Issue link: https://maltatoday.uberflip.com/i/1462882
IN Birdlife Malta v. Prime Min- ister et, the Civil Court, First Hall, concluded that once gen- eral licences were issued by the Wild Birds Regulation WBRU (WBRU) and that it was within its lawful powers to issue these licences in terms of the Conser- vation of Wild Birds Regulations there was nothing illegal in such action. The matter is not as straight- forward as there are other as- pects totally ignored in the court's judgment that should have had a determining bear- ing. The Environment Protection Act states that the competent minister is the minister re- sponsible for the environment. The Regulations establish the WBRU under the Environment Protection Act. The Regula- tions define the competent minister as the environment minister, and establish the WBRU within the environment ministry. On 20 January 2020 Clint Camilleri was appointed Min- ister for Gozo. On 27 January 2020, he confirmed in Parlia- ment that he was responsible for regulating hunting and trapping. On 29 January 2020, the Gozo Ministry issued a me- dia release to that effect. The constitutional issue was the WBRU's allocation by the Prime Minister to the Gozo Ministry. No Government Notice was published in The Malta Government Gazette announcing the ministerial allocation. Nor was the Envi- ronment Protection Act and/ or the Regulations amended to give effect thereto. So was the issue decided by the court simply one of Ad- ministrative Law? Were there other more fundamental legal issues that the court should have addressed ranging from the rule of law to governmental accountability, and from su- premacy of the Constitution to good governance? When a new administration assumes office and new assign- ment of ministerial portfolios are allocated, a government circular is issued instructing all government entities to report any changes needed to bring extant laws in line with the new ministerial duties. The En- vironment Protection Act and the Regulations should have thus been amended to state that the Gozo minister was the Unit's new competent minis- ter. This did not materialise and triggered serious constitu- tional and legal violations. 1. An assignment of ministe- rial duties may be made only by the President. No such assign- ment was made: it was never stated that the President had approved it. The Department of Information did not publish a Media Release to that effect. If an assignment was approved but not publicised, then the President was in breach of the Constitution. 2. The Constitution states that 'Nothing in this article shall empower the President to confer on any Minister au- thority to exercise any power or to discharge any duty that is conferred or imposed by this Constitution or any other law on any person or author- ity other than that Minister'. The President could not assign ministerial responsibility for the WBRU to the Gozo minis- ter once ordinary law provided for the Unit's allocation to the environment minister. 3. The Cabinet has 'the gen- eral direction and control of the Government of Malta'. It is up to Cabinet to ensure that no unconstitutional and illegal conduct takes place, at the very least in so far as decisions taken by itself or one member thereof (the PM), are concerned. The Constitution's disparaging is compounded by Cabinet fail- ing to uphold the rule of law, for once it approved expressly or tacitly the new ministerial assignment, then it violated the Constitution. If the PM only decided the assignment, then Cabinet failed subsequently thereto to rectify the constitu- tional breach brought about by the PM. 4. The Cabinet is 'collectively responsible therefor to Parlia- ment'. In the Gozo Ministry's press release, it is stated that the decision to assign the WB- RU to the Gozo Ministry was a government (either a Cabinet or a PM) decision: if it was a collective decision, then the Cabinet is collectively respon- sible to Parliament for breach- ing the Constitution. If not, it is the PM who is so responsible. 5. Once the Constitution is supreme, the PM cannot, under the same Constitution, assign ministerial duties contrary to the Constitution's provisions. 6. Parliament is bound to make laws for the good govern- ment of Malta. This require- ment applies also to the Exec- utive when making subsidiary laws under parliamentary del- egation. An administrative measure such as that of minis- terial responsibility allocation is an instrument having the force of law. Hence, as a sub- sidiary law, the PM has to make ministerial portfolio assign- ments that respect the prin- ciple of good government. To violate the Constitution and ordinary laws is not conducive to the PM upholding good gov- ernance. 7. Once the PM's ministeri- al portfolio allocation is made through an instrument having the force of law, such instru- ment cannot run counter to the Constitution so much so that, as a subsidiary law, it is open to challenge under section 116 of the Constitution. 8. If a minister is assigned 'responsibility for any busi- ness of the Government of Malta including the adminis- tration of any department of government' it has to respect any authority given to a min- ister to exercise any power or to discharge any duty that is conferred or imposed by any law, then whatever breaches such authority cannot be valid at law: what is constitution- ally null and void cannot be validated by a subsidiary law. Otherwise, it is the subsidiary law that prevails over the Con- stitution, not the obverse, and maltatoday | SUNDAY • 27 MARCH 2022 OPINION 12 Circumventing the Constitution and ordinary law The WBRU is in a situation of lawlessness: the Gozo Minister enjoys no power over the WBRU and is not answerable in the House for its actions. The environment minister is answerable for the WBRU's operations but it is not allocated to his ministry: quite a constitutional mess indeed! Prof. Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta Kevin Aquilina