Dodger’s gone, Dodge City remains

Babylon had Hammurabi. Judaism had Moses. Classical Athens had Solon. We have Edward Zammit Lewis, the justice minister who wants an interesting law (Bill 198) passed before Easter.

Essentially, the Bill aims to enable the government to impose severe fines while avoiding the courts. A technical matter? No. The law would transform two fundamental relationships: that between government and citizens, and that between government and the Constitution. In both cases, the balance of power will decisively swing towards the government.

But first, the immediate narrow issue.

The Constitutional Court has been clear: beyond a certain limit, any stiff financial penalty may only be imposed by the courts, which need to be involved every stage of the way, right from the beginning. The current law refers to criminal cases but the Constitutional Court has been explicit: the principle applies also to administrative penalties and measures. The person facing severe fines and measures needs all the protections of the courts.

Recourse to the courts is what we’re seeing now by those firms who have received severe fines (one case is of €1.18 million) from the Malta Financial Services Authority or the Financial Intelligence Analysis Unit. Given the case law, these firms will probably win.

The government also wants to set up an Equality Board (to oversee the provisions of the Equality Act), with legal powers to impose fines of up to €500 per day. Currently, that’s not possible.

What would it mean if a State Authority, not the courts, could impose such a damaging fine? The people staffing such authorities are often persons of trust. They are political appointees. Nothing intrinsically wrong in that. But we have good reason to pause if political appointees are given the power to cripple you financially, through an investigative process that excludes the due process of law.

The government would say that its legal proposals include the right for appeals to be lodged in court. But the Constitutional Court is clear that justice, according to our Constitution, demands court involvement from the very beginning.

So the government proposed changing the Constitution. But it needs a two-thirds parliamentary majority for this and the Opposition has refused its support.

Zammit Lewis now comes up with Bill 198, which changes how the Constitution should be interpreted. Henceforth, the word “criminal” can be taken to refer even to fines imposed by any State Authority (MFSA, FIAU, the proposed Equality Board, etc.).

Does the Constitution say Black is Black and White is White? No problem. Zammit Lewis invites us to think he’s Humpty Dumpty; he can make words mean what he wants. When the government says so, Black is White.

And it doesn’t need a two-thirds majority to do this. It just needs a simple majority. Our government officially sees nothing wrong in its MPs and ministers exchanging hundreds of affectionate messages with a man publicly accused of money laundering; but it wants its persons of trust to be able to treat people as “criminal” without affording them the usual constitutional protections.

To be clear, the Bill specifies that just because your infringement might be treated as “criminal” for the purpose of a fine, it doesn’t mean that you will get a criminal record. But that only underlines the fiction. The word is being changed just to get around a fundamental principle.

The proposed Bill has been slammed by four constitutional experts. It’s easy to see why. The implications of the law go way beyond who can fine you.

If a principle affirmed by multiple recent judgements can be overturned by a simple parliamentary majority, just by changing the official meaning of words, then which other principles and rights are safe?

The European Convention on Human Rights remains ultimately out of reach, since to tamper with that would get Malta in trouble with the Council of Europe and the EU. Civil rights, however, acquire the current status of Outside Development Zones or heritage sites: they count only until a government appointee says they don’t count anymore.

Many parts of the Constitution will no longer remain the transparent rules binding governments. If the meaning of words can be changed at will, to enable the government of the day to subvert the Constitutional Court, then laws become political weapons, just as political appointees become effective judges.

And, of course, what one government does arbitrarily, a successor can undo with the same arbitrariness. Instead of being a country with separation of powers, we will become a country where the majority rules and can, if it decides, rule alone.

The legal process and safeguards, based on ensuring transparency, will have been replaced with a system that ensures a thick mist. You can never quite tell if a political appointee’s judgement is based on partisan considerations (ask Repubblika); and you can never quite tell if the rules will change suddenly (ask the firm fined €1.18 million).

⚠️@MaltaGov: you will be met with the strongest possible resistance on our part against any action you take if you attempt to take this matter further. #Repubblika 🇲🇹@CommissionerHR @ChrisMommers @CoE_HRightsRLaw@hrw @coe @euobs @Europarl_ENhttps://t.co/mynWX1wJnf

— repubblika 🇲🇹 #JusticeForDaphne 🌿 (@repubblikaMT) March 6, 2021

Here’s the irony. The immediate motive behind the Bill may well be to demonstrate to the world that we are (now, after years of laxity) prepared to impose hefty fines on financial firms charged with non-compliance; and that we’re serious about equality. But the way it’s being done undermines the project.

To show we have rule of law, the government proposes a constitutional outrage.

To announce that money launderers can no longer assume freedom of action, the government proposes going down a path that puts many civic freedoms at risk.

To tell the world we’re no longer the land of the Artful Dodger, it proposes the mother of all legal dodges.