Kevin Aquilina Legislative recourse to Public Administration law offences – Barking up the wrong tree?
Kevin Aquilina is the Head of the Department of Media, Communications and Technology Law of the University of Malta. He holds a Doctorate of Philosophy in Law (Ph.D) from the London School of Economics and Political Science of the University of London, a Doctorate in Law from the University of Malta (LL.D) and a Masters in International Maritime Law from the International Maritime Organisation’s International Maritime Law Institute (LL.M). Professor Aquilina has held the office of Director General (Courts) and subsequently Chief Executive of the Broadcasting Authority. He drafted all broadcasting legislation between 1999 to 2013. Between 2011 and 2019, he was the Dean of the Faculty of Laws at the University of Malta. He also served as the Chairman of the Press Ethics Commission, Chairman of the Planning Appeals Board, Legal Advisor to the Planning Appeals Board, Member of the Environment and Planning Review Tribunal, Member of the Law Commission and Member of the Holistic Commission for the Reform of Justice Sector. Professor Aquilina has authored various books, written several reports for Maltese and foreign institutions, drafted many primary and subsidiary laws and published papers in edited books and articles in peer-reviewed journals, apart from various contributions to the print, broadcasting and new media.
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1. Introduction
F
ollowing the enactment of the Commissioners for Justice Act, Chapter 291 of the Laws of Malta, in 1981, Maltese Law began to recognise what is today commonly known in Administrative Law as the institute of Administrative Offences. The latter are totally distinct from other offences hitherto established under other branches of Public Law and, needless to say, are quite different from civil damages occasioned by civil wrongs. Administrative offences, though forming part of Public Law, are creatures of Administrative Law. But are they here to stay or are they a transient institute of Administrative Law? What makes them unique in Maltese Law? Why is the legislature having more and more recourse to administrative offences to such an extent that it has been developing considerably this institute instead of having resort to other forms of Public Law offences, notably criminal offences? The purpose of this Article is to compare and contrast administrative offences to other offences contained in Public Law and civil damages in Private Law, and attempt to understand when the legislature thinks that it is best to appropriately utilise administrative offences in lieu of other Public Law offences in the Maltese legal system.
2. Public Law and Private Law Contrasted There are two principal distinctions which need to be drawn when comparing Public Law and Private Law: a first distinction is arrived at latu sensu (in the broad sense), a second distinction is obtained stricto sensu (in the narrow sense). First, a broad distinction has to be made between Public Law offences and Private Law damages. The latter two categories owe their origin to the difference between the two main branches of Maltese Law – Public Law and Private Law. Second, a narrow distinction emerges between offences within Public Law itself. 2.1 Public Law and Private Law Distinguished It is given that Public Law and Private Law are distinct branches of Maltese 4
Administrative Law Law. Yet, there are indeed quite a number of differences between Public Law and Private Law. A compare and contrast approach reveals, inter alia, the following variances: • In Public Law, human rights infringements can only be committed by the State, not by persons. Persons, qua natural or artificial (as distinct from persons acting as state functionaries), cannot breach human rights, though they can still cause harm and be actionable for damages under Private Law. In Private Law, an action for damages can be instituted by a person both against the State and another person. • Human rights violations are normally enforced against the State and, when enforced civilly against a person, they are so enforced against that person in a State functionary capacity. • Criminal, Administrative and Environmental Law1 sanctions apply normally in the realm of Criminal, Administrative and Environmental Law respectively. In the case of Private Law, damages, interest and costs apply instead. This means that private wrongs are never punished by the ultimate penal sanction – imprisonment. • The punishments imposed for a criminal, administrative and environmental offences are at variance with those inflicted in the case of the perpetration of a civil wrong. • In Public Law there are instances where criminal, administrative and environmental offences are kept on record for the lifetime of the perpetrator. Thus, the Conduct Certificates Ordinance, Chapter 77 of the Laws of Malta, consists of the criminal conduct of a sentenced person. In broadcasting, the Broadcasting Authority keeps a register of (administrative) broadcasting law infringements committed by broadcasters.2 No such record 1 Administrative and Environmental Law are two instances of a broader branch of the law – Regulatory Law – where non-criminal and non-civil offences are created and punished. 2 Broadcasting Act, Chapter 350 of the Laws of Malta, Fifth Schedule, paragraph 3. Although this paragraph does not oblige the Authority to hold such a register, administrative practice has been to this effect in order to determine the administrative behaviour of a licensee who might have already been found guilty by the Broadcasting Authority of an administrative offence and an increase in penalty awarded in terms of the said Schedule.
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exists for civil offences other than court judgements which might have declared that a civil wrong was committed and/or damages quantified/inflicted. • The Public Law action is distinct from the Private Law action. One and the same conduct may give rise to more than one action – the Public Law action and the Private Law action. But the remedy afforded differs according to the nature of which action is instituted. • The Public Law action (and remedy) may be multiple whilst the Private Law action (and remedy) is usually singular. Hence, under Public Law there may be a number of remedies for one and the same wrong that may be resorted to, ranging from an actio popularis; recourse to the Ombudsman, a special tribunal, the Courts, and the House of Representatives. All these remedies may be exercised successively (rather than concurrently) on the failure of each and every one of them. • The State is always involved in a Public Law action. In the case of Private Law, the State’s involvement is next to none. • The State – through its agents – enjoys privileges and immunities from legal action that a person (biological or artificial) does not enjoy, e.g. diplomatic, parliamentary and procedural privileges and immunities. • Litigation costs in Public Law are borne by the State; litigation costs in Private Law – except where legal aid is employed – are forked out by private persons. • Public Law is hierarchically superior to Private Law and when there is a conflict between the two, it is the former that prevails. • The Constitution – the fundamental, basic, organic and systemic law of a country – is a Public Law instrument. All laws (primary and delegated; Public or Civil) owe their origin thereto.
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• Public Law is the legal source of authority from which Private Law emanates. • Private Law is the product of Public Law but Public Law is not the consequence of Private Law. • Private Law actions are decided by Public Law organs (courts, tribunals, and arbitrators) or mediated before Public Law appointed mediators. Hence, in Private Law, there exists no Private Law superior authority to the parties to a dispute – the latter must perforce have recourse to Public Law institutions. • Public Law actions tend to be normally extinguished on the death of the party concerned. Private Law actions can be inherited on the death of the party concerned. • Public Law rights normally cannot be renounced3; in certain determinate situations, Private Law allows private rights to be renounced (or, if not totally renounced, altered). • Public Law aims at cohesion, consistency and uniformity in its application in society as it applies indiscriminately to one and all, unless provided otherwise by statute; Private Law can be arbitrary as the parties may in determinate circumstances agree to follow it, ignore it, or change it. • Public Law rights are not normally changed except through the volition of the legislator (unless, of course, a law would have passed into desuetude when changed by the people); Private Law rights may be changed by the parties in terms of law.4 • The State is predominantly the subject of Public Law; a person is predominantly the subject of Private Law. There are of course limited exceptions here, such as when the State acts as a ‘private’ rights holder when suing in a civil court to recoup 3 There are exceptional cases where a Public Law right may be renounced or where Public Law rights are not enforced at the demand of the victim of a crime or where a complaint of the injured party is required for the institution, continuation, and completion of the criminal action. 4 Even this suffers exceptions. For instance, spouses cannot agree not to educate, cloth, maintain and take care of their children.
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tenancy dues or fees (charges, dues, taxes, contributions, etc.), or when a person is instituting an actio popularis to annul an unconstitutional law enacted by Parliament. • Public Law upholds the public interest (collective rights and the common good); Private Law upholds individual rights. Thus, whilst in the case of Public Law, the wrong done is punished through an offence (howsoever classified), in the case of a civil wrong it is punished through the infliction of civil damages. However, there is not one single type of Public Law offence in the same way that there is not one sole type of civil damage in Private Law.5
2.2 Public Law Offences Distinguished Public Law affords a diversified typology of offences. These range from criminal offences to military offences, disciplinary offences to environmental offences and of course, the administrative offence. It is therefore pertinent to differentiate between: (a) a criminal offence and an administrative offence; (b) a criminal offence and a military offence; (c) a criminal offence and a disciplinary offence; (d) an administrative offence and a disciplinary offence; and (e) a criminal offence and an environmental offence.
5 It is not the purpose of this paper to investigate the various forms of damages which may be inflicted.
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3. Distinction between Administrative Offence
a
Criminal
Offence
and
an
An administrative offence is different in nature from a criminal offence.6 They diverge from each other for the following reasons: (a) whilst a criminal offence is prosecuted by the Attorney General in the Superior Courts of criminal jurisdiction and by the Executive Police in the Inferior Courts of criminal jurisdiction, an administrative offence is generally not prosecuted in the criminal law sense of the term because the procedure followed in the case of an administrative offence is that there is no Prosecutor and no person charged and the procedure is civil in nature, except in the case of the Commissioners for Justice Act where the criminal offence has been depenalised; (b) whilst a criminal offence is heard and determined by a court of criminal jurisdiction, an administrative offence is heard and determined by an administrative body or a public officer and, should there be a right of appeal from the decision of that body or officer, the appeal is normally lodged to a quasi-judicial body with, if so allowed by law, a further appeal to a court of civil jurisdiction, normally the Court of Appeal sitting in either its Superior or Inferior Competence, as the case may be, or, exceptionally, to the Civil Court, First Hall; (c) whilst in the case of a criminal offence, the punishments which may be imposed include a punishment of imprisonment or detention, that is a punishment which is restrictive of personal liberty. No such punishment may be imposed in the case of an administrative offence; (d) whilst in the case of a criminal offence, record of that offence 6 The juridical nature of administrative offences is further discussed in Kevin Aquilina, ‘The Juridical Nature of Admistrative Measures’, Law and Practice, Valletta, the Malta Chamber of Advocates, Issue 11, December 2005, pp. 29-41; ‘Old Wine in New Bottles: Shifting the Criminal Sanction into Administrative Law – Part I,’ Law and Practice, Issue 12, June 2006, pp. 33-45 and ‘Old Wine in New Bottles: Shifting the Criminal Sanction into Administrative Law – Part II’, Law and Practice, Issue 13, October 2006, pp. 28-35; and the Editorial ‘Administrative Offences in the Light of Human Rights Law’, Mediterranean Journal of Human Rights, Vol. 15 (Double Issue), 2011, pp. 7-10.
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may, in certain determinate cases be registered in one’s conduct certificate in terms of the Conduct Certificates Ordinance (as explained in paragraph (e) below) and/or in the register of sexual offences and other offences of serious violence in terms of the Protection of Minors (Registration) Act,7 no such registration normally takes place in the case of an administrative offence. Hence, whilst an employer may have information on a prospective employee’s criminal record, no such information can be made available to an employer in relation to an administrative offence in so far as these are unregistered; (e) when dealing with criminal offences, the Criminal Code8 distinguishes between two types of fines: multa and ammenda in Article 7 thereof. Article 7(1) states that one of the punishments for a crime is a fine to be known as a multa whilst Article 7(2) provides that one of the punishments for a contravention is also a fine to be known as an ammenda. The consequences of this distinction are borne out in Articles 11 and 13 of the Criminal Code: a multa is converted into imprisonment; an ammenda is converted into detention; the maximum for a multa (unless otherwise provided for) is one thousand, one hundred and sixty-four euro and sixty-nine cents whilst the maximum for an ammenda is fifty-eight euro and twenty-three cents; the minimum of a multa (unless otherwise provided for) is twentythree euro and twenty-nine cents whilst the minimum of an ammenda is six euro and ninety-nine cents. A multa is converted into imprisonment at the rate of one day for every thirty-five euro (subject to exceptions) but cannot exceed two years imprisonment, whilst an ammenda is converted into detention at the rate of eleven euro and sixty-five cents but cannot exceed one month’s duration. Other consequences derive from this distinction for instance in the Conduct Certificates Ordinance in terms of which a contravention is not entered at all into a conduct certificate9 whilst a crime is normally so entered but in the case of minor crime a period of time has to elapse before it is no longer registered in a conduct certificate;10 7 8 9 10
Protection of Minors (Registration) Act, Chapter 518 of the Laws of Malta. Criminal Code, Chapter 9 of the Laws of Malta. Conduct Certificates Ordinance, Chapter 77 of the Laws of Malta, Article 5(a). ibid, Articles 6 to 9 and Second and Third Schedules.
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(f) Insofar as an administrative pecuniary penalty is concerned, the Commissioners for Justice Act follows the same distinction between a multa and an ammenda mainly because the administrative offences brought before a Commissioner for Justice are depenalised criminal offences. But in both the case of a multa or an ammenda inflicted by a Commissioner for Justice, the penalty in question is always collected through civil process. However, in other cases, such as in the case of Article 15 of the Eco-Contribution Act,11 no such distinction is made between a multa and an ammenda. In fact this provision refers to the administrative penalty as a ‘fine’ and as a ‘multa’. But Article 18(2) further provides that if the penalty due is not paid, it constitutes an executive title for the purposes of the Code of Organisation and Civil Procedure;12 (g) in the case of a multa imposed for a criminal offence, the multa can be converted into imprisonment if left unpaid; on the other hand, a multa inflicted as a punishment for an administrative offence is levied by civil (not criminal) process and hence there is no conversion into imprisonment. Hence, although the term multa may be used in a law, it is not necessarily indicative that such a multa is being awarded as a result of a criminal offence. As will be discussed below, a multa may also be inflicted in the case of a military offence, the latter not being classified as a criminal offence; (h) the punishments to be inflicted in relation to an administrative offence have developed independentlyofthe punishment inflicted for a criminal offence even if, to a certain extent, the latter has been inspired by the former. Punishments awarded for administrative offences include both pecuniary and non-pecuniary penalties. Pecuniary penalties comprise: (i) a penalty (sometimes also referred to as a ‘fine’),13 11 Eco-Contribution Act, Chapter 473 of the Laws of Malta, Article 15. 12 Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, Article 18(2). 13 For instance, the Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(4) (c), Development Planning Act, Chapter 356 of the Laws of Malta, Article 58, Companies Act, Chapter 386 of the Laws of Malta, Article 427(2) and the Eleventh Schedule, Insurance Business
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(ii) an additional penalty,14 (iii) a daily penalty for a continuing infringement,15 (iv) a suspended penalty,16 (v) a compromise penalty,17 (vi)
penalty notices (on the spot penalties),18 19 (vii) an amount due for renewal of a licence,
(viii) interest charges inflicted for late payment,20 Act, Chapter 403 of the Laws of Malta, Article 67(6), Insurance Brokers and Other Intermediaries Act, Chapter 404 of the Laws of Malta, Article 3(3)(d), Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta, Article 38(3), Lotteries and Other Games Act, Chapter 438 of the Laws of Malta, Article 68, Malta Statistics Authority Act, Chapter 422 of the Laws of Malta, Article 43(1), and Trading Licences Regulations, Regulation 51, 2002 (L.N. 102 of 2002). 14 Commissioners for Justice Act, Chapter 291 Laws of Malta, Articles 5(4) and 10(2). 15 Companies Act, Chapter 386 of the Laws of Malta, Article 427(2) and the Eleventh Schedule, Insurance Business Act, Chapter 403 of the Laws of Malta, Article 67(6), Insurance Brokers and Other Intermediaries Act, Chapter 404 of the Laws of Malta, Article 3(3)(e), Value Added Tax Act, Chapter 406 Laws of Malta, Article 39(1)(b) and (2)(b), Malta Statistics Authority Act, Chapter 422 of the Laws of Malta, Article 43(2), Telecommunications (Administrative Fines and Sanctions) regulations, regulation 7(1), 2002 (L.N. 231 of 2002), and the Second Schedule to the Fines and Penalties for Offences Regulations, 2003 (L.N. 357 of 2002 as amended by L.N. 386 of 2003). 16 For instance, Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(4)(c). 17 For instance, Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(5), Development Planning Act, Chapter 356 of the Laws of Malta, Article 58(2), Value Added Tax Act, Chapter 406 of the Laws of Malta, Article 84, Malta Travel and Tourism Services Act, Chapter 409 of the Laws of Malta, Article 45(2), Environment Protection Act, Chapter 435 of the Laws of Malta, Article 26, Lotteries and Other Games Act, Chapter 438 of the Laws of Malta, Article 68(2) and Animal Welfare Act, Chapter 439 of the Laws of Malta, Article 47. 18 In the case of an on-the-spot penalty, the Commissioners for Justice Act, Chapter 271 of the Laws of Malta, Article 14(2), provides that any police officer and any other officer, authority or person charged with the responsibility for law enforcement may hand over to the offender a notice containing a general description of the offence, the penalty to be paid, the place where it can be paid, the period for payment and the consequences of non-payment. Vide also the Traffic Regulation Ordinance, Chapter 65 of the Laws of Malta, Article 62(2), and the Traffic Offence Ticket Regulations, 1981 (L.N. 52 of 1981; S.L. 65.09). 19 Traffic Regulation Ordinance, Chapter 65 of the Laws of Malta, Article 57(2) empowers the Malta Transport Authority to collect as a civil debt the amount due for renewal of a motor vehicle licence. 20 Income Tax Management Act, Chapter 372 of the Laws of Malta, Article 44, and the Value Added Tax Act, Chapter 406 of the Laws of Malta, Article 21(4).
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(ix)
expenses to remedy the administrative offence,21
consequences
of
an
(x) expenses incurred by the competent authority in publishing naming and shaming statements or notices22 and other publications,23 and in inspecting documents,24 and (xi) failure to pay licence fees, to notify the competent authority with certain information required by law and to appoint/change auditors.25 Non-pecuniary sanctions include the following: (i) warning,26 (ii) naming and shaming27 or censure,28 (iii) putting a broadcasting radio or television station off air for a specified period of time,29 (iv) revocation, modification or suspension of a licence,30 (v) non-renewal of a licence pending settlement of a fine 21 Commissioners for Justice Act, Chapter 291 of the Laws of Malta, Article 10(4). 22 Insurance Business Act, Chapter 403 of the Laws of Malta, Article 28(5). 23 Restoring a name struck off the brokers register or the brokers list under the Insurance Brokers and Other Intermediaries Act, Chapter 404 of the Laws of Malta, Article 18, and striking names off the sub-agents company registers or the sub-agents list under the Insurance Brokers and Other Intermediaries Act, Chapter 404 of the Laws of Malta, Article 35(5). 24 Insurance Business Act, Chapter 403 of the Laws of Malta, Article 30(6). 25 Fine and Penalties for Offences Regulations, Regulation 3(2) and Second Schedule, 2002 (L.N. 357 of 2002). 26 Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(4)(a). 27 Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(7), the Insurance Business Act, Chapter 403 of the Laws of Malta, Article 28(4), and Prevention of Financial Markets Abuse Act, Chapter 476 of the Laws of Malta, Article 22(3). 28 Financial Markets Act, Chapter 345 of the Laws of Malta, Article 20(3). 29 Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(4)(b). 30 Postal Services Act, Chapter 254 of the Laws of Malta, Article 63, Broadcasting Act, Chapter 350 of the Laws of Malta, Article 16(4), and Development Planning Act, Chapter 356 of the Laws of Malta, Article 39A(1).
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ammenda) awarded by a court,31 or a quasi-judicial tribunal32 or the public administration,33 (vi) forfeiture of any object used in the commission of an offence,34 and (vii) remedying the offence;35 (i) a criminal offence is extinguished by the death of the offender but an administrative offence need not necessarily be so extinguished unless there is a specific rule to that effect; (j) criminal offences are aimed at the most heinous crimes on the statute book. Administrative offences are on the other hand used to deter minor infringements of the law. In certain cases, non-compliance with an administrative order can lead to the commission of a criminal offence but not vice-versa; and (k) criminal offences are regulated by the right to a fair and public trial whilst administrative offences are not fully regulated by this human right.
31 Trading Licences Act, Chapter 441 of the Laws of Malta, Article 32. 32 Traffic Regulation Ordinance, Chapter 65 of the Laws of Malta, Article 56, reads as follows: Where any fine (multa or ammenda) is awarded by a court of criminal jurisdiction, or where a Commissioner for Justice has made an order for the payment of a penalty under the provisions of the Commissioners for Justice Act, in connection with any offence under this Ordinance committed by the use of any motor vehicle, and such fine or penalty, as the case may be, has not been paid, the Authority shall withhold from renewing that motor vehicle’s road licence on the expiry thereof until such time as the payment of the fine or the penalty is effected. 33 Radiocommunications (Penalties and Voluntary Settlement of Disputes Procedures) Regulations, Regulation 5, 2004 (L.N. 439 of 2004). 34 Commissioners for Justice Act, Chapter 291 of the Laws of Malta, Article 10(2)(3). 35 Broadcasting Act, Chapter 350 of the Laws of Malta, Article 41(5), the Development Planning Act, Chapter 356 of the Laws of Malta, Article 58(2), Malta Travel and Tourism Services Act, Chapter. 409 of the Laws of Malta, Article 45(2), Malta Communications Authority Act, Chapter 418 of the Laws of Malta, Article 31, Data Protection Act, Chapter 440 of the Laws of Malta, Article 42, the Sports Act, Chapter 455 of the Laws of Malta, Article 54(3), and the Medicines Act, Chapter 458 of the Laws of Malta, Article 100(1)(3).
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4. Distinction between a Criminal Offence and a Military Offence A military offence, although it has the semblance of a criminal offence, in fact is not referred to as a criminal offence. Whilst criminal offences are created by the Criminal Code and other special laws of a criminal nature, military offences are established only by one enactment – the Malta Armed Forces Act.36 Indeed, Part III of the latter enactment, in Articles 37 to 75, contains a list of military offences. Nevertheless, the Malta Armed Forces Act distinguishes between a military offence and a civil offence. The latter are regulated by Article 75 of the said enactment. However, civil offences as understood by the Malta Armed Forces Act are not strictly speaking ‘civil’ in the sense of a Private Law civil wrong but, on the contrary, are fully fledged criminal offences committed by any person subject to military law. So one has to be very careful not to confuse terminology for the Malta Armed Forces Act Article 75, which uses the term ‘civil offence’, as defined in Article 2(1) of the Malta Armed Forces Act, as meaning ‘an act or omission punishable by the law of Malta or which, if committed in Malta, would be punishable by that law’, in the sense of a criminal offence. The punishments inflicted for military offences vary from those awarded for criminal offences. Further, the punishments for criminal offences (that is, crimes and contraventions) are listed in the Criminal Code. Crimes are punished through imprisonment, solitary confinement, interdiction and a fine (multa) whilst contraventions attract the punishments of detention, fine (ammenda), or reprimand or admonition. Punishments for military offences are listed in Articles 76 to 79. They vary according to rank. In the case of officers, these are: (a) imprisonment for life; (b) imprisonment for a term not exceeding twenty-five years; (c) cashiering; (d) dismissal from the service; (e) forfeiture in the prescribed manner of seniority of rank; 36
Malta Armed Forces Act, Chapter 220 of the Laws of Malta.
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(f) fine; (g) severe reprimand or reprimand; (h) where the offence has occasioned any expense, loss or damage, stoppages. In the case of other ranks, these are: (a) imprisonment for life; (b) imprisonment for a term not exceeding twenty-five years; (c) dismissal with disgrace from the service; (d) dismissal from the service; (e) detention for a term not exceeding two years; (f) where the offender is on active service on the day of the sentence, field punishment for a period not exceeding ninety days; (g) in the case of a warrant officer or non-commissioned officer, reduction in the ranks or any less reduction in rank; (h) in the case of a warrant officer or non-commissioned officer, forfeiture in the prescribed manner of seniority or rank; (i) where the offence is desertion, forfeiture of service; (j) where the offender is on active service on the day of the sentence, forfeiture of pay for a period beginning with the day of the sentence and not exceeding ninety days; (k) fine; (l) in the case of a warrant officer or non-commissioned officer, severe reprimand or reprimand; 16
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(m) where the offence has occasioned any expense, loss or damage, stoppages. It is to be noted that in the Maltese version of Articles 76 and 77, fine is translated as multa not ammenda and is regulated by Article 79. Furthermore, Article 78 sets out field punishments. Even the subjects of military law, that is, the perpetrators of a military offence, are different from persons accused or charged with a criminal offence. The former are ‘persons subject to military law’. This expression is defined by Article 178 of the Malta Armed Forces Act as including officers of the Malta Armed Forces, men37 of the Armed Forces, and any other person who, though not an officer or man of the force, is employed in government service or is in receipt of a pension in respect of service in the regular force. Thus, military offences can only be committed by persons subject to military law, not by civilians. Furthermore, the procedure for adjudicating a military offence is different from that of a criminal offence. Indeed, a charge for a military offence can be dealt with summarily or by court-martial.38 In the former case, it is the appropriate superior authority or the commanding officer of the person charged with a military offence who deals with the offence.39 In the latter case, the court-martial consists of persons subject to military law.40 Civilians, whether judges or magistrates, do not sit in a court-martial. However, it is possible to appeal the sentence of a court-martial to the Court of Criminal Appeal sitting in its superior competence.41 In terms of Article 114 of the Malta Armed Forces Act, a finding or sentence of a court-martial may be reviewed by the President of Malta or by a judge designated by the President for this purpose. Nonetheless, this procedure applies only where no appeal is lodged to the Court of Criminal Appeal or where such an appeal has been lodged either on a finding or sentence and either that finding or sentence has not been appealed before the Court of Criminal Appeal.42 Finally, the Commander of the Malta Armed Forces may reconsider sentences of imprisonment or detention, where remission is justified, 37 38 39 40 41 42
Men includes women. Malta Armed Forces Act, Chapter 220 of the Laws of Malta, Article 83. ibid. ibid., Articles 92-94. ibid., Article 116. ibid., Article 114(3).
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whether in whole or in part.43 In the case of a criminal offence, it is only the courts of criminal jurisdiction which can take cognizance thereof, whether they are courts of original instance or appellate instance. Criminal offences do not admit of an adjudicating authority which is not a court as is the case with a court-martial or a tribunal.
5. Distinction between a Criminal Offence and a Disciplinary Offence Not all offences of a disciplinary nature enjoy the same legal status. There are disciplinary offences where are statutory, that is, they are established by law. Such is the case with the Police Act44 and the Discipline in the Public Service Commission Regulations.45 There are other disciplinary offences which are non-statutory, that is, they are not established by law. Such is the case with regard to collective bargaining where the employer and employees (the latter through their trade union or unions) come together to draw up a collective agreement and list the disciplinary offences and the procedure to be followed when hearing and determining disciplinary procedures including the establishment of a disciplinary board to hear these cases, its composition, powers, procedure, punishments to be inflicted and any appeal mechanism therefrom which might apply. The non-statutory disciplinary offences fall more within the realm of Employment Law. The statutory disciplinary offences fall more within the remit of Administrative Law in so far as the public administration is concerned, though, they are distinguished from administrative offences. The European Court of Human Rights has commented as follows on this distinction: All the Contracting States make a distinction of long standing, albeit in different forms and degrees, between disciplinary proceedings and criminal proceedings. For the individuals affected, the former usually offer substantial advantages in comparison with the latter, for example as concerns the sentences passed. Disciplinary sentences, in general less severe, do not 43 ibid., Article 115. 44 Police Act, Chapter 164 of the Laws of Malta. Disciplinary offences are found in Articles 31 to 33 and in the Third Schedule.. 45 Disciplinary Procedure in the Public Service Commission Regulations, Subsidiary Legislation 0.03. The procedure followed in disciplinary cases in the public service is discussed in Kevin Aquilina, ‘Key Elements to Ensure a Legally Valid Process in Internal Disciplinary Procedures’, Id-Dritt, Vol. XXV, 2015, pp. 3-22.
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appear in the person’s criminal record and entail more limited consequences. It may nevertheless be otherwise; moreover, criminal proceedings are ordinarily accompanied by fuller guarantees.46
6. Distinction between an Administrative Offence and a Disciplinary Offence Although, as stated above, both an administrative offence and a disciplinary offence may, in determinate cases, fall to be regulated by administrative law, the two categories of offences are not identical to each other. The juridical nature of an administrative offence differs from that of a disciplinary offence because in the former case, the accused is normally a third party extraneous to the administrative body which will adjudicate upon the administrative offence whilst in the latter case, the accused is normally an officer of the administrative body concerned. Even the punishments differ in nature. Disciplinary offences can include punishments related to demotion in rank, loss of seniority, postponement of increments, suspension from service, and outright dismissal. Administrative offences do not incur such punishments. In the case of administrative offences, the punishments vary from some sort of pecuniary fine, howsoever called, and some other punishment which does not however involve loss of liberty as is the case with a suspension, reduction in time or withdrawal of an authorisation, permit, permission or some other form of licence, howsoever designated. In Maltese Criminal Law, the expression ‘criminal offence’ has got its own peculiar meaning which distinguishes it from foreign jurisdictions which use different terminology to define a criminal offence such as a ‘crime’. Thus, the term ‘crime’ as used in Maltese Criminal Law excludes contraventions whilst in certain foreign jurisdictions ‘crime’ refers to both crimes and contraventions. What is to be borne in mind is that in Malta, a criminal offence and a crime are neither tautologous nor coterminous; a crime is a more heinous form of a criminal offence as distinguished from a contravention which is a minor offence in nature. This distinction has to be kept in mind also when studying the decisions of the European Court of Human Rights which refer to a 46 Engel and Others v. The Netherlands, European Court of Human Rights (8 June 1976). Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, paragraph 80.
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‘criminal charge’. The leading Strasbourg Court decision in this respect is the above cited Engel and Others v. The Netherlands. In that landmark decision, the Court held that: The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7. Such a choice, which has the effect of rendering applicable Articles 6 and 7, in principle escapes supervision by the Court.47 It went on to define the constitutive elements of a criminal charge as follows: In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the Court expresses its agreement with the Government. However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the “criminal” sphere deprivations 47
ibid., paragraph 81.
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of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so ...48 Thus, the European Court of Human Rights has established a threefold classification of a criminal charge: (a) the classification of the alleged breach of domestic law, that is, how does the domestic law categorise that offence; (b) the scope of the violated norm; (c) the nature and severity of the penalty.49 Disciplinary measures are not considered to constitute an administrative act.50 They can of course be applied by the administration against its own employees51 or by a competent organ of the public administration52 against the members of certain professions. Nonetheless, certain disciplinary sanctions are not considered to fall within the definition of an administrative act as contained in Article 469A(2) of the Code of Organisation and Civil Procedure. In fact, this Article specifically excludes in their respect ‘any measure intended for internal organisation or administration’ within the public authority.53 48 ibid., paragraph 82. 49 For an explanation of these criteria see, Dovydas Vitkauskas and Grigoriy Dikov, Protecting the Right to a Fair Trial under the European Convention on Human Rights, Strasbourg, Council of Europe, 2012, pp. 16-12, available at: <http://www.coe.int/t/dgi/hr-natimplement/ Source/documentation/hb12_fairtrial_en.pdf>. 50 An administrative act, according to the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, Article 469A(2) ‘includes the issuing by a public authority of any order, licence, permit, warrant, decision or a refusal to any demand of a claimant’. 51 Such is the case under the Disciplinary Procedure in the Public Service Regulations, 2000 (L.N. 186 of 1999, S.L. Const. 03). 52 For instance, the Notarial Profession and Notarial Archives Act, Chapter 55 of the Laws of Malta, Articles 110 to 145 the Commission for the Administration of Justice Act, Chapter 369 of the Laws of Malta, Article 3, the Health Care Professions Act, Chapter 464 of the Laws of Malta, Articles 31 to 41, the Social Work Profession Act, Chapter 468 of the Laws of Malta, Article 9 and the Psychology Profession Act, Chapter 471 of the Laws of Malta, Article 9. 53 The public authority is defined as meaning ‘the Government of Malta, including its Ministries and departments, local authorities and any body corporate established by law’.
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id-dritt
7. Distinction between Environmental Offence
a
Criminal
Offence
and
an
A novel feature of environmental offences is the ‘compromise penalty’, which can be inflicted upon the alleged offender following his/her own express agreement thereto as is the position, for instance, under Article 26 of the Environment Protection Act and Article 38(3) of the Occupational Health and Safety Authority Act. If no such agreement is reached between the would-be offender and the regulator, then the latter cannot inflict an environmental penalty but must have recourse to the criminal action through the Commissioner of Police. In the case of a criminal fine there is no need for the court to obtain the offender’s concurrence before inflicting the said fine.
8. Overlapping of Public Law Offences Due to their variegated nature of Public Law, offences can overlap such that a person may be accused of different offences at one and the same time or at different intervals, e.g. a criminal offence and an administrative offence. Whilst in the case of overlapping criminal offences the matter is by and large settled through the application of the ne bis in idem principle, a vexed problem arises when the overlap is not between criminal offences but between a criminal offence, on the one hand, and any other type of offence, including an administrative offence, on the other. Here the waters are murkier,and the Strasbourg Court still has to define the contours of when to apply or not the ne bis in idem principle in relation to non-criminal offences.
9. Reasons Why Administrative Offences are Resorted to Whilst administrative offences are a distinct and separate category of offences in Public Law with their own peculiar characteristics and nuances, still it is not clear why the legislator resorts to their adoption in statutory law in lieu of other offences (such as criminal offences) or the liquidation of damages for civil wrongs. In the absence of any statutory guidance as to which type of offence is to be incorporated into a statute, it is only possible to attempt to surmise these reasons for the legislative creation of administrative 22
Administrative Law
offences, in lieu of other offences, through a study of statutory law. Possibly the reasons comprise the following: (a) administrative offences are faster to determine as they do not involve recourse to the courts of criminal jurisdiction which take more time to decide pending litigation; (b) there is less formality in relation to the procedure for the infliction of an administrative offence when compared to the imposition of a criminal penalty by a court of criminal jurisdiction; (c) administrative offences allow for a regime which does not involve a formal court setting. On the contrary, they are challenged before tribunals not necessarily presided by the judiciary and which do not necessarily hold their sittings within the court building; (d) administrative offences supplement the tribunalâ&#x20AC;&#x2122;s budget in so far as the proceeds collected from the fines inflicted by the tribunal can be deposited in the tribunalâ&#x20AC;&#x2122;s bank account rather than in government coffers; (e) administrative offences are heard by specialized tribunals where the members of the tribunal would be experts in the field, the tribunal is called upon to adjudge whilst in the case of the courts the judiciary would have to employ their own experts due to their lack of expertise in the specialized field concerned; (f) administrative offences do not cater for custodial punishments but punishments which do not deprive oneâ&#x20AC;&#x2122;s freedom. This makes the implementation of their punishments less expensive to government coffers; and (g) administrative offences are nearer to the public administration than to a judicial body in so far as they are inflicted by the public administration, whilst in the case of criminal offences the public administration is detached in their imposition by the courts of criminal jurisdiction; (h) administrative offences are cheaper to determine, impose and 23
id-dritt enforce than criminal offences. Hence, savings may be made to the governmentâ&#x20AC;&#x2122;s coffers.
10. Conclusion The above list of advantages for the creation by statute of administrative offences does in no way imply that they are bereft of any defect. For instance, they might be exercised in breach of Human Rights Law, in particular the right to a fair and public trial, bearing in mind that the members of the tribunals appointed to hear those cases might lack Human Rights Law training. Yet, this notwithstanding, administrative offences are here to stay and this is evidenced by the proliferation of these types of offences in the statute book when compared to other Public Law offences; recourse is being had more frequently in statutory legislation to the administrative offence than to the criminal offence or to civil damages. But, overall, it cannot be said that the administrative offence has totally supplanted the other Public Law offences and civil damages. On the contrary, the argument can be made that the legislature is not barking up the wrong tree when it is having recourse to a plethora of Public Law offences and civil damages at one and the same time as all these diverse Public Law offences and civil damages are â&#x20AC;&#x201C; at least at the moment of writing â&#x20AC;&#x201C; complementary, not antagonistic, to each other. Therefore, the administrative offence has not displaced other forms of Public Law offences and civil damages even though, in certain respects, it still remains rudimentary and undeveloped in so far as there is no universal holistic procedure applicable thereto.
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