear to him to affect the public interest, give the MCA directions in writing ‘of a general character’ on the policy to be followed, whereby the MCA is then required to give effect to such directions. If such directions are not followed, then the Prime Minister is empowered to make an order to transfer to the Minister concerned in whole or in part, any of the functions of the MCA. This provision is qualified by a proviso which states that the MCA shall act independently and shall not seek to take instructions from other body – including presumably the Minister – on matters relating to ex-ante market regulation and to the resolution of disputes between 17

See Article 3 of the Competition Act, Chapter 379 of the Laws of Malta.

Hence for example the MCA can intervene in relation to incorrect billing issues. See Regulation 38 of the Electronic Communications Networks and Services (General) Regulations (S.L. 399.28 of the Laws of Malta).

Chapter 418 Article 6, and Chapter 545 Article 7.

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undertakings.20 This provision raises some concerns as to the extent of the independence of the MCA in relation to the exercise of its powers concerning other regulatory functions such as for example disputes concerning consumers and regulated undertakings. In the case of REWS the position at law is noticeably different. The Minister responsible for energy and water services may in relation to matters that appear to him to affect the public interest communicate to REWS ‘directions’ in writing of a general character provided these are not related to the regulatory powers of REWS and are not inconsistent with the provisions of the Regulator for Energy and Water Services Act (Vide Chapter 545). REWS is required to give effect to any such directions ‘in such a manner as to respect in particular the provisions of Article 5 such that the independent regulatory powers of the Regulator are in no way prejudiced’.21 Furthermore, all communications between the Minister concerned and REWS are to be conducted in such a manner so as to ensure that at no time is ‘the independence of the Regulator in the exercise of its functions be, or be perceived to be, in any way prejudiced’.22 Significantly, contrary to what the situation is in relation to MCA, there is no provision which empowers the Prime Minister to transfer to the Minister any functions of REWS to the aforesaid Minister if REWS does not give effect to any such directions. Indeed the law fails to state clearly what happens if REWS does not abide with any such directions given by the Minister. This situation has to date never occurred. My understanding is that if such directions are given, then REWS will abide accordingly without the need of Government to resort to some form of intervention to ensure that such Ministerial directions are complied with.23 In part, at least the reason for this difference in approach vis-à-vis 20

Chapter 418 Article 6.

The reference is to Article 5 of Chapter 545, specifically to its sub-articles (1) and (2), which in listing the various functions of REWS, states that these functions shall be implemented and administered ‘independently and impartially’.

See Article 7 of Chapter 545.

In the unlikely event that REWS does fail to give effect to a ministerial direction, one assumes that a valid justification will be given by Government to explain why it is resorting to such a direction, and pressure brought to bear on REWS to ensure that it acts accordingly.

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the two regulators probably is related to the requirements emanating from the European Union. In the case of the energy sector, Directives 2009/72/EC and 2009/73/EC (2009 Electricity and Gas Directives) expressly require that Member States guarantee the independence of the competent regulatory authority and that it exercises its powers ‘impartially and transparently’.24 The relevant norms under these Directives specifically emphasise that Member States in order to protect the independence of the regulatory authority – in the case of Malta, REWS – are required to ensure that the regulatory authority is able to take ‘autonomous decisions independently from any political body’.25 The evident impact of EU legislation on the norms introduced by the Maltese legislator relating to the independence of REWS is confirmed by the fact that the law establishing the MRA was enacted in 2000 – MRA then being the competent energy regulator – and that then, the law in regulating the relations between the Minister and MRA included a norm whereby the Minister was empowered to give directions in writing of a general character to MRA, with however the important difference from the present law, that if the MRA failed to comply with any such Ministerial directions, the Prime Minister was empowered to make an order transferring part of all of the functions of the MRA to the Minister.26 The then-applicable EU norms in contrast to the norms subsequently included in the 2009 Electricity and Gas Directives, did not factor any specific norm requiring Member States to guarantee that the independence of the competent energy regulator.27 Conversely in the case of the MCA, the applicable EU Directive is much less pronounced in relation to the norms requiring Member 24

See Article 35(4) of Directive 2009/72/EC and Article 39(4) of Directive 2009/73/EC. The wording used in those provisions is practically identical. 25

Directive 2009/72/EC, Article 35(5), and Directive 2009/73/EC, Article 39(5).

See Article 6 of Act XXV of 2000 entitled the ‘Malta Resources Authority Act’. This provision was still in place until the 31st July 2015 when the regulatory functions of MRA were assumed by REWS in so far as these concerned the energy and water services sectors. In the case of this Act, the Minister in question was the Minister responsible for resources which then included energy and water services (see Article 2 of Act XXV of 2000).

Article 22 of Directive 96/92/EC simply required Member States to provide for ‘appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of dominant position’ with no reference to the independence from third parties. Subsequently, in Article 23 of Directive 2003/54/EC, Member States were required to ensure that there are in place authorities that are ‘wholly independent from the interests of the electricity industry’.

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States to guarantee the independence of the competent regulator. Hence, whereas in the case of the 2009 Electricity and Gas Directives Member States are required to guarantee the independence of the regulator in relation to the exercises of all its powers, in the case of the electronic communications sector the requirement of independence onerous which Member States are required to guarantee vis-à-vis the exercise of the functions of the regulator, is limited to ex-ante market regulation and to the resolution of disputes between undertakings.28 The retention under Maltese law of provisions whereby a minister may give directions of ‘a general character’ that the regulator is then required to follow, is questionable. To date it does not result that any such directions, at least in writing, have ever been issued to either MCA or REWS.29 This notwithstanding the possible exercise of such a power by a minister can impinge on the independence of the regulator concerned, remains. This is especially of some concern in the case of the MCA, whereby as seen above the Prime Minister may actually make an order to transfer part or all of the functions of the MCA, if it fails to comply with such directions. While it is expected that a regulator exercises its regulatory functions in harmony with the general policy direction of the country as laid down by Government, a regulator should not be required to do so because if it fails to comply it may then be divested in part or all of its powers.30 Whilst presumably recourse to such a measure will be considered only in the most extreme of cases, the fact remains that at law the Prime Minister does have such a power which to some extent does impinge on the independence of the regulator. As a minimum in the case of the MCA the legislator should 28

See Article 3(3) and (3a) of Directive 2002/21/EC as amended by Directive 2009/140/EC. At the time of writing, provisions envisaged in the proposed Electronic Communications Code (‘EC Code’) should in part address this issue by requiring Member States to guarantee the independence of the regulators in relation to all their regulatory tasks. Notably draft Article 8 of the EC Code states that NRAs are to act independently and objectively including in the design of internal procedures and organisation of staff, and to operate in a transparent and accountable manner in accordance with EU law.

29 See parliamentary questions numbers 4295 and 4296 whereby the Ministers concerned respectively stated that no such directives were ever given in relation to either regulator. 30

This as discussed earlier is the case with the MCA. See Article 6(3) of Chapter 418.

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consider amending the law to introduce measures to safeguard the independence of the MCA inserting a provision, as is the case with REWS, that expressly states that all communications between the minister and the regulator are to be conducted in such a manner as to ensure that at no time is the independence of the regulator in the exercise of its functions in any way, prejudiced.31 If the legislator considers that it is imperative that a minister needs to be empowered by law to give directions of a general nature to a regulator, then the minister concerned should at least be required to state in writing his reasons based on clear criteria set out at law for giving such directions to a regulator. In turn, if a regulator decides not to follow such directions, then the regulator must be required to give its reasons for not doing so. The added safeguard of due publicity should ensure that both the Minister and the Regulator Act with the utmost prudence in such instances. Ultimately, if an issue does arise whereby a regulator refuses or fails to follow such directions, then the matter can be referred to an independent parliamentary standing committee. This committee would be vested with the power of confirming or otherwise the appropriateness of the directions given. In doing so the committee would in its deliberations, be required to ensure that in no instance is the independence of the regulator concerned compromised. Possibly such a role could be assumed by the newly created Public Appointments Standing Committee that was set up to scrutinize public appointments of those persons nominated by Government to head various public authorities including MCA and REWS.32 Such a process would at least have the benefit of being transparent and would do away with the somewhat draconian procedure currently in place where the regulator, at least in so far as the MCA is concerned, can even be divested of its powers if for whatever reason it does not abide with the directions given. If a standing committee is endowed with the task of ultimately deciding whether a regulator should or 31

See Article 7(3) of Chapter 545.

The scrutiny of such appointments is however limited to new nominees and does not extend to the renewal of appointments of existing incumbents. See Article 48B of the Public Administration Act, Cap. 497.

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should not abide with ministerial directions, the issue remains as to what measures should be taken if the committee determines that the regulator should adhere to such directions. It is suggested that if the committee does take such a decision, then it should give its reasons for requiring the regulator to comply with such directions and that these reasons be made public. In such circumstances one would expect the regulator to abide with the directions given, provided the committee reasonably motivates its ruling explaining why such directions should be adhered to. Such a process should guarantee that a parliamentary committee composed of persons representing diverse political opinions in requiring a regulator to abide with ministerial directions, will only intervene if it really convinced that the Minister concerned was justified in issuing his directions to the regulator, whilst ensuring that compliance with the directions does not undermine the independence of the regulator concerned.

4. Transparency and accountability OECD considers transparency as contributing towards fostering credibility and trust in the decisions and processes of a regulator, whereas accountability is the way to ensure checks and balances on the actions of a regulator to enable responsible behaviour. OECD states that accountability includes the reporting requirements of the regulator to the legislature on the effective exercise of its powers and responsibilities, activities and outcomes, adding that it is also strengthened through what OECD describes as ‘an adequate appeals mechanism’ of decisions taken by the regulator.33 OECD further observes that the legitimacy of a regulator ‘rests also on its engagement with the industry to exchange information, consult when taking regulatory decisions, ensure compliance and respond to complaints’, noting that public consultations with stakeholders are the most common formal means of interacting with industry.34 In practice, in the case of MCA and REWS the reporting 33

OECD (2017) above at page 12 et seq.

ibid at page 12 et seq.

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requirements onerous on them in relation to Parliament are limited, given that in most instances they are required to submit their reports to the ministers under whose remit they fall.35 Hence, both MCA and REWS are required to submit an annual report that deals with their regulatory activities during the preceding financial year containing such information relating to their proceedings and policies as may be required from time to time. These reports are submitted to their respective ministers and to the minister responsible for finance. The minister concerned is then required to lay down a copy of the report on the Table of the House of Representatives.36 Furthermore, as described earlier, the ministers concerned both in the case of MCA and of REWS, when issuing directions of a general character in relation to matters which may affect public interest to a regulator, have a fairly wide-ranging power to require the regulator to provide him with such facilities to verify any information provided.37 In this instance however, the information furnished is not necessarily shared with Parliament, but is primarily intended to enable the minister concerned to verify the information provided to him by the regulator.38 Another means whereby either MCA or REWS can be required to provide information about their work to Parliament is through parliamentary questions. These are resorted to when a member of parliament requires information either about a particular issue or case involving the regulator, or about the conduct of the regulator in the performance of its functions. Otherwise, the only other instances during the year when the operations of MCA or of REWS are scrutinized are when the annual budgets of each regulator are discussed in Parliament. This can occur either during the discussion of the overall budget to be allocated to each ministry, which 35

The MCA is answerable to the Minister responsible for communications whereas the REWS is answerable to the Minister responsible for energy and water services. See the definitions of ‘Minister’ under Article 2 of Chapter 418, and of ‘Minister’ under Article 2 of Chapter 545.

See Article 24 of Chapter 418, and Article 30 of Chapter 545. The wording of these provisions is almost identical. 37

See above pages 4 to 6 and also Article 7 of Chapter 545 and Article 6 of Chapter 418.

To date it does not result that any minister has exercised his powers to issue written directions to a regulator and to require the provision of information consequential to such directions. See also above footnote 30.

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invariably includes discussion of the budgets allocated to the various entities falling under each ministry, or else when the estimates of each entity are discussed. In either of such instances, the activities of each regulator may be discussed, and issues raised in Parliament. Otherwise, there are no specific instances when the activities of either regulator are discussed in any detail in Parliament. Given the importance of the effective regulation of the provision and maintenance of most of the utility services regulated by MCA and by REWS, there is scope for more active parliamentary scrutiny of the activities by these two regulators. A measure that can be considered in this regard is to establish a dedicated parliamentary standing committee which is responsible for the oversight of the regulatory work of both regulators. Similar committees focusing on specific areas deemed to be of national interest have already been established. A case in point is the standing committee which deals with matters relating to the environment and planning development.39 If such a committee is set up, then Parliament would be able to scrutinise on a more regular basis the issues that from time to time arise in relation to the utility services regulated by MCA and by REWS. One other aspect mentioned by OECD to ensure accountability and transparency in the conduct of the operations by a regulator, is the importance of having ‘an easy, fair, timely complaints and appeals process for regulators’ decisions, which is also independent and located outside government’.40 Regulatory decisions taken by MCA or by REWS may be contested before the Administrative Review Tribunal ‘ART’ which is presided over by a magistrate assisted by two lay experts. Significantly, the two lay experts have no vote, and decisions by ART are taken only by the magistrate.41 There is a further right of appeal from a decision of ART to the Court of Appeal in its inferior jurisdiction. In this regard, one interesting difference in 39

The Environment and Development Planning Committee. See <https://parliament.mt/13thleg/environment-and-development-planning-committee/>.

OECD (2017) above at page 13.

The Administrative Justice Act, Chapter 490, describes the lay experts appointed to assist the Tribunal in its deliberations as ’assistants’ expressly stating that whilst the Tribunal may consult its ‘assistants’, it is not bound by their opinions. See Article 10 of the Chapter 490.

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relation to appeals from decisions taken by MCA and by REWS, is that in the case of a judgment by ART further to a contestation of MCA decision an appeal can be filed on both a point of law and of fact whereas in the case of a REWS decision contested before ART, an appeal from a judgment by ART is limited to points of law.42 The procedure and norms applicable before ART in relation to contestations of regulatory decisions taken by MCA and by REWS are similar. Proceedings before ART must be conducted in public in line with the general principles listed in the Administrative Justice Act.43 ART may require the regulator concerned to make available any documents that may be relevant to the appeal.44 When determining an appeal, ART is required to take into account the merits of the appeal, and may in whole or in part confirm or annul the decision taken by the regulator concerned. In giving a decision, ART is required to give in writing its reasons therefor, and to cause the decision to be made public and communicated to the parties to the appeal.45 However, in the case of an appeal from a decision taken by REWS, ART may, in causing its decision to be made public, omit ‘for reasons of confidentiality the names of the persons involved’.46 The third aspect mentioned by OECD in relation to the accountability and transparency of a regulator, is the interaction between the regulator on the one hand and stakeholders on the other. The MCA is required to consult its stakeholders prior to the taking of a decision which has a significant impact on any of the markets it regulates, making available to the interested parties a statement of the proposed decision, giving them the opportunity to comment on the said decision within a period which it considers reasonable. The MCA is required to publish its consultation procedures and to have a single information point through which all current consultations can 42

See Article 34 of Chapter 545 and Article 38 of Chapter 418.

See Article 3(2)(g) of Chapter 490.

ibid Article 3(2)(d).

See Article 32(4) of Chapter 545 and Article 39(1) of Chapter 418.

See Article 32(3) of Chapter 545. There is no similar provision in relation to appeals from decisions taken by MCA.

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be accessed, and to publish the result of any consultations undertaken except in the case of information that it considers to be confidential. The MCA is however not required to follow such a process in relation to disputes or complaints referred to it, or when exercising its enforcement powers at law, or in cases where it considers that there is an urgent need to safeguard competition and protect the interests of users in accordance with EU law. 47 REWS, in the exercise of its functions, is required to ‘undertake effective stakeholder and regulated entity involvement and consultation’ when preparing its positions or actions.48 It is pertinent to note also that it is the general practice that public authorities in line with Government policy undertake public consultation prior to the issue of a regulatory decision.49 The requirement of transparency onerous on MCA and REWS in the context of the performance of their functions, extends to the procedures followed when regulatory measures are being taken in relation to an alleged breach of a regulatory obligation, whereby the person against whom proceedings are being contemplated, is notified of the non-compliance and given the opportunity to make submissions and rectify matters. The MCA, before deciding what sanctions to impose, is required to write to the person concerned warning him of the action that may be taken and why it is being taken, giving him the opportunity to rectify matters and, or to make his submissions.50 With REWS the procedure is significantly different. Whereas with MCA, a warning is issued and then after the lapse of a period afforded to the person concerned to make his submissions and, or rectify matters, a decision is taken by the MCA on whether to impose the fine, with REWS a judicial letter is issued actually imposing the administrative fine whilst affording the person 47

See Article 4A of Chapter 418. The requirements for the MCA to have in place a consultation and transparency mechanism is based on the requirements of Article 6 of the EU Directive 2002/21/EC.

See Article 5(1)(m) of Chapter 545.

See <https://meae.gov.mt/en/Public_Consultations/Pages/Home.aspx.> This applies also to proposed legislation unless the said legislation is limited strictly to the implementation of an EU directive.

See Article 32(1) of Chapter 418. If the proposed measure is an administrative fine, then the MCA is also required to inform the person concerned of the amount of the proposed fine.

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concerned ‘a reasonable opportunity’ to make his submissions and to propose any remedies to rectify his acts or omissions.51 If the person concerned remedies the breach within the period given by REWS and agrees to abide with any conditions imposed, then REWS is required to desist from proceeding any further. 52

5. Financial independence OECD sees appropriate funding as essential to determine the extent to which a regulator can carry out its mandate and act independently, adding that the way funding needs are determined and the extent to which a regulator can manage such funds autonomously can be more relevant than the source of funding.53 The applicable EU directives dealing with the utility sectors regulated by MCA and by REWS emphasise this point.54 In the case of the electronic communications framework Member States are required to ensure that the National Regulatory Authority ‘NRA’ has ‘adequate financial’ resources to carry out the tasks assigned to it.55 In the case of the 2009 Electricity and Gas Directives, the wording used is if anything even more pronounced since Member States are required to ensure in particular that the NRA ‘has separate annual budget allocations, with autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties’.56 51

See 13(1) of Chapter 545. REWS in issuing the judicial letter is required to give notice of the amount of the fine and why it is being imposed.

ibid Article 13(2).

OECD (2017) above at page 14 et seq.

It is pertinent to point out that, in relation to postal services and water, the applicable EU directives do not have any specific norms which impact on the independence of the regulators. In the case of Water Services Directive 2000/60/EC (the Water Framework Directive) makes no reference to the role of the competent regulatory authority and its relationship with government. In the Postal Services Sector Directive 97/67/EC as amended (the ‘Postal Services Directive’) in providing for the role of the national regulatory authority, limits itself to requiring that any such an authority is legally separate and operates independently from postal service operators (see Article 22 of the Postal Services Directive).

See Article 3(3) of Directive 2002/21/EC.

See Article 35(5)(a) of Directive 2009/72/EC. Identical wording is used in relation to the gas

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Significantly, in the case of the MCA, the law expressly states that the MCA is to be ‘afforded adequate financial and human resources to carry out its functions’ in relation to the laws which it enforces.57 In the case of REWS, there is no similar express provision stated at law. It is pertinent to note in relation to the energy sector that Directives 2009/72/EC and 2009/73/EC require that Member States ensure that the NRA has a separate annual budget allocation ‘with autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties’.58 MCA and REWS are both required to conduct their affairs in such a manner that the expenditure in relation to the performance of their functions as far as is ‘practicable’ is financed from their revenue. 59 Each regulator is required to prepare in every financial year the estimates of its income and expenditure for the following financial year. These must be submitted within such time as the Minister responsible for the sector in question by notice in writing specifies to the regulator, and are to contain such information and such comparison with previous years as the Minister responsible for finance may direct. Upon the adoption of the estimates by the regulator concerned, a copy is then forwarded to the Minister responsible for the sector in question and to the Minister for Finance.60 The Minister responsible for the sector in question, after consultation with the Minister for Finance, is then at the earliest opportunity but not later than six weeks from when he received a copy of the estimates from the regulator, to approve the estimates with or without amendment.61 Significantly, neither MCA nor REWS can incur any expenditure if this has not been approved by the Minister responsible for the sector in question in accordance sector, see Article 39(5)(a). 57

See Article 3(2) of Chapter 399.

See Article 35(5)(a) of Directive 2009/72/EC and Article 39(5)(a) of Directive 2009/73/EC. In the case of the electronic communications framework, Article 3(3) of Directive 2002/21/EC requires that Member States ensure that NRAs have adequate financial and human resources to carry out the tasks assigned to them. 59

See Article 14 of Chapter 418 and Article 21 of Chapter 545.

The relevant provisions as stated earlier are identical.

See Article 18 of Chapter 418 and Article 25 of Chapter 545.

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with the above mentioned procedure.62 The law does list a number of instances whereby exception is made, however, in these instances ministerial approval is still required. Notably, this also applies where in respect of any financial year it results that the amount approved by the Minister is not ‘sufficient’ or a need has arisen for expenditure for a purpose not provided in the estimates. In such a case the regulator concerned is required to adopt supplementary estimates and seek ministerial approval therefor.63 OECD observes that it can be easier for government to influence a regulator if it is funded through general government funds whereby government may for example reduce the resources at the disposal of the regulator.64 This point is especially relevant in the context of both MCA and REWS since their main source of funding is derived from the revenue they collect by way of licence or authorisation fees paid to them by regulated operators.65 Once the main source of funding is not dependent on Government subventions, then the capacity of Government to influence either regulator by curtailing access to financial resources is substantially reduced. This consideration is somewhat tempered by the fact that the annual budgets of either regulator must ultimately be approved by Government. One measure which could serve to increase the degree of transparency in the conduct of financial affairs of MCA and of REWS would be to facilitate detailed scrutiny before a parliamentary standing committee requiring explicit approval of the annual estimates by the said committee.66 Such a measure would serve to ensure that any valid concerns relating to the annual estimates are discussed in a transparent manner whilst ensuring that ministerial approval of the 62

See Article 19 of Chapter 418 and Article 26 of Chapter 545.

ibid.

OECD (2017) page 14 et seq.

Hence, in the context of the regulation of electronic communications services and networks, the MCA is empowered to impose upon regulated operators such fees as will cover its administrative costs in relation to its core regulatory functions. See Article 18 of Chapter 399. In the case of REWS, Article 21 of Chapter 545 states that the Regulator is to conduct its affairs in that so much of its expenditure for the performance of its functions is met, as far as is possible, from its revenue.

This is a role which can be assumed by the Public Accounts Committee.

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annual estimates is not unreasonably withheld.

6. Independence of leadership OECD describes the nomination process of those who head a regulator as ‘a crucial juncture where lack of transparency and accountability on the process and criteria leading to a nomination might create strong perceptions of undue proximity’ between the nominee and government. OECD observes that the nomination process for the leadership of a regulator should be transparent and accountable in accordance with specific formal requirements at law, and that relevant information about the appointment process should be communicated to stakeholders. OECD states that such information should factor details about the functions to be performed, the skills required for the position, those to be consulted in the selection process, the selection criteria and any particular considerations such as expertise of the regulated sectors. Equally important according to OECD are the grounds and procedure followed on the basis of which a government may dismiss a person or persons heading a regulator during term of office. 67 In case of MCA and of REWS the headship lies with a board composed of a chairman and four to six other members. In both instances the appointments to the respective boards are made by the minister responsible for the sector in question. The role of Parliament in the selection of those chosen to head the regulator is tenuous. A first step in the right direction was done following recent amendments to the Public Administration Act.68 As a result of these amendments, a parliamentary standing committee on public appointments has been set up with the task of scrutinizing appointments of the headships of certain designated public authorities including of REWS and of MCA.69 Such scrutiny is, other than with the exception of REWS, restricted to the appointments of new chairpersons or heads and does not extend 67

OECD (2017) at page 16 et seq.

See Act II of 2018 entitled the Public Administration (Amendment) Act, 2018.

See the Fifth Schedule of the Public Administration Act, Chapter 497.

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either to the renewal of appointments of current incumbents or to the other members of the board of the regulators.70 With REWS however, such scrutiny applies also to any new members of the Board.71 Any recommendations made by the standing committee to the Minister concerned are not binding on the said Minister who has the final word on the appointment of the person nominated. Furthermore, the majority of the members of the Public Appointments Committee are appointed by the party in Government.72 This procedure raises various questions. It is not clear why the scrutiny process does not apply to the renewal of appointments of existing chairpersons, and in the case of REWS to existing board members, when their term comes to a close and Government decides to renew their appointment. Equally unclear is why the scrutiny process, other than in the case of REWS, does not extend to the other board members of a regulator. Significantly, in relation to both MCA and REWS, the law fails to provide for any selection criteria or detail as to how those appointed to the boards of the respective regulators are chosen, other than to state that they are appointed by the Minister.73 Moreover, there are some notable differences between the two regulators and how their leadership operates. In part these differences appear to be the result of requirements based on transposition of the applicable EU Directives relating to the electronic communications sector insofar as MCA is concerned, and to the electricity and gas sectors in so far as REWS 70 The list in the Second Part of the Fifth Schedule to Chapter 497, apart from chairpersons also includes the Governor of the Central Bank of Malta and the Chief Executive Officer of the Medicines Authority. 71

See Articles 48A and 48B of the Public Administration Act, Chapter 497, which provide for the establishment of a Standing Committee on Public Appointments and for its functions. These provisions were introduced following the enactment of Act II of 2018 amending Chapter 497. In the case of REWS, the Fifth Schedule to Chapter 497 in lieu of the Chairman of the Board, refers to ‘the Regulator for Energy and Water Services’. It may be that this was an oversight by the legislator, given that whereas with other public entities listed in the Fifth Schedule their respective headships are stated. In the case of REWS reference is made to the Regulator’. According to Article 3(1) of Chapter 545 the ‘Regulator’ means the chairman and other members of the REWS board.

See The Public Administration Act, Cap. 497, Articles 48A and 48B.

See Article 3(2) of Chapter 418 and Article 3(2) of Chapter 545 and Article 3(2) of Chapter 418.

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is concerned.74 In the case of MCA, the term of appointment of the chairman and board members may vary between a minimum period of one year and a maximum period of three years with the possibility that such appointments may be renewed for one or more similar terms. In the case of REWS, the minimum period of an appointment is of five years, whereas the maximum period is of seven years and an appointment may only be renewed once. In addition, in the case of REWS, unlike in the case of MCA, a rotation scheme for the appointment of the board members applies on the basis of which the term of office of the board members is not the same for all members.75 One significant difference between the two regulators which is not related to any EU norms, relates to the exercise of executive functions. In the case of the MCA such functions are exercised through an executive chairman.76 The MCA Board may however delegate or devolve part or all of the executive conduct on any other officer or officers of the MCA.77 In the case of REWS the situation is different since the executive conduct of REWS, including its administration and organisation and the administrative control of its officers and employees, lies with its Chief Executive Officer.78 Furthermore, the law empowers REWS to establish ‘Directorates, Units, Divisions and Sections, as appropriate’ which may be vested which such responsibilities as the REWS may decide and which responsibilities 74 See Article 35(5) of Directive 2009/72/EC and Article 39(5) of Directive 2009/73/EC in the case respectively of the electricity and gas sectors. In the case of electronic communications Article 3 of Directive 2002/21/EC does not provide for any minimum or maximum terms of office or on what basis those heading an NRA are to be appointed. However under the proposed EU Electronic Communications Code the draft Article 7 thereof envisages a minimum term of three years stating that those appointed are to be chosen from ‘among persons of recognised standing and professional experience, on the basis of merit, skills, knowledge and experience and following an open and transparent selection procedure’. 75

See Article 3(2) of Chapter 545.

See Article 5(1) of Chapter 418, which states that the affairs and business of the MCA are the responsibility of the Board which responsibility is to be exercised through the Chairman. See also footnote 9 above. Until 2014, Chapter 418 also catered for the post of a Director General – previously designated as a chief executive officer. However no appointment was ever made to this position and in practice the MCA from its inception was always headed by an executive chairman.

See Article 5(1) and (2) of Chapter 418.

See Article 6(1) of Chapter 545.

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may be varied from time to time.79 In the case of the removal of a chairman, there are some differences between MCA and REWS. In the case of MCA, the chairman or any other member of the Board may be removed from office by the Minister on the basis of one or more of the reasons listed at law.80 If the Minister decides to remove a member, then such removal must be made public by not later than the effective date of removal from office. The Minister in doing so is required to provide the member concerned with a statement of the reason or reasons for his removal. The member then has the right to request that the statement of reasons for his removal be made public.81 In the case of REWS the chairman or a member of the Board may similarly be removed from office by the Minister for one or more of the reasons listed at law.82 The law, however, does not provide for any procedure, as is the case with MCA, whereby the member who is removed can ask as a matter of right that the reason or reasons for his dismissal be made public.

7. Staff behaviour According to OECD how regulators attract, retain and motivate 79

See Article 6(2) of Chapter 545. Article 6(7) of Chapter 545 states that the Chief Executive Officer and any heads of any directorates or units, are appointed by the Board. In the case of the Chief Executive Officer the law confusingly also states that he is appointed by the Minister. 80

See Article 3(6) of Chapter 418 which provides for an exhaustive list of the grounds on which the Minister may dismiss a member. These include infirmity of mind or body such that the member is unable to continue to perform his duties, or if behaviour or performance as a member brings in question suitability or ability of the member to continue as such, or the conviction of the member of certain criminal offences, or his failure to perform his duties for a prolonged period without any valid justification. It should be noted that the applicable EU Directives dealing with the electricity and gas sectors have no express provisions relating to the removal of those occupying headship positions with a NRA. 81

See Article 3(7) of Chapter 418. This provision reflects what is provided for in Article 3(3a) of Directive 2002/21/EC.

The reasons on the basis of which a member may be removed, are if he is found ’unable to act independently’ from any market interests, or if he is found taking instructions or directions from any other public or private entity in the exercise of the regulatory functions assigned to REWS, or if he is found guilty of misconduct under any law. See Article 3(6) of Chapter 545.

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staff is ultimately a key determinant of the ability of a regulator to act independently and take decisions that are objective and evidencebased. OECD observes that though professional staff are less exposed to pressures from government or industry lobbyists, they are expected to provide the technical and objective advice that help those heading a regulator to take unbiased decisions. OECD contends that a culture of independence can foster an environment that helps staff produce ‘the needed unbiased advice and serenely navigate the pinch points of undue influence’. 83 Both MCA and REWS are empowered to make their own staff appointments subject to such terms and conditions of employment as either regulator may determine, with however the difference that in the case of the MCA the terms and conditions of employment require the concurrence of the Minister responsible for the sector.84 The law seems to give the latitude to each regulator to determine the number of officers that may be needed from time to time for the ‘due and efficient discharge’ of their regulatory functions.85 In practice, however, the creation of new positions necessitating the engagement of new employees normally requires clearance from Government. This is generally not withheld provided a case is made explaining the need for such new employee or employees.86

8. Conclusion One aspect that needs to be reconsidered in order to enhance the independence of both MCA and REWS is the strengthening of parliamentary oversight of their conduct. As things stand, there is too much reliance on ministerial discretion. As a minimum, this should be tempered by active parliamentary intervention. Parliament should have a more prominent and decisive role in the appointment 83

OECD (2017) above at page 18 et seq.

See Article 9 of Chapter 418.

See Articles 9 and 10 of Chapter 418 and Article 16 and 17 of Chapter 545.

See Article 72 of the Financial Administration and Audit Act, Chapter 174 of the Laws of Malta, which empowers the Minister for Finance or a person acting on his behalf to issue directives relating to the recruitment of employees. This provision applies also to public authorities such as MCA and REWS.

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and removal of those persons chosen to head the regulators, and in the oversight of the operations of the regulators. A case in point is the appointment of the chairman and board members, where the role of Parliament is limited to the scrutiny of new nominations, and even then the last word lies with the Minister concerned who, even if the Public Appointments Committee disagrees with a nomination made by him, can still persist with the appointment of the person nominated.87 The matter of how a person is nominated and finally appointed should be given more careful thought. In the first instance parliamentary scrutiny should apply to all board members and not, as is the case with the MCA, only to the chairman. Such scrutiny should extend also to current members whose first term of office has expired and who have been nominated again by the Minister. The final approval of a nomination should lie with the Public Appointments Committee rather than as is the case at present, with the Minister. This would serve to reinforce the independence of the appointees from the Minister once the final approval would require the consensus of an independent parliamentary committee reflecting the diverse political spectrum. Moreover, such a measure would serve to dilute claims of political patronage by Ministers who might otherwise be tempted to choose persons who are amenable to their whims. A glaring omission in the law is that there are no criteria which a Minister is required to follow when appointing a chairman and board members. Whilst Government should retain the prerogative and responsibility of nominating suitable persons to the positions of the chairman and board members heading a regulator, such selection should be based on clear criteria stated at law which include experience and proven knowledge by the persons nominated of the utility markets regulated. The scrutiny of whether those nominated satisfy the listed criteria at law should not be at the sole discretion of the Minister, but rather should rest with the Public Appointments Committee which should have the right of veto if it considers that the candidate in question does not fit the bill. Throughout the 87

See above at page 12 et seq.

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process both the Minister in submitting his nominees and the Public Appointments Committee in accepting or otherwise the nominees, should be required to state the reasons for their stance, catering also for dissenting views in the case of the Committee. Such a process would go some way to ensure that the persons with the required qualifications and experience are chosen in a transparent manner and are not beholden to anyone for their selection. In the case of the removal of a chairman or board member, the measures currently in place vis-à-vis MCA Board members should similarly be adopted with regard to REWS. As discussed in this paper with regard to REWS, the Minister is not required by law to make any statement explaining why a person is being removed from his position. As minimum, the procedure currently in place for the MCA whereby the person removed from office, may request that a statement for the reason or reasons for his removal be given by the Minister and then made public. Such a measure would have the merit of ensuring that recourse to the removal of a member is undertaken only for strictly valid reasons in accordance with applicable legislation.88 Another issue which may impact the independence of both regulators is the power of the Minister concerned to issue ‘general directions’. As discussed in this paper, this issue in the case of MCA is rendered even more serious given the power of the Prime Minister to divest the MCA of part or all of its powers if it fails to abide with any such general directions given by the Minister.89 Such power afforded to the Prime Minister should be deleted and alternative transparent measures considered. As a minimum as is the case with REWS, the applicable provisions regulating the relationship between the Minister and MCA should be worded in such a manner so as to safeguard the autonomy of the MCA in the exercise of all of its regulatory functions.90 If it is felt necessary to retain the faculty of a Minister to issue such ‘general directions’, then in the event of nonadherence by the regulator concerned, the issue should be referred to 88

See above page 4 et seq.

ibid.

See in particular Article 6 of Chapter 418.

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a parliamentary standing committee which would have the final say in the matter. Again, as in other instances, the whole process must be characterised by motivated reasons for the issue of the ‘general directions’ by the Minister, for any refusal by the regulator concerned to adhere with such directions, and for any final ruling by the standing committee concerned. Such transparency would go some way in ensuring that all concerned act with the utmost prudence in taking their respective decisions in the knowledge that they may be taken to task if their stance is manifestly unjustified. On more general lines, as part of the measures to safeguard the independence of regulators from excessive intervention by government, the establishment of a new parliamentary standing committee empowered with the role of monitoring the workings of such regulators should be considered. The functions of such a committee can include the approval or otherwise of nominations or of removals of persons on the boards of such regulators, and the discussion and the approval of their budgets and annual reports, thereby shifting such responsibilities from the ministers concerned onto the said committee. The cardinal consideration in considering the independence of regulators especially in relation to Government, is to find the right balance between on the one hand the desired autonomy which permits a regulator to operate effectively and fairly without being subjected to undue pressure from third parties including Government, and on the other hand to ensure that the regulator is accountable to independent scrutiny as to how it conducts its affairs and how it deals with individual cases. There is no perfect formula how this can be achieved. However, there are various instances as the law currently stands which as discussed in this paper need to be addressed. A key factor in achieving this, is a shift from dependence on ministerial intervention to more scrutiny by Parliament. This in part, at least can be achieved through the involvement of a specialised parliamentary standing committee which is endowed with a fairly wide ranging remit to scrutinise the workings of such regulators. In the near future, the EU should be introducing radical changes to the regulatory 592

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frameworks relating both to the electronic communications and to the energy sectors, including the introduction of measures requiring more transparency as to how NRAs in Member States operate. The transposition of the national measures to reflect such changes can also serve as an opportunity to address the various shortcomings identified in this paper, thereby strengthening the independence of the two regulators.91

At the time of writing, the EU had in principle agreed to most of the provisions of the proposed new Electronic Communications Code, whereas the discussion by the EU on changes to the energy regulatory framework are at a fairly advanced stage. See: <https://ec.europa.eu/ digital-single-market/en/news/digital-single-market-eu-negotiators-reach-political-agreement-update-eus-telecoms-rules> and <https://ec.europa.eu/energy/en/new-governance-deliver-objectives-energy-union>.

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