LIVING LAW MAGAZINE ISSUE 1 by Living Law Magazine

FAMILY HUMAN RIGHTS BUSINESS THE EU & MORE

Anjelica Camilleri deMarco LIFE, THE LAW AND EVERYTHING IN BETWEEN

Letter from the Editors

ublishing this magazine is a dream come true. Literally. We have worked on a number of projects together, and this is surely our favourite one so far! Our vision is to bring the law to you, the woman/man in the street. The law is voluminous and can be tedious, so our aim is to bring you brief snapshots of information regarding legal issues which you may encounter in your everyday life, in an entertaining and easily accessible format. In this issue, we cover a wide variety of topics, from marital issues, to the way the social media impacts employment issues, to the law regulating common areas or condominia. We also bring you updates from the Maltese parliament and from the EU. Business, human rights, and decisions from the caseload of the Ombudsman will be other regular features in this magazine – concise information which you, our readers, can make use of in order to be aware of, and ultimately claim, your rights. This magazine is not just about the law itself, but also about the law in real life, that is, the people who work in the legal field. In this issue, we interviewed Anjelica Camilleri de Marco, who gave us an insight into her interesting life as a lawyer. On a lighter note, we cover lifestyle information and we have a look at ‘legal films’ or TV series ‘with a legal twist’. Last but not least, we hope that you enjoy ‘the Law is an Ass’ section - an area where we cover issues that show how the legal process can at times be unfair or impractical, and yes, a complete ‘ass’! We do hope that you enjoy reading this issue as much as we enjoyed putting it together. We invite you to write in with your suggestions regarding topics to cover in future issues – we welcome your views which will help us make this magazine yours as much as it is ours.

Roselyn Borg Knight & Roberta Lepre

LIVING LAW

COVER CREDITS Photographer: Luke Engerer Make up: Faith Willimanson

Contents 6

Employment Social Media, an employer’s friend or foe?

Police The Cyber-Crime Unit

Human Rights The Universal Declaration of Human Rights

Finance Malta’s banking success

Family Consensual vs Contentious Separation

Property Do you own, use or enjoy a common part?

Interview Life, the law and everything in between

EU Update It’s about Europe, it’s about you!

Parliament The Maltese Legislative Process

Business Succession Planning for family businesses

Non-Profit Victim Support Services in Malta

Film Review Shawshank Redemption

Lifestlye Life is for Living!

Vox Pop The appointment of the Judiciary

Ombudsman A Constitution to serve the people

The Law is an Ass Excusing rapists

LIVING LAW is owned and produced by Dr. Roselyn Borg Knight & Dr. Roberta Lepre Editors: Dr. Roberta Lepre & Dr. Roselyn Borg Knight Email: editors@livinglawmagazine.com Advertising Manager: Marie Claire Bugeja Email: mcbugeja@independent.com.mt | Tel: 21345888 ext 149 Design & Art Direction: Faye Paris Photography of Editors: Luke Engerer Printing: PrintIT LIVING LAW is distributed 4 times a year with The Malta Independent on Sunday, Standard Publications Ltd. No part of this magazine may be reproduced without the written consent of the publisher. This publication is for information purposes and is not intended to provide legal advice. Readers should not act, or refrain from acting, based on any information contained in this publication. Readers should not rely on information provided herein as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.

Social Media

an employer’s friend or foe?

EMPLOYMENT CASE-LAW CONFERENCE 27 NOVEMBER 2013, LE MEREDIEN, ST. JULIAN’S SPEAKERS: DR. ANDREW BORG CARDONA, DR. ROSELYN BORG KNIGHT, DR. MATTHEW BRINCAT For more information please visit www.employmentlawconference.eu

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ocial media plays a big part in the marketing side of many businesses. Through social networking sites – like Facebook and Twitter - businesses can communicate to large audiences almost instantaneously. This gives them the ability to promote their services, products or new promotions conveniently. On top of this, businesses can speak more directly to their customers. This type of communication could range from answering enquiries, solving problems to investigating complaints. By doing so, businesses improve their customer service, which in turn, will keep their existing customers happy whilst also attracting new customers. Despite all the positives, social media in business does not come without its negatives. There is the potential that social media can have an extremely detrimental effect on a business. When considering the accessibility of social media, it can be very difficult for a business to limit what is said since employees can easily publish anything online. They could make inaccurate statements or leak confidential information that could get them into legal trouble. They may also express their negativity towards certain people, the products/

EMPLOYMENT

Should a business prevent its employees from using social media?

Set standards for good housekeeping – for example, for the use and storage of emails.

Businesses may try to limit the risk by restricting their employees’ access to social media sites at the workplace. However this is not necessarily very effective because employees may be able to access the sites on their personal devices at work, or just wait until they get home and access the sites there. On the other hand, some businesses that allow their employees to access the sites without restrictions, might simply be ignoring the risk.

How will a social media policy be useful?

There is no fixed rule. Every business needs to assess its own culture and the way it would like to deal with this issue, but here are some high-level recommendations:

SET UP A SOCIAL MEDIA POLICY THAT OUTLINES THE REGULATIONS THAT EMPLOYEES SHOULD FOLLOW WITH REGARDS TO SOCIAL MEDIA.

services of their own business or of their rivals. These instances can cause damage to the image of the business and drive customers away. Plus, it can cost companies substantial amounts of money to resolve.

Set up a social media policy that outlines the regulations that employees should follow with regards to social media.

Communicate clearly with employees to ensure that they understand these regulations. The employees would need to know that their actions on social media sites could carry heavy consequences (including dismissal) if they do not follow the regulations.

It will protect the company against liability for the actions of its employees; It will give employees clear guidelines on what they can and cannot say about the company; It will help employees draw a line between their private life and professional lives; It will ensure that there is compliance with the law on discrimination, data protection and protecting the well being of employees. It will be clear about sensitive issues like monitoring and explain the disciplinary rules applicable. Social media can either be an employer’s friend or foe! Social networking sites have become incredibly popular in recent times, so it would be unfortunate for a business to miss out on communicating to such a massive audience. Therefore the ideal situation would be for businesses to put a huge deal of consideration in preventing the problems, in order to unlock the potential of social media and drive forward.

DR. ROSELYN BORG KNIGHT

LIVING LAW

POLICE

The Cyber-Crime Unit The CyberCrime unit is a specialized section within the Police Force that offers technical assistance to other investigators within the Police Department. The technical assistance provided consists in tracing internet based communications, such as email or facebook messages; as well as the seizure and analysis of computer systems, such as those involved in a criminal investigation when technical expertise is required by other investigating officers. The CyberCrime unit also implements awareness raising activities regarding internet safety in schools and with youth organisations.

he CyberCrime unit is a specialized section within the Police Force that offers technical assistance to other investigators within the Police Department. The technical assistance provided consists in tracing internet based communications, such as email or facebook messages; as well as the seizure and analysis of computer systems, such as those involved in a criminal investigation when technical expertise is required by other investigating officers. The CyberCrime unit also implements awareness raising activities regarding internet safety in schools and with youth organisations. The CyberCrime unit deals with two types of criminal cases – the so called ‘traditional’ types such as fraud, harassment and threats; and ‘new’ crimes ranging from computer misuse to hacking. It also analyses data in other investigations, such as analyzing internet communications in homicide cases. With just under 600 cases investigated yearly, the work of the CyberCrime Unit is only set to increase. The unit currently consists of six officers – three sergeants, and two constables under the direction of Inspector Timothy Zammit.

LIVING LAW

The work of the CyberCrime Unit is very specific and can be described as ‘looking for the needle in the haystack’. However, the work is done passionately, diligently and with dedication, and the Unit is known for its professionalism and effectiveness. Some of the cases encountered by the CyberCrime Unit entail a strong human element, particularly cases involving abuse of vulnerable persons, such as children. Inspector Zammit recounts how cybercrime can have a profound and lasting effect on the victim. He states that when a person is hacked, for instance, the feeling is that of someone whose property has been invaded. Thus, whilst the work of the CyberCrime Unit is highly technical, the investigating officers always keep the human element in mind. Such officers come into contact with the most intimate possessions of the individuals concerned, and therefore in their work, discretion is vital. Inspector Zammit suggests that from a preventive point of view, it is highly important that a person does not trust blindly when navigating online. One must be wary of unsolicited emails and double check before taking any action based on that communication. Here he is referring to the numerous fraud emails that are currently

circulating. He also points out how the work of the CyberCrime unit is highly dependent on the collaboration of the public and the information that the Unit is provided with, and therefore it is important that such emails or abusive material is reported to the Unit in order to enable it to carry out its work.

Inspector Zammit also recommends checking the settings on social networking sites and contacting the administrators in case there is any content that one is unhappy with. The CyberCrime Unit is open 7 days a week, and its offices are manned from early morning until late in the evening – any person who suffers any abusive behavior online or who becomes aware of abusive material circulating online is encouraged to contact the CyberCrime Unit on (+356) 2294 2231 or via e-mail on computer.crime@gov.mt

HUMAN RIGHTS

The Universal Declaration of

Human Rights

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he common and popular definition of Human rights is often that of inalienable fundamental rights to which everyone is entitled simply because they’re human. It is universally understood that such rights are applicable everywhere and are not subjective to particular individuals, in other words they apply similarly to everyone belonging to the human race. Human rights consist of natural rights as well as legal rights and, they reside within the remits of local, regional, national, and international law. Unfortunately, even though Human Rights are all encompassing and apply to each and every one of us, many people are not very familiar with what they entail. When asked to name their rights, the majority will only be able to list a couple with freedom of speech and belief topping the list. Of course the most popular and known human rights are very important, but it is also essential for people to understand the full and, very broad scope of human rights because these rights mean choice and opportunity. Among others, human rights include the freedom to work, to adopt a career, to select a partner of one’s choice, as well as to raise children. They include the right to travel widely and the right to work gainfully without harassment, abuse and threat of arbitrary dismissal. They even include the right to leisure. The first and basic impetus that motivated the formation of the human rights movement came in the aftermath of the Second World War, namely in the aftermath of the horrible happenings of The

Holocaust. The 1948 adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly was essentially a strong reaction to the horrid events of the past years. When the Second World War finally came to an end, the international community vowed never to allow such atrocities to occur again. So, the world leaders of the time decided to support the UN Charter by providing a road map that guarantees the rights of every individual irrespective of origin, race or creed. They proposed a document that would later become the Universal Declaration of Human Rights (UDHR). This document was discussed during the first session of the General Assembly in 1946 and was then passed on to the Economic and Social Council as part of the process for consideration as an international bill of rights. During its first session, early in 1947, the commission authorized its members to formulate what it termed “a preliminary draft International Bill of Human Rights”. Later, a formal drafting committee, which consisted of members of the Commission from eight States, was formed. Members for this committee were selected carefully in order to ensure good geographical representation. The Commission on Human Rights was made up of 18 members from various political, cultural and, religious backgrounds. Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, chaired the UDHR drafting committee and has always been recognized as the main driving force of the committee. Other notable members were René Cassin of France who wrote the first draft of the Declaration, the Committee Rapporteur, Charles Malik of Lebanon, as well as Vice-Chairman Peng Chung Chang of China,

and John Humphrey of Canada, Director of the UN’s Human Rights Division, who prepared the Declaration’s blueprint. The commission met for the first time in 1947 and they proposed the first draft of the Declaration in September 1948 with over 50 Member States participating in the final drafting. By its resolution 217 A (III) of 10 December 1948, the General Assembly meeting in Paris adopted the Universal Declaration of Human Rights with eight nations abstaining from the vote but none dissenting. Hernán Santa Cruz of Chile, who was also a member of the drafting sub-Committee, wrote: “I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing — which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality. In the Great Hall… there was an atmosphere of genuine solidarity and brotherhood among men and women from all latitudes, the like of which I have not seen again in any international setting.”

HUMAN RIGHTS CONSIST OF NATURAL RIGHTS AS WELL AS LEGAL RIGHTS

It took less than two years for the text of the UDHR to be finalized in its entirety. This was during a time when the world was divided into Eastern and Western blocks and when finding common ground on what should constitute the essence of the document was a task of immense proportions.

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FINANCE

Malta’s Banking Success

ntil recently, certain jurisdictions were at the forefront of the banking world, however, today the global attitude as to how banks are regarded has very much changed. Amidst financial turmoil, recession and economic uncertainty across the globe, Malta has shown great strength and resilience and Malta’s banking system has been classified as one of the soundest in the world and one of the most solvent in the European Union. So what makes Malta so special? It is not one factor which has differentiated Malta from other jurisdictions, but a combination of factors and principles that have allowed Malta to continue to perform strongly and with resilience. Malta’s banking system is generally based on the United Kingdom model and operates within the ambit of a number of

of suspicious and illegal activity. The cautious and diligent attitude adopted by the banking sector over the years has also contributed towards Malta’s economic development while the Regulator (being the Malta Financial Services Authority (MFSA)) has been of significant importance, providing high regulatory standards and at the same time embracing the fact that the financial services industry operates in an ever evolving financial environment. As a result, banks have remained well capitalised, have high liquidity ratios and have sound, well diversified portfolios. The MFSA also acknowledged EU Directives 97/9 and 94/19 which basically introduced deposit guarantee schemes into our financial system, thus promoting confidence not only in licensed institutions but in the financial system as a whole. The two schemes available are: the Investor Compensation Scheme which is a rescue fund available to customers of failed investment firms and the Depositor Compensation Scheme which is a rescue fund available to customers of failed banks. These schemes offer additional security within a legal and regulatory framework that is already sound and robust and were not implemented for any particular situation that has arisen in practice.

‘IT TAKES LESS TIME TO DO THINGS RIGHT THAN TO EXPLAIN WHY YOU DID IT WRONG’ HENRY WADSWORTH LONGFELLOW

legislative Acts as well as a number of directives, regulations and rules. The banking sector also holds in high regard, local and EU anti-money laundering legislation and regulation as well as the FATF Recommendations, thus distancing the sector’s integrity from all forms

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Malta presently offers a diverse choice of banks serving mainly the local market but also geared to cater for international clients,

encouraging healthy competition to attract new customers and business. Customer relations, professionalism, efficiency, transparency and integrity are important values to us and together with high regulatory standards have distinguished Malta as a reputable international banking sector. At a time when many other European jurisdictions are being faced with uncertainty and new challenges, Malta continues to experience growth and success. The future will most certainly see regulatory reforms in the banking sector, however Malta is confident that with its good judgement, policies and traditions it will be able to conform and adapt, thus furthering its success and growth in the market.

DR. RACHAEL CASSAR TORREGGIANI is the Legal & Compliance Officer of FCM Bank Limited. FCM Bank Limited is authorised and regulated by the Malta Financial Services Authority.

FAMILY

Consensual vs Contentious

Separation

According to Maltese Law, separation can only be demanded upon one of the following 4 grounds, namely:adultery (cheating) excesses, threats, or grievous injury on the part of one spouse against the other spouse (cruel behaviour towards the other spouse) desertion (abandonment) or irretrievable breakdown of marriage (incompatibility of character)

he law obliges the spouses to first go through mediation in order to determine whether there is a possibility of reconciliation. If, as happens in the majority of cases, there is no such possibility, the parties will, together with the mediator and often also with their respective lawyers, attempt to agree on a contract of separation. Such a contract would regulate the main aspects concerning their marriage, particularly, their matrimonial home, maintenance, child custody and access, and any other financial assets. This is referred to as a consensual separation (bonarja). If a bonarja is not achieved, then the Judge will authorise the parties to proceed to litigation, whereby the judge will decide on the matters before him/her based, on proof presented â&#x20AC;&#x201C; this is referred to as a contentious separation.

Consensual Separation (Bonarja)

Court Separation

In any case of separation, it is always in the interest of both parties to reach a consensual agreement, which is less costly in time, money and emotional turmoil. In consensual separations, the Court does not take an active role in the proceedings except to oversee that neither party is prejudiced by the agreement. Thus the agreement and time frame (which may be very important) in a consensual separation are more within your power to shape and move forward.

There are situations when the parties cannot even be in the same room, let alone be civil enough to reach an amicable agreement. One party may be so determined to prove that the other party was responsible for the marriage breakdown (so that the offending party loses certain rights), that it will never consent to a consensual separation. Parties sometimes also withhold consent and fail to come to a consensual agreement merely as a way to spite the other spouse, who may have initiated separation proceedings on fair grounds. In such cases, the Court decides on how the matrimonial home and financial assets are apportioned between the couple. The Court also decides matters of maintenance, care, custody and access to the children of the couple.

As stated above, the agreement governing the consensual separation covers the matrimonial home, all other financial and immovable assets, maintenance, and care and custody of the children. Although the agreement is achieved by mutual consent under the guidance of the mediator, it is still of the utmost importance for parties to seek legal advice prior to expressing their agreement to the clauses in a consensual separation. In summary, the procedure concerning a bonarja involves filing a note in the Family Court requesting for mediation proceedings to be started, appointing a mediator, negotiating the agreement, and obtaining the Courtâ&#x20AC;&#x2122;s approval to that agreement. Once the Court grants its approval, the final step would be for the parties to have the agreement read and signed by a Notary who will register and publish it. Upon publication, the agreement becomes binding on the parties.

Agreeing is always better than arguing and in an ideal world a consensual separation is the best way forward. However there are instances when, perhaps, for more than one reason, there is no agreement and couples have no option but to revert to the courts. What is important to keep in mind is that life indeed does and should go on for both parties and compromising may be the solution to avoiding costly and lengthy court battles.

DR. ROBERTA LEPRE

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PROPERTY

Do you own, use or enjoy a common part? If yes, read these

FAQ’s! 1

Is there a law which regulates the ownership, use of or enjoyment of a common part?

Should also inquire the average annual contribution – although the contribution fluctuates as expenses are not fixed year-in year-out – one should have an idea of the average annual contribution.

Ask for the conditions as imposed by prior contracts, e.g. whether pets are allowed.

Yes. The title of the law is the Comdominium Act.

What should prospective owners of a property sharing common parts with other units watch out for before deciding to buy the property?

They should inquire as to whether an administrator has been registered and whether the seller has paid all his/her contributions due related to the upkeep of the common parts of the block. It is suggested that the prospective buyer requests a copy of, at least the following: the last approved accounts and a copy of the minutes of meetings, particularly meetings that discussed future projects.

Can a new owner choose not to use some of the common parts (such as a lift), and consequently refuse to pay for their running/ maintenance costs?

No, unless it is specifically stated in the contract of acquisition. Every owner has rights, thus s/he has obligations towards the other owners.

LIVING LAW

PROPERTY

Is it important to insure the common parts of an apartment block? What would such an insurance really cover? What can really go wrong in a flight of steps, or a landing?

It is extremely important and highly recommended to insure common parts, ideally there should be an insurance cover of the whole block, not just the common parts. It is suggested that property insurance, machinery breakdown insurance and public liability insurance is bought. The property insurance will cover losses/ damages to the property itself; machinery breakdown insurance covers damages to any machinery breakdown, such as a lift, and electric gates.

Purchasing an insurance policy is one of the tasks of the administrator. However the purchase of an insurance policy, although ideal, it is not obligatory under the law (the Condominium Act) to purchase such a policy.

What should owners consider before nominating themselves to be elected administrators? What work is involved? Should administrators receive remuneration for administering the common parts?

The administrator is the person responsible for the common parts with the authorities. For example, s/he would be liable for judicial action if the lift is not up to the required standards as per health and safety regulations. The administrator has a number of tasks and this

18 LIVING LAW

includes keeping record of the accounts, take the minutes of the meetings and circulate them, keep a condominium register, act in accordance with the decisions of the general meetings, convene at least one general meeting annually.

EVERY OWNER HAS RIGHTS, THUS HE OR SHE HAS OBLIGATIONS TOWARDS THE OTHER OWNERS.

It is up to the owners to decide, during a general meeting, as to whether the administrator is to be remunerated for his/her work/service or not. The law does not indicate what the appropriate pay is, however it allows the administrator to be remunerated.

turns up for the meeting, the decisions taken will still bind all the owners.

At least one general meeting is to be held per calendar year. The meeting will discuss and decide upon the minutes of the previous general meeting, the accounts of the preceding year, the approval of the budget and the contribution of the coming year and the administrator.

The Condominium Act refers to levels of majority depending on the decision that needs to be taken â&#x20AC;&#x201C; some decisions are based on unanimous votes (such as changes in the structure of the condominium), others on a two-thirds majority (such as approval of rules of administration), whilst a simple majority suffices in most situations (such as the appointment of the administrator, approval of the budget and contribution).

How and when are decisions related to the administration of the common parts of condominia taken? What majority is required when taking decisions during general meetings?

Decisions binding the owners of the units forming part of the condominia, are to be taken during general meetings, for which meetings all owners would be invited to attend by the administrator. The quorum for the meetings is two-thirds of the number of units forming part of the condominium. Should the quorum required by law not be reached during the first date of the meeting, the meeting will be convened for a second date, and the quorum would be the number of people present within 30 minutes from the time of the commencement of meeting. Thus, if only one person

What happens when one of the owners refuses to pay his contribution towards the expenses related to the upkeep of the common parts?

If authorised by the owners, the administrator may institute judicial action against the defaulting owner.

DR. ALEXIA JOY FARRUGIA ZRINZO B.A. LL.D Dip.Trib.Eccl.Melit. Condominuim Services Ltd.

INTERVIEW

Life, the law & everything in between SHE IS SMART, SASSY AND SOPHISTICATED. LIVING LAW MEETS ANJELICA CAMILLERI DE MARCO TO TALK ABOUT LIFE, THE LAW, AND EVERYTHING IN BETWEEN.

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ard working but balanced. This is how Anjelica wishes to be described in a few words. Hailing from one of Malta’s leading legal families, Anjelica Camilleri de Marco’s life and career have revolved around the law. Diligently pursuing a career in corporate, competition and international tax law, having specialised in these fields at the University of Cambridge and having also recently qualified as a solicitor in England and Wales, she states that her work gives her great satisfaction. However she is adamant not to let her work burn her out or define her as a person. Anjelica believes that besides work, family is also of paramount importance in her life and values her time with her family, and her new husband. The trick, she insists, is to find the right balance and to do everything with passion. Achieving a balance in life is a value which was instilled in her at a very young age by her parents who, in spite of their careers and busy schedules, were always hands on and there for her when she needed them. Now more than ever Anjelica admires how her mother managed to strike such a careful yet difficult balance between her career as a lawyer and her role as a mother. She marvels how her mother managed, without fail, to wake up early in the morning before going to work to ensure that Anjelica went to school with a hot meal and be back in time to supervise her homework when she got back from school.

ANJELICA DOES NOT RECALL EVER WANTING TO DO ANYTHING BESIDES BEING A LAWYER

To do things keenly is another firm value imparted by her late grandfather, President Emeritus Dr. Guido de Marco, who in her

words did everything passionately and with immense joie de vivre. She recalls that he would always remind her to do everything seriously but not to take everything seriously! Having returned to Malta from Saudi Arabia at the age of five, Anjelica soon discovered how her extended family would play a very important part in her life. Some of her fondest childhood memories revolve around the happy days spent playing in the garden at her grandparents’ house. “In Saudi, it was just me, my parents and my baby brother,” she fondly recalls. “On moving to Malta however, I had to adjust to becoming part of a large extended family with whom I have formed close bonds which last until today. It was no longer just me, but me and my male cousins playing boys’ games!” Growing up with boys has certainly taught her to stand up for herself, a trait that she would later find useful in the corporate world! Anjelica does not recall ever wanting to do anything besides being a lawyer. “I wanted to be a lawyer the minute I understood what being a lawyer was all about.” She recalls how, growing up, every Sunday family lunch would develop into an animated legal debate, which intrigued her immensely as a child. Luckily today she has no regrets, perhaps since, despite carrying on the family legacy in the legal world, she has managed to carve a niche for herself, and by herself. “I can honestly state that I was never brainwashed,” she says with her confident smile. “In fact, my family probably wished to have a doctor in the house!” she jokes. She goes on to explain that while her family has always been a source of inspiration for her, she was always encouraged by her parents to be independent and open-minded. One would however assume that being part of such a successful family has put pressure on her during her formation. “More than anything, I feel proud of my family and the only

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INTERVIEW

pressure I feel is that of doing my work with the same passion and sense of value.” It is indeed in the development of her fundamental values that her family’s influence may have played a pivotal role. Whilst she recalls her grandfather more as a politician rather than a successful lawyer, he nurtured in her a heightened sense of awareness of a person’s fundamental rights and the importance of justice. Having been selected by the Faculty of Laws, in conjunction with the Senate of the University of Malta to deliver the graduation speech on behalf of her peers, Anjelica had stated that ‘the legal profession is not just a job but also a way to ensure a fair society.’ After having practiced law for a few years now, she believes that, on the whole, this statement reflects today’s reality in Malta. She stresses the importance for members of the legal profession to conduct themselves appropriately in order not to fuel the negative perceptions sometimes attributed to lawyers and the profession as a whole. She goes on to talk about the importance of abiding by the Code of Ethics and the enactment of the pending Lawyers’ Act, which will further regulate and strengthen the legal profession and provide assurance to the man in the street. Anjelica also looks positively upon the development of the legal profession in Malta and believes that now is an exciting time to be a lawyer due to the vast array of opportunities available. She points out the increasing need for specialisations and the emerging distinction between lawyers who practice in court and others who don’t, similar to the distinction between solicitors and barristers in England and Wales. In this regard, she points out the need for the long awaited Lawyers’ Act to address this distinction.

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Recently also admitted to the roll of solicitors by the Solicitors Regulatory Authority, Anjelica looks towards the future with a sense of curiosity and an open mind. She reiterates her love of the law and its academic rigour, particularly because it is so vast and, as she puts it, ‘can take you to different places’. “I wouldn’t mind doing something different in the future, perhaps merging the law with business.” However, when asked if she would be interested in politics, she states that, despite having given it a shot in sixth form, during which time she was president of KSJC and at the University of Cambridge, where she served as vice president of the Cambridge Graduate Law Society, she is happy to leave it in the hands of other members of her family! Nevertheless, she is highly opinionated when it comes to certain issues, particularly the

struggle for women to make it in the working world, especially the corporate world. Anjelica goes on to explain that despite her initial cynism about the introduction of quotas in board rooms due to the fact that women might be suspected as ‘quota’ candidates instead of as qualified participants, in view of gender biases that women often face she now sees how this is a measure which is indeed necessary if we are to have true equal access to opportunities. “Men tend to sometimes feel uncomfortable around women,” she states matter of factly. “They feel that they can’t crack their usual male jokes – they almost cannot relate – so maybe imposing quotas in board rooms would help to speerhead a change. If women can’t get in with the affinity that men have with each other, at least they can get there with the help of the law.”

The conversation then steers towards the need for women to back each other more, and in this regard, refers to the strong sense of comraderie amongst the female members of her extended family, with her grandmother, the strongest member of her family, at the helm. On the other side of a woman with a keen determination to make it in the corporate world, there is also a woman with a strong maternal instinct. She speaks very fondly of her sister who is seventeen years her junior and who she is extremely close to. “I used to enjoy taking care of my little sister as though she were my own,” she states. “When I got married a year ago, it was very upsetting leaving her behind.” Anjelica goes on to share how, despite this, the past year has been

Anjelica and Michael just married

Anjelica with her brother and cousins, with whom she grew up

her happiest ever and she looks forward to starting a family of her own. She is relishing the extra time she gets to spend with her husband, and how just being together, as opposed to meeting up for dates, makes her feel happy and fulfilled. Besides her obvious love towards her family and her work, Anjelica loves travelling and going to the gym. She also loves being on her own, especially during her daily workout. At the end of the day, it all boils down to finding the right balance. Oh, and doing everything with passion! The de Marco women in Piazza Grande, Arezzo

Anjelica with her father in Saudi Arabia Giving the graduation speech at the University of Malta

Graduation day at the University of Cambridge

IF WOMEN CAN’T GET IN WITH THE AFFINITY THAT MEN HAVE WITH EACH OTHER, AT LEAST THEY CAN GET THERE WITH THE HELP OF THE LAW.

Anjelica with her grandfather

LIVING LAW

EU UPDATE

It’s about Europe, it’s about you! FRANCINE CARUANA, MEUSAC

Join the debate

“THE BETTER THE PEOPLE OF EUROPE ARE AWARE AND UNDERSTAND THEIR RIGHTS AS EU CITIZENS, THE MORE THEY WILL BE ABLE TO MAKE FULL USE OF THESE RIGHTS IN THEIR PERSONAL LIVES” Article 2(1) of Decision No 1093/2012/EU of the European Parliament and of the Council on the European Year of Citizens 2013

his is the vision for the European Year of Citizens 2013, a year also marked by the 20th anniversary of the establishment of the concept of EU citizenship in 1993 with the coming into force of the Treaty of Maastricht. The rights associated with Union Citizenship were further strengthened by the Treaty of Amsterdam in 1999 and the Treaty of Lisbon in 2009. Indeed, the latter introduced the European Citizens’ Initiative and also enshrined the Union’s Charter of Fundamental Rights into EU primary law. Under the EU treaties, EU citizenship automatically confers on any national of an EU Member State a number of rights in addition to the rights they exercise as nationals of their country of origin. Being a citizen of the EU implies that individuals across the EU have the freedom to live or work in any other EU Member State apart from their own, and to vote and stand as candidates for European or local elections. Furthermore, EU citizens who travel to non-

EU countries have the right to receive diplomatic or consular protection from any EU Member State. Citizens are further granted a wide range of rights, rights pertaining to the free movement of goods and services, consumer protection and public health, equal opportunities and equal treatment, access to employment and to social protection as well as other rights aimed at ensuring that they enjoy the same rights as nationals of the Member State in which they reside. EU citizens can equally petition the European Parliament and submit complaints to the European Ombudsman. Furthermore, on April 1, 2012, EU citizens acquired an entirely new civil right. The European Citizens’ Initiative, introduced by the Treaty of Lisbon, gives the right to a minimum of one million citizens to request the European Commission to initiate new legislation on an issue where the EU has the power to make laws. The signatories must be of voting age and represent at least seven of the 27 EU Member States.

The European Year of Citizens 2013 will provide an opportunity for people across Europe to: learn more about the rights and opportunities arising from EU citizenship; stimulate debate about the obstacles that prevent people from fully exercising rights and generate specific proposals for addressing them; and encourage people to participate in civic forums on EU policies and European Parliament elections, the next elections due to take place in May 2014. MEUSAC, as the official National Contact Point in Malta for the European Year of Citizens 2013, has been playing a leading role throughout this year. The objectives of the year complement MEUSAC’s triple role of disseminating information on the EU, empowering civil society in the EU decision making process and assisting local councils and non-governmental organisations (NGOs) in benefiting from the EU funding programmes. The European Year of Citizens 2013 with the motto, ‘It’s about Europe. It’s about you. Join the debate’, has been a year of dialogue between all levels of government, civil society and business all over Europe to discuss and debate EU rights and build a vision of what the EU should be like in 2020.

LIVING LAW

PARLIAMENT

The Maltese Legislative Process

he First Reading is the first phase of the legislative process, which entails the presentation of a motion, which consists only of the title of the Bill, to the Clerk of the House of Representatives. Once the motion is included in the parliamentary agenda after the lapse of three days, the Members of Parliament vote without any form of debate. This first vote indicates the Members’ willingness and disposition to discuss and debate the said bill. Following publication in the Government Gazette, the Bill is then included in the agenda of the House for its Second Reading. This is the stage when the Members of Parliament discuss the subject matter of the Bill, its implications, objects and reasons. This discussion ensues as soon as the message of the President of Malta recommending the Bill to the consideration of the House is passed on to the Speaker, who in turn, invites the Minister to commence with the introduction of the Bill. The debate comes to a close with the winding up of the Minister moving the Bill to Parliament leading on to a vote being taken by the Members of Parliament. The subsequent process is perhaps the most intricate as during the Committee Stage, each and every provision of the Bill is scrutinized and voted upon. At this stage, both Government and Opposition Members may put forward a number of amendments to each clause throughout the Committee’s discussion. Once this thorough procedure is

28 LIVING LAW

The aim of this feature is to provide our readers with an overview of the latest discussions and debates taking place in the House of Representatives. It has been decided that the first column will focus on the legislative process within the Maltese Parliament to provide good background for subsequent columns about particular Bills, which are presented for the consideration of the House of Representatives. Therefore this article will shed some much needed light on the legislative process and parliamentary procedures, which every legislative Act must go through before it is published in the Government Gazette and brought into force.

completed, the Chairperson of the Committee informs the House about the Committee’s progress and the Bill is then included in the Parliamentary Agenda for its Third and final Reading. During this final stage, the Members of the House of Representatives vote to determine whether the Bill has been

carried through its Third Reading. Finally, the Bill is submitted to the President of Malta for his assent and published in the Government Gazette to acquire its force of law as a Parliamentary Act.

DR. ROBERTA AVELLINO Photo by Martin Attard

Privacy & Career Moves

echnology and easy access to information is making society more open to sharing persona l deta i ls. Today, work histories are shared on Linkedin, social lives on Facebook and wish-lists on shopping sites. Some apps resident on smart phones ask for access to all contacts and calendar events, and individuals give consent without much notice. In the wrong hands, such personal information can be misused to create havoc in people’s lives. Over the past 15 years the recruitment sector has developed in a positive way - creating specialists that can make sharp recruitment decisions based on sound research, knowledge and solid market expertise. A recruitment specialist within our setup would conduct more than 500 structured interviews a year and undergo significant personal and professional development. An area of increasing concern is how lax candidates are with their personal data, ultimately exerting no control over where it ends up. For a start, candidates who submit their information to recruitment agencies have rights enshrined in Maltese Law. For instance, recruitment agencies cannot ask for pictures. Regretfully the registration process of some agencies includes requests to upload pictures, date of birth, gender, nationality and other such information which should not be relevant to the recruitment process.

30 LIVING LAW

Having completed the registration process, candidates should clearly establish with their recruitment agency of choice, what happens with their data and where that information ultimately ends up. Increasingly, some agencies send CVs or candidate profiles to clients without the specific consent of the candidate. Even with blanked out profiles it is easy to determine who is who with limited information. Such practices should send shivers down any prospective job applicants’ spine. Candidate information freely roaming with the clients of an agency could have some profound implications on a person’s career. A CV sent by an agency to a client without the consent indicates specific intent by the candidate. This could potentially expose career move intentions to their employers without candidates knowing. What if the company receiving the CV was part of the same group of companies of your employer? Or an employee/ shareholder were a close relative of your employer?

We strongly believe that all candidates should have a clear overview of the position so as to enable them to assess the risks attached to the role and the client company. Without doubt no employee wants to be quizzed on any possible intentions to leave the company by a current employer. Apart from the immediate consequences, candidates need to be more concerned about long-term outcomes. There have been cases where candidates have been passed over for promotion because they were perceived as less loyal than others, or were given lower bonuses for the same reason. I strongly believe that for any role, at any level of responsibility, the candidates should be aware of how their information is processed. Career moves shape people’s lives and those of their close family, making the potential impact of lax privacy exceptionally significant.

JOSEF SAID Managing Director, Konnekt Search & Selection

BUSINESS

Succession planning for family businesses

Do you have a plan?

ssues relating to retirement, illness, incapacity or death are perhaps the issues, which most family business owners find very difficult to address. Whereas, many recognize the importance of planning the succession of their business, and also give thought to establishing a succession plan, when it comes to implementation, many other issues seem to take precedence over such planning and more often than not, it is put off for an undefined future time. Without proper planning, businesses do not flourish. The same principle applies to succession. The importance of early planning cannot be overstated since it is key for the successful continuation of the business following the retirement or demise of the owner. Business owners need to evaluate their present management and ownership structure and together with their financial and legal advisors, devise a plan which will ensure seamless continuity and a smooth transition when they are no longer involved in the business, either out of choice or otherwise.

IT IS ESSENTIAL THAT THE BUSINESS OWNER... DOES NOT LET EMOTIONS BE THE GUIDE WHEN DEVISING THE SUCCESSION PLAN

32 LIVING LAW

Many family owned businesses are based on a paternalistic structure, with the business owner responsible for most of the decisions relating to the business. Most of the family businesses do not make a distinction between the owners of the business and those who manage the business, insofar as in most cases they are one and the same persons. Whilst such may be successful when the owners and the managers are the founders of the business, the situation takes a different turn when the family, children, siblings or even grandchildren, come into play. The distinction between the ownership and the management of the business is one of the core issues which business owners are to consider when structuring their succession plan. It is imperative that the two roles are given their due importance when planning succession. The two roles are diverse in nature and attach to them different rights and obligations. To ensure that the succession plan is successful and yields the desired fruits, it is essential that the business owner keeps such an important distinction in mind and does not let emotions be the guide when devising the succession plan.

BUSINESS

The business owner considers the business as an asset which is built and developed by the family over generations. The intention of a founder or owner of a business is to ensure that his or her family can continue bearing the fruits of the business which he or she has founded. For such to occur however, it is fundamental that the management is trusted in the hands of competent persons who are appointed to manage the business not for their degree of relations with the owner, but more so for their skill and competence. In many situations this is not always the case and many family businesses in Malta result in having members of the family employed as senior executives without necessarily having the required skill and competence to fulfill the duties inherent to such an important role. It is imperative that the owner understands that trusting the management of the business in the hands of competent persons, who may or may not be part of the family, does not necessarily lead to excluding the family members who are not given a managerial role. The family will remain the owner of the business and accordingly, will have all rights appertaining to the owner and will continue to bear the fruits resulting

from the business. The degree of control that such family members have on the management of the business will, however, depend on the way the owner decides to structure the business. The law gives the owner the required flexibility, saving for the minimum safeguards being met, to structure the business in such way as he or she considers proper to ensure continuity and a smooth transition. The introduction of an independent member to act as mediator between the family members managing the business has increased in the past years. The role of the independent mediator may be fundamental for some businesses as it would avoid any possible dead-lock situations from ensuing and furthermore, might prove to be indispensable in situations of personal issues taking the lead when taking business decisions. An independent third party may also bring to the business new ideas and serve as to bring an outside perspective on strategy and control. The introduction of a specific management team composed of carefully selected members who are appointed to manage the

day-to-day affairs of the business and who are accountable and who would have to respond to the board of directors, composed of family and non-family members, have also increased in the past years. The selected members of the management team may be assigned specific roles within the business and each member would be focused and specialized in their field of competence. Whilst the board of directors still retains control over the management and oversees the management carried out by the management team, the day-to-day operations would be delegated to the management team who would be responsible and accountable to the board of directors. This would allow the board of directors to dedicate their time and energy to focus on other important issues and opportunities. Some businesses might also consider appropriate to establish a family council which would be given certain rights in the decision making process. The introduction of a family council would allow the members of the family to voice out their concerns and ideas and indeed, might also entitle such members to vote on reserved matters. For most family and closely held businesses, succession is the toughest and most critical challenge they face. It is not merely an event, but it is a process, which needs to be planned in advance in order for it to succeed. As long as the minimum safeguards are satisfied, the law allows much flexibility to devise a structure that best suits the particular needs of every business and family and the introduction of a Family Business Act will serve to further address these issues and to facilitate the continued existence of family businesses.

DR. MARIA PALOMA MICALLEF Associate at Deguara Farrugia AdvocatesÂ

LIVING LAW

NON-PROFIT

‘victim’ is defined as: (i) a natural person who has suffered harm, including physical, mental or emotional harm, or economic loss which was directly caused by a criminal offence; and (ii) family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death’. Victim Support Malta provides emotional support to victims of crime, by assisting them to experience ‘catharsis’ and start their journey towards recovery. It provides victims with the opportunity to talk about their negative experience. Very often this needs to be done at length in order for the victims to start their journey towards recovery. Additionally, victims also require practical help with other matters, such as practical information about how to apply for social benefits, assistance in filling up forms, liaising with, or referral to other entities, accompaniment during court proceedings, help with finding employment, sending out applications, assistance with finding housing or temporary shelter, liaison with other professionals and other such matters. In order to determine their course of action, victims often also require legal information and advice regarding their case. Prior to representation parte civile, victims require information about the relevant legal process, liaison with the police officers investigating their case, advice about the possibility of cost reimbursement and/or compensation, and advice about legal measures which can be availed of in order to ensure their protection. Victim Support Malta provides these services and also deals with other ancillary matters, however, this is not enough. Victims need a legal framework where, at minimum, their needs are placed at

34 LIVING LAW

Victim Support Services in Malta par with those of the offenders. The transposition of the 2012 Directive on Victims’ Rights ( Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/ JHA,) will be a step in this direction. The Directive stresses the obligation of Member States to ensure that victims ‘are recognised and treated in a respectful, sensitive, tailored, professional and non-discriminatory manner, in all contacts with victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings.’ This obligation, places, inter alia, an obligation on Member States to frame the provision of victim support services offered by independent, non-profit organisations, formally within the context of criminal proceedings. Chapter 2 of the 2012 Directive provides for the victims’ right to be provided with adequate information and support relevant to their case. Victim Support Services need to be provided with the competent authority from the very beginning. In order to fully comply with the

wording and spirit of this Directive, it is also important that Victim Support Services are framed within the context of criminal proceedings. Thus, besides strengthening and extending any formal agreements with the police, efforts need to be made to ensure the integration of Victim Support Services within the courts, and also following the expiration of any criminal proceedings. The Victims’ Rights Directive also refers to specialist support services that should be established in relation to specific types of crime, such as domestic violence, child abuse and sexual abuse. The directive furthermore makes reference to the duties of member states to provide victims with legal aid. This is indeed a welcome provision because Victim Support Malta believes that for most victims, legal costs are, prohibitive, and therefore result in victims being re-victimised by having to incur costs to enforce their rights. It is therefore being recommended that legal aid is provided to all victims of crime, without means testing. Additionally, in order to ensure that professionals providing services via legal aid are fully versed with victims’ rights, a Victim Support Malta can be engaged to provide training.

VICTIM SUPPORT MALTA WAS SET UP WITH THE AIM OF PROVIDING SUPPORT SERVICES TO VICTIMS OF CRIME.

The Directive also entails other noteworthy provisions, such as the need to provide training to practitioners who come in contact with victims. Victim Support Malta, has, in the past, upon an invitation from the Commissioner of Police, provided training on victims’ rights and domestic violence as part of the in-service training to police officers. Training has also been provided to staff of Agenzija Appogg. Further training however is required in order to reach out to a larger number of professionals, and also to address the new aspects brought forth by this Directive. Victim Support Malta can therefore be engaged to provide ongoing training to professionals. Through its affiliation with Victim Support Europe, Victim Support Malta has built capacity in relation to knowledge pertaining to victims’ rights, and is therefore the only organisation with specific expertise in this field. Another interesting provision is that which puts an onus on member states to raise awareness about victims’ rights. This is something that Victim Support Malta has been doing by raising awareness and informing the public through the media and engaging with other organisations. However, efforts in this regard need to be strengthened in order to raise awareness on a national level as required by the Directive. Synergies between Victim Support Malta and relevant state entities need to be strengthened in order to fulfil this requirement efficiently and effectively. It is clear that the new Directive on Victims’ Rights is a major step forward. Victims will now be entitled to new forms of support and protection, which will ultimately bring them a step closer towards real justice.

www.victimsupportmalta.org

FILM REVIEW

FILMS WITH A LEGAL TWIST

10 10

Shawshank Redemption

have never seen such a fine example of cinematic master-class since I watched ‘The Shawshank Redemption.’ Despite its age, it remains a classic, but what makes it such a great film? Fronted by the stellar performances of Morgan Freeman and Tim Robbins, a poignant story is told with a glorious message.

If there are any films you would like to recommend or even write a review about a film please send us an email: editors@livinglawmagazine.com

The Shawshank Redemption explores and demonstrates the power of friendship, hopes and dreams. The engrossing storyline pulls you into a man’s struggle towards redemption. Along the way, you connect to every character’s own situation and imagine yourself in their position. There are scenes to shock, sadden and inspire you throughout the journey.

‘hope is a good thing, maybe the best of things. And no good thing ever dies’

Frank Darabont directed the film so sensitively, with actors that made a brilliantly provoking script to be absolutely golden. They managed to capture the realism of prison life right down to its gritty and oppressive atmosphere. Overall, I cannot fault any aspect, and I believe this to be an excellent film that I highly recommend.

JOE SQUIRE

LIVING LAW

Life is for living!

DOMINIC BORG MSc Sport and Exercise Science, CSCS

iggest obstacle to weight loss. Why are we still struggling?

Most of us have tried losing weight or actively try to maintain a healthy weight. No doubt that in general we are more knowledgeable than ever before, but the question is whether this knowledge is enough for successful weight loss? Is it a lack of willpower? Why are we failing? Although we are continuously urged to lose weight to avoid several diseases such as diabetes, high blood pressure and heart disease, our nation - more than others - still seems to be struggling. Sadly enough, according to statistics on overweight and obesity in the EU, the highest proportions of obese men were Maltese (24.7%), whilst women ranked second (21.1%) following United Kingdom (23.9%). Another study published in the European Journal of Sport Science by Mr Andrew Decelis shows that amongst Maltese 11-12 year olds, 27% are overweight and 18% are obese. This alarming data might suggest that we need to look elsewhere for other factors we should pay attention to. We have certainly attributed our struggles to a lack of willpower in maintaining a diet and exercise regime,

38 LIVING LAW

LIFESTLYE

How should we solve the setbacks and obstacles mentioned above? In this survey, the need to address underlying emotional issues related to weight gain was present in 92% of the respondents. Cognitive therapy, problem-solving and mindfulness were identified in more than 70% as effective weight loss strategies. Also, according to the survey results, motivational strategies, goal setting and keeping behavioural records were all important in helping weight loss and weight management.

unhealthy school lunches, media advertising, fast food, soda and sugary drinks, pre-packaged food and many other reasons. If traditional approaches are failing, could other insights into weight loss psychology be of any benefit? A new survey of psychologists suggests that people who want to be successful in losing weight should pay attention to the role their emotions play in weight management. 1,300 licensed psychologists took part in a survey conducted by the Consumer Reports National Research Centre and were questioned about how they dealt with clients dealing with weight and weight loss challenges. The survey suggests that the most relevant factors to shedding weight are the following: • Understanding and managing the behaviours and emotions related to weight management – 44% • Emotional eating – 43% • Maintain a regular exercise schedule – 43% • Making proper food choices in general – 28% These barriers to weights loss represent the importance of gaining self-control over behaviours and emotions relating to eating.

Cognitive therapy: used to help clients identify negative thoughts and emotions that have led them to unhealthy behaviours. Problem solving: used to help clients find an alternative solution to setbacks and obstacles. Mindfulness: strategies to allow thoughts and emotions to come and go without judging them and instead concentrate on being aware of the moment. From recent studies and surveys, it has become clear that if we neglect to identify emotional triggers and use effective strategies to tackle these issues we are more likely to keep on struggling with our weight and health. The Consumer Reports National Research Centre is a research arm of Consumer Reports’ National Testing and Research Center in Yonkers, N.Y. and is comprised of highly trained social scientists, using state-of-the art techniques to survey more than 1 million consumers each year for their feedback on a broad range of experiences with products, services, and health care.

VOX POP

The people’s verdict on...

The appointment of the Judiciary With the recent controversy surrounding the method of appointment of Judges and Magistrates, following a number of cases of real or suspected corrupt practices, LIVING LAW asked a few individuals whether, in their opinion, the appointment of judges should be the result of simple nomination by the executive, as is the current practice, or whether a more participative system, such as one leading to appointment following competitive examinations, should be introduced. Here are their replies :

Vox Pop 1 Daniela Bonanno LAW STUDENT

believe that the selective process for judges and magistrates should be a hybrid of the two. The ultimate decision ought to be taken by the executive, as this ensures a system of checks and balances between the different organs of the state. On the other hand, judges should be amenable to be ready to undertake specific training, incorporating a multidisciplinary approach, aiding them in their role as judge or magistrate. Just to mention one example, training ought to address vulnerable witnesses and how to question a child witness constructively; being a parent does not innately give a judge these skills. One has to keep in mind that nowadays the different areas of the law have become very sub-specialised in knowledge and procedure, and developments in the legal field are ongoing. Such a hybrid system ensures that a judge is nominated on objective criteria through the qualifications achieved following the training given and on subjective criteria through the decision of the executive.

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Vox Pop 2 Vox Pop 3 Simon Decesare

Prof. Andrew Willis

ENTREPRENEUR

VISITING PROFESSOR AT THE DEPARTMENT OF CRIMINOLOGY, UNIVERSITY OF MALTA

W I

think there are two points here. One is the question of undue influence and the other is finding the best candidates to administer arguably the most important role in the judiciary. I believe that for the judiciary to work impartially and effectively it should be completely independent from executive and the government. Therefore having the government deciding who the judges are gives cause for concern that the judiciary may not be independent of the government. However, it would take a particularly forward looking government to approve a system in which influence, although I am sure it is denied that there is any, and the ability to appoint, would be removed from the authority of the executive. The other point is that those appointed by the executive may not necessarily be the most effective candidates for the post, something which weakens the institutions and would only be solved in the case that people were appointed according to meritocracy. As in all professional spheres there is no better yardstick than meritocracy and competence.

ithin the rule of law judicial appointments are a crucial part of a mature liberal democracy. The public needs to have a high level of confidence in those entrusted with such an important role. Where judicial appointments are made in secret the process fails four interrelated tests. First, they are open to the charge that they reflect political or personal patronage rather than judicial competence. Secondly, this

Vox Pop 4 David Camilleri CONSULTANT

rrespective of the process employed, appointed Judges must be above any risk or suspicion in terms of their competence, integrity, consistency, non-corruptibility and fairness. To address this, our Constitution places one criterion â&#x20AC;&#x201C; a minimum sum total of 12 years experience as a lawyer / magistrate. Is a great lawyer necessarily a great Judge? I doubt it. Judges need different qualities to lawyers.

remains unfalisifiable because of the lack of transparency. Thirdly, there is a consequential lack of accountability. Finally, this means the public do not have the required reassurance about judicial quality and even-handedness. And justice without trust and confidence is no justice at all. Judicial appointments need to be made on the basis of merit and judicial training and this pushes unambiguously in the direction of open competition against clearly defined person and role specifications.

An exam is no solution either as it will certainly fail in assessing oneâ&#x20AC;&#x2122;s personal traits of fairness, integrity, non-corruptibility. The current direct appointment by the Executive is not above any real or perceived risk of patronage or error in judgement (excuse the pun). Effective parliamentary scrutiny only comes to play in cases for possible impeachment that becomes susceptible to political partisan argumentation between the Executive and the opposition. My proposal? Change the Constitution to (1) Introduce a career structure for Judges; (2) Assess performance throughout; (3) Appoint by 2/3 Parliamentary majority giving strict timeline obligations (so as not to compromise the justice system); and (4) Impeach by 2/3 Parliamentary majority.

LIVING LAW

OMBUDSMAN

A Constitution to serve

here is general agreement in the country that the time is ripe to re-examine the Constitution. Any revision of the Constitution should not be entrusted solely to the Parliament - it should also be ratified by the popular vote because the Constitution is there to serve the people and not to serve the State. The exercise of power under the Maltese Constitution The Constitution is the legal framework of the State and lays down how power is acquired, exercised and lost. It establishes the structure and functioning of the organs of State and defines and guarantees rights and freedoms. The present Constitution of Malta is based on the Westminster model where executive authority is exercised in the name of the Head of State (ie the President), and where the Prime Minister and his Executive, though representing the people through an election, receive their mandate to govern from the Head of State who, with some notable exceptions, is bound to act on the advice of the Prime Minister. In order to restrain the exercise of power by the Executive, the Constitution makes provision for the introduction of authorities such as the Office of the Auditor General, the Public Service Commission, the Broadcasting Authority, the Employment Commission and the Office of the

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Parliamentary Ombudsman.

A radical change

With the exception of the Office of the Ombudsman, these authorities were set up to ensure a smooth and correct public administration or to avoid political discrimination and create a level playing field in employment and public broadcasting - they were not set up with the specific purpose of empowering the people and were not built in the Constitution as effective instruments to ensure that citizens have an efficient, clean, transparent and accountable public administration.

This radical change in favour of a transparent and accountable administration to ensure that the public is treated fairly and without improper discrimination was the result not only of the countryâ&#x20AC;&#x2122;s exposure to modern concepts of good governance but also of membership of the European Union. The basic values of transparency, accountability and fair decisionmaking that constitute the essence of good governance are incorporated in the European Code of Good Administrative Behaviour that translates in a tangible manner the right to good administration that is acknowledged in the Charter of Fundamental Rights of the European Union which was incorporated by the Union in the Treaty of Lisbon on 1 December 2009.

The Ombudsman Act Perhaps the only major law that was specifically intended to empower citizens to seek redress against maladministration was the Ombudsman Act. By means of this legislation the House of Representatives resolved that individuals should be served by a workable system of administrative justice that would put right issues that were badly managed and provide appropriate redress to individuals who bear the brunt of delay or inefficiency and the distress that often results from maladministration. The Act was perhaps the first major tangible sign of a shift towards the promotion of a transparent administration that would be fully accountable in the various levels of national management and prepared to open itself to an external audit of its actions by the Ombudsman.

Résumé of speech given by Chief Justice Emeritus Joseph Said Pullicino, Parliamentary Ombudsman, at the third President’s Forum on 25 April 2013

the people – the right to good public administration The State’s duty of care During the debate in the House of Representatives on the Bill to entrench the office of Ombudsman in the Constitution of Malta in 2006, the Office proposed that the right of every individual to good administration should be recognized as a basic right in the Constitution while appointing the Ombudsman as a constitutional guardian of this right. Clearly the recognition of the people’s right to good public

administration is a necessary corollary of the principle that the Constitution should be an instrument to serve the people to ensure good governance.

THE ACT WAS PERHAPS THE FIRST MAJOR TANGIBLE SIGN OF A SHIFT TOWARDS THE PROMOTION OF A TRANSPARENT ADMINISTRATION Proposals for new provisions in the Constitution of Malta The Office of the Ombudsman puts forward the following proposals for consideration for inclusion in the Constitution of Malta: • the Auditor General and the Ombudsman should enjoy the same constitutional protection in the sense that constitutional provisions regarding the Auditor General should be extended to the Ombudsman. The streamlining of this constitutional recognition of Officers of Parliament is necessary to emphasize the principle that they exercise their functions in full freedom and should be accountable only to Parliament;

• since the Auditor General and the Ombudsman hold office for five years from the date of their appointment and are eligible for reappointment for a further period of five years, it is considered appropriate to opt for a one and longer period of, say, nine years; • both the Auditor General and the Ombudsman should be given the means not only to communicate to the House of Representatives the results of their investigations on instances that they perceive to constitute maladministration but also to ensure that proper procedures are in place to have them debated by an appropriate Committee of the House and in this way be subjected to the scrutiny of public opinion; • there should be careful examination whether the Employment Commission in the form as set out in the Constitution needs to be retained. Similarly the functions and powers of the Public Service Commission should be reviewed to establish whether they need to be adapted to meet the exigencies of an evolving public service; • the constitutional functions of the Parliamentary Ombudsman should be extended so that the Office would be recognized as a National Human Rights Institution (NHRI).

LIVING LAW

LIVING LAW PROMO

The designer who is in love with Malta Christina Hembo, the multi-awarded Jewellery & Watch designer who is in love with our islands, is visiting Malta again. After her brand launch at 202 Jewellery in 2010, dancing on TV’s Hadd Ghalik and sponsoring the Cycling Tour Ta’ Malta, it’s time for a holiday visit with her family. To coincide with the visit, 202 Jewellery is giving away a free Christina Jewellery bracelet worth €79 when purchasing two charms worth €150 or over. This promotion is available up to 31 October and will be valid at all 202 Jewellery shops & hotel outlets. For more info call 2720 2202, e-mail info@202Jewellery.com or visit the 202 Jewellery Facebook fanpage which has a community of over 25,500.

Fruvia Fruvia is the latest exciting and innovative addition to the Farsons portfolio. A sparkling, all-natural juice drink, it is naturally sweetened and contains no artificial ingredients or flavourings. Fruvia is one of the first beverages of its kind in Malta that is sweetened using a mix of Stevia, the revolutionary natural sweetener from the stevia leaf, and sugar. With only 70 calories per 330ml can, it comes in three refreshing flavours: Luscious Apple, Tangy Red Orange and Zesty Lemon.

PROTECT iT The PROTECT iT line of advanced-technology socks are designed to deliver the ultimate solution in protection and comfort for the at-risk foot. For people with diabetes, arthritis and other medical conditions which lead to sensitive or sore-prone feet, PROTECT iT Therapeutic Line socks are the ultimate in protection, comfort and health.

Available in major stores and supermarkets, cafes and snack bars. Visit www.fruvia.com.mt for more information.

Available from all Scholl Foothealth Centres in Malta and Abela’s Health & Beauty Centre in Gozo. Trade enquires: Pharma-Cos Ltd. Tel: 2144 1870

Shave the way to Happy Skin! After four years of extensive research and development, involving thousands of consumers, Wilkinson Sword has unveiled a fresh approach to razors designed specifically for women. The Wilkinson Sword HYDRO Silk™ razor is the first to combine advanced technology that gives an incredibly close shave with an all-in-one, five-bladed razor that also replenishes moisture and delivers silky smooth skin that is happier than ever.

Dermastir Milk Cleanser Dermastir Milk Cleanser Cleanses all skin types, even the most sensitive ones, respecting the skin’s natural balance and preventing irritation. The skin is deeply cleansed, regains softness and is ready for subsequent treatments. Dermastir Milk Cleanser’s unique vacuum packaging preserves ingredients from external contamination and ensures the quality of its active ingredients remain unchanged from the first application to the last drop. Tel: 2131 2151 www.altacare.com

The Wilkinson Sword range of products is available from pharmacies, supermarkets and other leading retail outlets. Trade enquiries: Miller Distributors Ltd. Tel: 2166448

LIVING LAW

RESTAURANT LISTINGS

The Palace, Sliema

The Tabloid; a place where a delicious buffet mix of Mediterranean cuisine is served. With it being the main restaurant of the hotel; buffet breakfast and dinner are served every day. The Tabloid offers a refreshing combination of contemporary interiors, with traditional quality service. The restaurant offers a choice of innovative dishes ranging from a selection of antipasti, followed by a choice of carvery, a variety of main courses and finishes off your meal with a wide assortment of mouth watering desserts. The restaurant organises several seasonal theme nights too throughout the week; there is something for everyone’s taste buds, such as Fish Night, Caribbean Night and so on. The Tabloid is also well known for the best Sunday buffet lunch in town. This year this includes a free flow of wine, beer, soft drinks and water for €31.50 per adult and €14 per child (7-12yrs). The ideal venue where several families come to meet, celebrate an occasion and enjoy the great food that its talented kitchen team has prepared. Complimentary parking is also provided, subject to availability.

Le Méridien St Julians Hotel & Spa The new Sunday Lunch at Le Méridien St Julians Hotel & Spa offers indeed a new and more comprehensive perspective to your dining experience. Whatever your preferences or dietary requirements, the creative kitchen brigade at Le Méridien extends its menu to be able to better cater for everyone. With glutenfree options such as antipasti, soups, pasta, mains and desserts, it is a relief to finally see a catering establishment that goes further than just offering one fall-back dish to its gluten-intolerant clients. As a bonus, there are also vegetarian and sugar-free alternatives on display. Call 2311 0000 or email infolmsj@lemeridien.com for further information.

It is – really – a Sunday Lunch the way YOU like it.

For reservations kindly call: 2133 3444 or email on frontdesk.palace@axhotelsmalta.com Opening Hours: Breakfast: 07.00 – 10.30 Lunch: 13.00 – 15.00 (winter: Sundays Only) Dinner: 19.00 – 22.00

Sako Sushi Sako Sushi situated in Spinola Bay St. Julians is the only sushi restaurant with a sushi train on the island. Sako offers top quality sushi prepared from the daily delivered fresh fish by our experienced chefs. Diners can chose from the plates rotating on the train around the tables or order their sushi directly to the chefs. Take out and delivery is also an option. Sako Sushi, Spinola Bay , St Julians Tel no 21382000 Summer opening times 12.00 till 23.00 everyday

Sako Sushi Only Fresh Fish.

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Royal Sundays at the Grand Hotel Excelsior

“Sunday is the golden clasp that binds together the volume of the week.” The Royal Sundays at the Grand Hotel Excelsior are a never-ending exploration of the world’s finest cuisines, offering authentic, ethnic dishes including Indian Tandoori, the Levantine Arab Shawarma, Japanese sushi prepared with the freshest sea produce, and the traditional carvery. You will indulge in a culinary journey to taste and explore – from Asian, Indian and Turkish to French, Lebanese and Spanish. Excelsior’s team of chefs uses only the freshest ingredients guaranteeing the finest in 5-star cuisine. There’s live entertainment for the grown-ups, and animation to keep the young ones occupied while you relax. And those wonderful Harbour views from Spice Island complete the perfect setting for a relaxing Sunday afternoon. Leading pianist and singer Paul Giordimaina will be entertaining you with live music. Call the Grand Hotel Excelsior on 21250520 to make your booking for Sunday Lunch or email food.beverage@excelsior.com.mt

THE LAW IS AN ASS

Excusing Rapists

n April 2013, three young men (17-year olds) were found guilty of raping a 14 year old girl. What was the penalty? A probation order. In its judgment, the court implied that this was an act of foolishness and bravado (“bravata u bluha.”) The lenient judgment seems to have been pronounced on the basis of the considerations that the offenders were minors at the time of the commission of the act and that they had a clean criminal record. Did the court consider that the victim was a minor too? Did the court consider the effects that this horrible act had on the victim and her relatives? Did the court consider how this decision would impact other victims and their faith in the justice system? Did the court consider the effects that its decision would have on other actual or potential offenders? Understandably, this judgment sparked outrage amongst various non-governmental organisations. It also enraged various members of the general public - particularly parents - with various comments posted on social networking sites, such as, “What if she was your own daughter?” A petition has been created, calling on our Prime Minister to address the inadequate legal framework concerning sexual offences in Malta. If like us, you believe that this judgment did not deliver any justice, please sign the petition! https://www.change.org/en-GB/petitions/ prime-minister-joseph-muscat-governmentof-malta-address-the-antiquated-legalsystem-on-sexual-crime-in-malta

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WHOSOEVER SHALL, BY VIOLENCE, HAVE CARNAL KNOWLEDGE OF A PERSON OF EITHER SEX, SHALL, ON CONVICTION, BE LIABLE TO IMPRISONMENT FOR A TERM FROM THREE TO NINE YEARS, WITH OR WITHOUT SOLITARY CONFINEMENT. CRIMINAL CODE – ARTICLE 198