Issue link: https://maltatoday.uberflip.com/i/1350550
THE supremacy of our Constitution is the keystone upon which the entire Constitutional structure rests. Our courts are empowered to strike down laws which are found to be incon- sistent with the Constitution and in particu- lar those laws which breach the fundamental rights and freedoms of the individual set forth in our Constitution. The European Court of Human Rights and the Constitutional Court of Malta have in a number of cases ruled that the infliction of an administrative penalty in a case where it re- tained its criminal character could only be im- posed by an independent and impartial court. Our courts have also made it amply clear that at all stages of proceedings considered to be criminal, applicants had a right of access to a court, namely one presided over by a magis- trate or a judge. Changes to a number of laws became nec- essary following two landmark constitution- al judgments, Federation of Estate Agents vs Director General Compe- tition et delivered on May 3, 2016 and Rosette Thake noe et vs Electoral Com- mission et delivered on October 8, 2018. For a number of months Government chose to completely ignore the Constitutional Court's judgements. They were both left to gather dust on the table of the House. It was only in 2019 that gov- ernment moved a bill to amend the Competition Act and the Consumer Affairs Act to bring them in line with the Constitu- tion of Malta in the light of the two judgements of the Constitutional Court. The power to hear and decide on infringements of the Competition Act was rightly vested in the Civil Court (Commercial Section) and the Court of Magistrates whilst the Office for Competition and the Director General (Consumer Affairs) retained their investigative and prosecutorial roles. Parliamentary Secretary Deo Debattista and former Justice Minister Owen Bonnici had applauded the amendments which effectively banned the imposition of stiff fines by the Of- fice for Competition. It was the right thing to do and government had consciously set a positive precedent on how to bring a number of other laws in line with the Constitution. Unfortunately, what followed was a complete disappointment. Instead of following the good practice it had just set, Government decided to go in the extreme opposite direction. In October 2020 Minister Edward Zammit Lewis proposed a bill to amend the Consti- tution which would have dealt a most severe blow to the right to a fair hearing. It was imme- diately shot down by the Opposition and since a two-thirds majority of MPs was needed for its approval, the minister was left with no other option but to bring the parliamentary process to a screeching halt. Many thought the minister had snapped back into his good legal senses. It was not the case. Just a couple of weeks ago, Zammit Lewis ta- bled a seemingly innocuous new Bill to amend the Interpretation Act – an ordinary law first enacted in 1975 to provide for the interpreta- tion of the language used in legal instruments. The proposed Bill is a clear attempt at statu- torily overriding and circumventing the Con- stitution and the Constitutional Court's judge- ments on the matter. In essence, it attempts to amend the Constitution in the same way the previ- ous Bill sought to do while avoiding the added hurdle of a two-thirds majority in the House. Unlike the most important provisions of the Constitution, the Interpre- tation Act can be amend- ed by a simple majority of MPs. Unsurprisingly the Bill has been publicly slated by Malta's leading consti- tutional experts: Giovanni Bonello, Kevin Aquilina, Tonio Borg, Austin Benci- ni and Anthony Borg Barthet. All of them have made it very clear that the bill is wrong and also pre- dicted that it will be legally overturned by the Consti- tutional Court. The Cham- ber of Advocates labelled the bill as "a short-sighted and very dangerous option that places the protection of law in jeopardy". The Opposition has also publicly declared that it will be forcefully opposing the bill at every stage of the parliamentary process. The solution to the government's conun- drum is actually quite simple: retain the in- vestigative and prosecutorial roles of public authorities and empower our courts with the exclusive right to impose stiff penalties after a fair hearing of the case. It's not rocket science. It is rather a basic un- derstanding of our Constitution and a genuine willingness to protect, cherish, and defend its basic tenets. EVEN before the COVID-19 pan- demic, more than 1 in 6 people in the EU were diagnosed with men- tal health issues, making up one of the largest categories of diseases. We must start taking the matter as seriously as physical health. When not treated, these conditions corre- late with chronic physical illnesses – such as heart disease. They also elevate the risk of bodily injury and death through accidents, violence, and suicide. There is immense per- sonal suffering to those impacted and their families, friends and com- munities. Mental health issues have been on the rise for the past decade, and the ongoing Covid-19 crisis has only ex- acerbated this problem. Isolation, fear for one's safety or for others, the strain of economic uncertainty and adjusting to new realities such as home-school- ing or teleworking, have contribut- ed to a historic rise in mental health problems. Before the pandemic, exist- ing mental healthcare services lacked adequate resources, were under-fund- ed and were often struggling to meet the demands of their communities. Clearly, there are structural problems in how society responds to and values mental health issues. There is a massive disparity between the immense impact that mental health issues have on our societies and the level of commitment and solu- tions made to efficiently address them. There is considerable inequality in ac- cess to mental health treatment, both between Member States and inside them. Persistently, mental health is not considered part of essential services. There is an immense human cost to this, but also a material one. It's diffi- cult to estimate the total economic im- pact of mental illness in the EU, but we know it to be at least €600 billion per year – or more than 4% of our GDP. Mental health problems have become the leading cause of disability-relat- ed early retirement in many Member States, amounting to millions of lost working years. There is a high threshold for seeking treatment, or other forms of help, due to stigma or lack of awareness. The hoops people have to jump through; social pressure, excessive waiting times, treatment costs and lack of ac- cess, all prevent people from recover- ing. We would consider these obsta- cles to treatment unacceptable for any physical ailment. Why can't we give the same rights and dignity for people with mental illness, especially consid- ering how much is at stake? Right now, the EU is heavily invest- ing in strategic sectors in the European economy to boost recovery after the pandemic. Unfortunately, little atten- tion has been paid to rebuilding and promoting the mental health and well- being of Europeans. This lack of atten- tion to what many experts call the next big health crisis in Europe is complete- ly unacceptable. The past year has refocused the EU institutions' consideration of health policy, and President Von der Leyen has made it clear that the Commis- sion aspires for a more robust Europe- an Health Union. This is all well and good, but if we want this European Health Union to be truly effective and resilient, we need to guarantee that cit- izens' mental health and wellbeing are given the same due considerations as their physical health. As we move towards what seems to be the end of the COVID-19 pandem- ic, it's important for us to make sure that the aftershocks of the pandemic do not result in further crisis- specifi- cally, a mental health crisis. We must ensure that Mental Health is put at the heart of the European Agenda. The long-term recovery from this crisis is dependent on how the EU and its Member States support the quality of life and well-being of its citizens, which will, in turn, affect Europe's long-term cohesion, economic performance and productivity. It's time to act based on evidence, statistics and science. We can no longer ignore this reality faced by millions of citizens or future generations will judge the EU's inac- tion. It is, therefore, time to urge the Commission to swiftly address these issues and come forward with a com- prehensive Mental Health Strategy, that addresses both the impact of the Covid-19 crisis on mental health and the underlying structural problems of our health care systems and our soci- ety in tackling mental health and well- being. Written by the Co-Chairs of the Coalition for Mental Health and Wellbeing: MEP Alviina Alametsä (Greens/EFA - Finland), MEP Cyrus Engerer (S&D- Malta), MEP Soraya Rodriguez (Renew Europe- Spain), MEP Maria Walsh (EPP- Ireland), MEP Sara Cerdas (S&D - Portugal) Karol Aquilina is shadow minister for justice (PN) Karol Aquilina 13 maltatoday | SUNDAY • 14 MARCH 2021 OPINION Respecting our Constitution Towards a European mental health strategy The solution to the government's conundrum is actually quite simple: retain the investigative and prosecutorial roles of public authorities and empower our courts with the exclusive right to impose stiff penalties after a fair hearing of the case