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2 maltatoday EXECUTIVE EDITOR Matthew Vella mvella@mediatoday.com.mt Letters to the Editor, MaltaToday, Vjal ir-Rihan, San Gwann SGN 9016 E-mail: dailynews@mediatoday.com.mt Letters must be concise, no pen names accepted, include full name and address maltatoday | SUNDAY • 18 JULY 2021 Greylisting is an opportunity for compromise Editorial Greylisting is also an opportunity for compromise Perhaps unwittingly, a recent Parliamentary debate touched upon an issue that is highly relevant, at the moment: not just in Malta, but everywhere else in the world. In an age when so many services, previously pro- vided by the State, have been farmed out to private companies or PPPs… to what extent can this para- digm conceivably be taken? How long before certain intrinsic functions of the State itself – like policing, for instance; or (in Malta's particular case) dishing out fines, or other punitive measures – also end up being 'subcontracted' to other entities? Here, the State's divestment of responsibility may be considerably more problematic, than in the usual areas: education, health, public transport, etc. There are immediate, recognizable pitfalls, when it comes to relegating such departments as the judici- ary, or the police, to the same level. So it is entire- ly understandable that the Opposition would vote against a Constitutional amendment that – while on a much smaller scale – does indeed raise comparable concerns here in Malta. And because the amendment itself concerned a proviso that required a two-thirds parliamentary backing: the Opposition's defeat of the motion also marks a rare instance when Malta's government has been stopped in its tracks, by means of a Parliamen- tary resolution. But, as always, the situation is complex. In a nut- shell, the Constitutional change proposed by Justice Minister Edward Zammit Lewis sought to introduce a clause that allows independent administrative and regulatory authorities to impose administrative pen- alties or measures "which may have the characteris- tics of a charge or punishment of a criminal nature". And to be fair, there are many valid reasons to consider such a proposal. One of the foremost com- plaints against such regulators as the Planning Au- thority, for instance, is that it always proves toothless when it comes down to enforcing laws with the rich and powerful. Specifically, however, the Bill also intended to close a legal loophole that has been used many times to evade paying the price for infringements. (Ironically, one such court cases was instituted by the Nationalist Party itself, against the Electoral Commission: which had open an investigation in line with the party-fi- nancing laws, over allegations that PN official wages were paid by a private company.) And to complicate matters further: this Constitu- tional loophole is also one of the factors highlight- ed by the FTAF: if not as a direct cause of Malta's grey-listing, certainly as one of the problems that need fixing, if our position is to be regulated in future. Ahead of the parliamentary sitting, Financial Intel- ligence Analysis Unit director Kenneth Farrugia even warned the constitutional amendment would have given regulatory authorities the necessary bite in the discharge of their duties: after this function was suc- cessfully challenged in two constitutional court cases in the past. "If we don't have this protection at law, the FATF greylist deadline of January 2023 will not be met be- fore 2026; because one of the issues raised was the need to have compliance on the ground through ef- fective, dissuasive and proportionate sanctions," Far- rugia said. Nonetheless, this does not mean that the Opposi- tion's stated concerns are no longer valid. Opposition MP Joseph Ellis argued that the changes undermined the principle of due process on fines that, in some instances, could reach millions of euros. Chris Said insisted that the changes would undermine the guar- antees of a fair trial and due process enshrined in the Constitution. And Therese Comodini Cachia certainly had a point, when she reminded us that authorities with government-appointed members could not be trust- ed with dishing out fines of a criminal nature. Clearly, then, we cannot rush so blindly into a Con- stitutional change that can have such far-reaching ef- fects, in so many directions. To be fair, Zammit Lewis did at least try to appease those concerns, by present- ing an amendment to add "the obligation to ensure due process is followed in dishing out the fines, and injured parties would have the right to appeal before the law courts." Nor does he even have much of a choice, but to try and introduce this kind of legislation (this time round, having to depend entirely on the Opposition's support for success). In the end, perhaps it was fitting that this first at- tempt proved a failure: for Zammit Lewis's bill – as presented – simply did not provide enough guaran- tees, for the protection of ordinary people's rights. But there is no reason why a compromise, in this instance, cannot be reached. And if nothing else, this may be the only silver lining of Malta's greylisting ex- perience: it is also an opportunity to show how the two parties can, indeed, work together to confront a common challenge. Government must therefore go back to the draw- ing board, and come up with a solution that will both close the legal loophole, once and for all; and also appease legitimate concerns. The Opposition, on its part, would be wise not to press its unusual Parlia- mentary advantage too far. It must recognize that there is the national interest at stake here, and act accordingly. And with a 2026 deadline fast approaching: this has to happen, fast. 17 July 2011 After MaltaToday story, government with- draws draft legal notice to sanction illegali- ties THE government has backtracked from issuing a legal notice drafted by MEPA Chief Execu- tive Ian Stafrace, which would have enabled the Malta Environment and Planning Authority to sanction illegal developments on scheduled are- as like Natura 2000 sites if the applications were submitted before January 2011. While making it clear that no such legal notice will be issued, Parliamentary Secretary for Tourism, Culture and Tourism Mario De Marco is now saying that government never had any intention to reverse its zero tolerance against sanctioning illegalities on protected site, which he described as a "cornerstone" of government policy. It was MaltaToday which revealed MEPA's intention to publish the controversial legal notice in last Wednesday's edition. The draft legal notice, seen by MaltaToday, stated: "that the provisions of article 70 of the Environment and Development Planning Act, with regards to Schedule 6 of the Act, shall only apply to new applications submitted on or after 1st January 2011". This would have enabled MEPA to sanction illegal developments to legalise development on protected sites included in Schedule Six of the law. At present the MEPA law makes it clear that no development can be allowed on scheduled properties and does not mention any cut off date from when this law should apply. "In the circumstances, government has no intention of introducing any regulations that will change the effect of Article 70," a spokes- person for De Marco told MaltaToday when asked whether the proposed legal notice will be enacted. At no point did the government spokesper- son deny the existence of the draft legal notice mentioned by Malta Today. But the government spokesperson strongly denied that MEPA had the intention of chang- ing the law to make it easier to approve illegal buildings on scheduled sites. ... Quote of the Week "We have the wrong idea on what consti- tutes patriotism – that Malta belongs to the Maltese, and you have to look a certain way to be Maltese. It is the wrong way to look at it. To be Maltese means to be a mix of cultures." Maya Lucia, on Maltin Bħalek MaltaToday 10 years ago