id-dritt Edition XXX Volume 1
2020 Published by Għaqda Studenti tal-Liġi
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Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society. Correspondence in relation to this publication should be forwarded to: The Publications Officer / Editor-In Chief, Id-Dritt Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@għsl.org © Għaqda Studenti tal-Liġi 2020 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher. Proofreading and editing done by the Editorial Board and the Publications Office. Some articles have been modified for reasons of clarity and/or uniformity. Opinions expressed in Id-Dritt Volume XXX do not necessarily represent the views of the Editorial Board, the Publications Office, the Publications Officer, or Għaqda Studenti tal-Liġi. Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit ISBN no: 978-9918-9506-1-4
Preface Celine Cuschieri Debono President Għaqda Studenti tal-Liġi
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his Id-Dritt, being the thirtieth edition, is a special one for our organisation. It is a testament to the organisation’s commitment to be at the forefront of legal discussion in a variety of legal fields. This is the legacy that the Għaqda Studenti tal-Liġi’s Publications Office upholds year after year. Throughout the history of this prestigious publication, GħSL has strived to publish academic writing of the highest quality by ensuring that while the high standards of the publication are upheld, the content of the publication is pertinent to contemporary discussion. Indeed, through a brief glimpse at the table of contents, one may immediately note that whilst traditional aspects of the legal sphere have been referred to, other lesser known areas of law are also featured. This is the beauty of Id-Dritt, as it is open to all academics, professionals, or even students themselves, allowing them a forum upon which to discuss areas of interest, whilst sharing their views and knowledge with any other person wishing to learn more about the law. Id-Dritt XXX is no exception. It is my pleasure and honour to present this year’s thirtieth edition which features thirty-one different articles from legal professionals from different fields and a discussion of twenty-one different topics. I would like to thank and congratulate GħSL’s Publications Officer, Justine Xuereb, and her Editorial Team, as well as the organisation’s Public Relations Officer, Matthew Charles Zammit, for designing the publication. Wishing the very best of luck to the persons who will be entrusted with the Publications Office in the future so that the organisation may continue to spearhead academic discussion through this publication.
Celine Cuschieri Debono
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Opening Address Justine Xuereb
Publications Officer Għaqda Studenti tal-Liġi
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n behalf of the GħSL Executive Board, the Publications Committee and its Editorial Board, it is with great honour and pride that I present IdDritt XXX, the commemorative 30th edition of this prestigious legal journal, published annually by the Malta Law Students’ Society. This legal journal has definitely come far since its somewhat humble beginnings in 1944. The hard work and ambition of small number of law students with a passion for legal knowledge has evolved into one of the most sought-after and prestigious legal journals on the island. Such status has been achieved as a result of several factors, most notably, the opportunity it provides for established legal professionals, academic authors as well as students themselves to make known their interests in the legal sphere and contribute their own take on a variety of topics. This is not to say that Id-Dritt has not had its own obstacles to overcome. It is in spite of the challenges posed by time and circumstance that this legal journal has thrived and prospered and continued to provide anyone with an interest in law with a forum in which one may examine prevalent legal questions and issues. New editions of this publication are now released on an annual basis through the combined efforts of both professionals able to contribute a plethora of legal expertise, as well as law students passionate enough to aid in the continuous development of legal knowledge in accompaniment to the various global developments in all facets of life. Unfortunately, the circumstances presented by COVID-19 today prevent us from celebrating this landmark edition in the manner which truly befits the occasion. However, one must not be deterred from putting out the best product possible, and even the most challenging of times present an opportunity for evolution and development. Thus, this edition will be the first of its kind to be published as an eBook, thereby continuing GħSL’s proud tradition of producing annual editions of Id-Dritt, whilst also making the publication more easily accessible to interested parties. This publication marks the 30th edition of this legal journal, thus being a landmark for all involved, throughout both the past and the present. Knowing this, the main goal for this term’s Publications Office was to make this edition a memorable one, befitting the stature and prestige this publication has come to enjoy throughout the years. We were delighted with the overwhelming x
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response received from legal professionals, academics and students, with such response not being domestically limited. As a result of the hard work of all parties involved, this edition boasts a record-breaking thirty-one articles, and has been divided into two volumes, which is a first for the journal. The table of contents to follow further exhibits the variety of responses received to our call for submissions over the term, with twenty-one specialised fields of the legal sphere being delved into overall. Such fields range from the traditional, such as constitutional, criminal and corporate law, to ones which exhibit the law’s concurrent development with other sectors, such as technology law. That being said, these examples in themselves do not begin to describe the vast array of legal knowledge on display in this publication. I would like to thank all contributors for taking the time to contribute to this year’s edition and helping our vision for this commemorative publication come to fruition. It is through your expertise and the sharing of your knowledge in your respective fields that students and other professionals alike may be inspired and reinvigorated to continue to expand their understanding of the law and the principles that reinforce it. I thank you for allowing us to endorse your work, and for helping us maintain the high standard that this publication has now become accustomed to. To the Editorial Board, Cressida, Danielle, David, Ethan, Evgeny, Josela, Jurgen, Lenka, Maria, Marie, the Martinas, Raphael, Sarah, Shelby and Stephanie. I can assure you that the publication of this edition would not have been possible without each and every one of you. Thank you for your great effort and unwavering commitment in ensuring that the final product is of the highest quality. It has been a true pleasure working with all of you, and I can only hope that future committees will emulate your work ethic and willingness to help whenever needed. To Maria, the Editor-In-Chief. Thank you for always being on hand to help in every aspect of this publication. I could not have asked for a better partner in overseeing the finalisation of this product. It has been a privilege working side-by-side with you, and one can only hope that future Editors-In-Chief are as helpful and diligent as yourself. To my direct predecessors, Emma, Matthew Charles and Ariane. You xi
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were the support system that helped me understand the status Id-Dritt enjoys to begin with. Thank you for your patience and guidance; your influence over this publication lives on even following the end of your respective terms in this Office. Special thanks goes to Matthew Charles, who was once again on hand to provide all that was needed in terms of the design of the final product. I truly hope that my successor finds comfort in having the same support system to rely on as I did. To my fellow GħSL Executive Board Members, Celine, Emma, Sean, Matthew Charles, Graziella, Ylenia, Clive, Maya, Michela, Mariah, Martina and Valentina. Thank you for all the help and support you have provided me with throughout this term. To my parents and loved ones. Your patience truly knows no bounds. I could not be more appreciative of all you have done for me throughout the past year. Even the smallest gestures have a special meaning to me. Your endless support has instilled in me the drive and determination to see IdDritt XXX published, and I cannot thank you enough for your integral role in this. And last but not least, to you, dear reader. You are the driving force and the reason behind our annual goal of releasing new editions of this prestigious publication. On behalf of GħSL, I would like to thank you for your interest in Id-Dritt, and hope that this edition’s contents inspire and encourage you to further your legal interests, and perhaps even contribute to future editions. The contributions featured both in this edition as well as the others preceding it are a legacy in themselves. The purpose of a legacy is to leave behind inspiration for others upon which to base their own expeditions and triumphs. This being said, I conclude with a quote by Albert Einstein: ‘Never regard study as a duty but as an enviable opportunity to learn to know the liberating influence of beauty in the realm of the spirit for your own personal joy and to the profit of the community to which your later works belong.’ Thank you,
Justine Xuereb xii
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Foreword Ivan Mifsud
Dean Head of Department, Public Law Faculty of Laws
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hen I was asked to write a foreword for Id-Dritt, I accepted without hesitation. My policy at the Faculty of Laws has always been to help the students in any way possible, and this time is no exception. As part of my preparation, I leafed through the forewords to some past editions of Id-Dritt; amongst the ones I read was the one penned by Her Excellency President Marie Louise Coleiro Preca for Edition XXV. On that occasion she commended GħSL, but also rebuked us, the academics, for not producing a law journal, leaving Id-Dritt as the only academic legal journal published in Malta. Her Excellency undoubtedly has a point, because the Faculty of Laws does not have its own, official academic journal (the Human Rights’ Platform e-journal in my opinion does not qualify as a Faculty of Laws’ official journal because the Human Rights Platform is led by the Faculty of Laws, but is a multi-faculty initiative; therefore its journal cannot qualify as our Faculty of Laws’ journal). I will not mince words: the Faculty of Laws should have its own journal. If just one member from each and every department within the Faculty of Laws contributed an article every year, we would have nine articles as a minimum. It sounds relatively simple, and is certainly doable, leaving plenty of time for other work including contributing to Id-Dritt; after all I would not like to create one law journal and at the same time impoverish another existing, highly respectable one. Yet, without sounding defeatist, I openly and publicly state that I am reluctant to suggest this plan to my colleagues, let alone move towards implementing it. Unfortunately, the Faculty of Laws has found itself at a cross-road, only made worse by COVID-19. The University of Malta policy has for many years opened its doors to as many students as possible, the result being that the intake in October 2019 for LL.B was 217, up from 205 the previous October, which was up from the previous year too; the trend is for numbers of new intakes to grow annually, without fail. It goes without saying that each and every student is welcome and deserves an opportunity to follow their dreams and embark on the career of their choice, but this puts an enormous strain on our human resources (both administrative and academic). We have made numerous pleas for increases in staff, but the trend seems to be for people to leave and not be replaced. Some simply find working at the Faculty of Laws too hectic, others leave to advance their personal lot xvi
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elsewhere, yet others reach retirement age and either leave or remain on as part-timers (still contributing, but on a reduced basis). Sometimes, calls for applications are issued and nobody even applies, because (at least until COVID-19) there were so many seemingly more attractive opportunities available; on other occasions, the University of Malta simply did not issue the calls for applications despite our continuous requests to firstly replace staff, and secondly, to increase staff in order for us to be able to cope better, and to not merely improve, but also increase the services we offer. The end result is that staff (administrative and academic collectively) are shrinking, while numbers of students are increasing. I am not exaggerating when I write that the staff work wonders, way beyond their call of duty, as things are and definitely out of a sense of duty and love for the Faculty, for the Profession, for Academia and for our Students. For this I publicly and unreservedly express my gratitude to all the staff within the Faculty of Laws, whether administrative or academic, whether full-time or part-time, or casual contributors. However, unfortunately, we have reached a stage where if we are to not only retain current standards, but even raise them, something has to give. Certain decisions have already been taken; for example, a decision was taken not to hold vivas for the LLB 4th year students, who are now required to merely hand in their dissertation and wait for their grade. This was a much regretted decision, however organising and actually holding the vivas simply took too much out of our human resources to justify the end. I am aware that most students enjoyed the opportunity to meet us and discuss the work which they took so much pride in producing, and I for one enjoyed meeting the students too, but it took too much out of our human resources to justify repeating in 2020 and beyond. COVID-19 aside, when we took this decision in late 2019, we had no idea that a few months’ later we would be living in fear of contamination from a previously unheard of and still little-known virus, lecturing online via VLE and discussing how to hold end of semester and end of year assessments this year. The decision not to hold vivas for the LL.B. 4s was aimed at conserving our meagre resources. Regretfully, we do not exclude having to take other measures as numbers of students increase, if our human resources do not increase likewise. The bare truth is that I am expecting intake to increase exponentially the coming academic year, with A’levels currently slated for xvii
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September 2020 and students being allowed to start University before they have their results in hand, and before the ones who do not make it sit for their resits and obtain their results. It seems that these are to be allowed to join the course of their choice on a provisional basis; the effect of this on the number of LL.B first years remains to be seen. As always, every single student is welcome, my only demand being that they take their studies seriously, but the effect of the annual increase in intake when the number of lectures and the number of administrative members of staff has not increased and in actual fact has decreased, is not something anybody involved in the runnng of the Faculty of Laws is looking forward to because we are expecting large, unmanageable numbers of students in the first year of the course, the likes of which we have never experienced before. Under the above circumstances, and until the Faculty of Laws is given the resources it so desperately needs, the Faculty of Laws’ official journal like many other ideas we have, will have to wait. In the meantime of course, with the Law being what it is, dynamic and continuously changing, everybody is encouraged to continue to research and to publish, and thankfully this is happening if not as much as I for one would like it to. When I was a student back in the 1990s, I could hardly recall a single local lawbook, and we as students used to buy back editions of Id-Dritt, which was not in publication either and GħSL back in the day was only selling remaining stock of past editions. The situation is very much improved now in terms of publications, with plenty more in the pipeline. Id-Dritt is also in its thirtieth issue, and may I add, what a bumper issue it is, with thirty-one articles covering an array of subjects, penned not only by students but also by professionals, academics and members of the judiciary. The research is alive and well, the contribution to knowledge is real and actual, thanks not only to those who contribute articles but also to those students who in their own personal time work extremely hard to put it all together and bring Id-Dritt to fruition, year after year. Long may this not only continue, but also flourish yet further.
Ivan Mifsud
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Editorial Board Id-Dritt XXX
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Justine Xuereb
Publications Officer
Maria Refalo
Editor-In-Chief
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Cressida Scorfna Danielle Gauci David Chetcuti Dimech Ethan Brincat Evgeny Caruana Jessica Spiteri Josela Psaila Spiteri Jurgen Micallef Lenka Portelli Maria Farrugia Marie Claire Mizzi Martina Calafato Martina Cassar Matthew Camilleri Paula Briffa Raphael Butigieg Sarah Mifsud Shelby Aquilina Stephanie Camilleri Editors
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Executive Board Għaqda Studenti tal-Liġi
2019/2020
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Celine Cuschieri Debono President
Emma-Marie Sammut Vice-President
Marc Dimech
Secretary General
Sean Portelli
Financial Officer
Matthew Charles Zammit
Public Relations Officer
Graziella Schembri
Academic Officer
Shelby Aquilina
Conferences Officer
Michela Galea Seychell
External Relations Officer
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Ylenia Busuttil
International Officer
Clive Aquilina
Leisure Officer
Martina Darmanin
Marketing Officer
Maya Spiteri Dalli
Policy Officer
Mariah Micallef
Projects Officer
Justine Xuereb
Publications Officer
Valentina Cassar
Resources Officer
Sarah Mifsud
Board Member
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Contents
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Administrative Law 3 Kevin Aquilina Legislative recourse to Public Administration Law offences barking up the wrong tree?
Tonio Borg
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The perils of positivist thinking in Public Law
Animal Welfare Law Ariane Aquilina
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Five Freedoms, Five Domains: An analysis of the implementation, or lack thereof, of the Five Freedoms and the Five Domains in the Maltese Animal Welfare Act
Competition and Consumer Law Paul Edgar Micallef
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Act XVI of 2019 - A Missed Opportunity to improve Market Regulation in Malta?
Corporate Law Ryan Dalli
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The liquidator: A straightforward job or a gateway to personal liability?
Luke Mizzi Emma-Marie Sammut
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Can directors and shareholders be held liable for acts committed by the company? xxx
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Constitutional Law Giovanni Bonello 143 21st February 2019 – Black Thursday for the Constitutional Court
Criminal Law Consuelo Scerri Herrera
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Confessions in a Court of Law
Charles Mercieca
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Prosecuting and defending White-Collar Crime
Jessica-Ann Spiteri 209 Dissertation summary of the constitutive elements of the crime of forced marriage punishable under Article 251G of the Criminal Code
Development and Planning Legisation Robert Musumeci
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Planning legislation in Malta - A brief historical overview
Employment Law Krista Ellul
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Employment, and the Gig Economy
Frances Camilleri-Cassar 257 Leave policies and legislation in Malta: How gender equal?
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Environmental Law Nathaniel Falzon
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Conserving our natural environment and sustainability: a legal rendition
Ethan Brincat
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The right to a healthy environment in the Constitution of Malta: Abstract of ‘The Second Republic - A Green One”
Intellectual Property Law Maria Chetcuti-Cauchi
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Malta’s new Trademark Act, and trade secret laws 2019
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Administrative Law
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