id-dritt Edition XXX Volume 2
2020 Published by Għaqda Studenti tal-Liġi
i
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: 978-9918-9506-2-1
iv
Preface Emma-Marie Sammut Vice-President Għaqda Studenti tal-Liġi
v
id-dritt
I
d-Dritt, year after year, has continued to live up to its status and name. It is an incredible feat in itself, to compile such a gargantuan of a book, brimming with seasoned legal thought and principle. The effort that goes into its pages is no easy task, and it is incredible that the Editorial Board and the Publications Office continue to build on the records set by previous years. I may be biased in my writing, being a former Publications Officer myself in 2019, but Id-Dritt is the backbone of the organisation and the COVID-19 pandemic will not snuff its blazing light this year. It has indubitably reached an important milestone and, for thirty-years, the partnership between students and legal professionals has flourished to a point that elicits a yearly expectation. The culmination of every edition is, of course, an accomplishment in and of itself, and I, myself, was more than humbled to be a contributor this year. This year’s, however, is somewhat a testament to the blood, sweat and tears of the Office’s predecessors. It is also a foundation of respect shown to its prominent legal experts - a foundation which not only fosters excellence, but acknowledges the expertise and diligence of Id-Dritt’s contributors. It is crucial that the eaxpectations Id-Dritt is subject to and its subsequent foundations are preserved. Not only does this year’s edition boast of a culmination of consistency, but it also reflects the spirit of the organisation as a whole. It is a record-breaking edition, for there has never been an Id-Dritt with more than thirty articles and, with such variety, that will surely crystallise it as the Publications Office’s greatest feat, yet. Unfortunately - nay, luckily future officers have this impressive benchmark to refer to. Anything less in future years would not be a defeat in itself, however, as it is always quality which triumphs over quantity, and this year, we are blessed with both. From commentaries and discussions on administrative law to animal law, and commercial law to development and planning legislation, amongst other worthwhile reads such as technology, environmental and press law, and many more, this year’s variety offers an exercise in broadening horizons. Needless to say, Id-Dritt has come a long way and deserves its prestige. I am proud of how far this Office has come throughout the years. I am proud of the variety enshrined in both volumes this year. I am proud of the vi
Volume II
individuals who, through their dedication and earnestness, produced such a memorable edition. Consistency is key, but so is dedication and hard work. And, to the future of the Publications Office, an important principle to live by is perhaps Winston Churchill’s: ‘Continuous effort – not strength or intelligence – is the key to unlocking our potential.’ Intelligence without diligence is nothing but a skeleton that could have supported great potential. On this note, I must say that it has been my pleasure to write this preface. It is always a pleasure to be part of such unbelievable triumphs. Well done, once again, to the Publications Office and its Editorial Board. Thank you for your loyalty to the project and for your respect to the book itself. Ad multos annos, Id-Dritt!
Emma-Marie Sammut
vii
viii
Opening Address Maria Refalo
Editor-In-Chief Id-Dritt XXX
ix
id-dritt
T
his year marks the Commemorative 30th Edition of the Id-Dritt legal journal, which has been published since 1944. Id-Dritt is a peer-reviewed journal penned by professionals in the legal field, not only for law students, but also to the general public. The past Id-Dritt editions provide a multitude of legal topics, and this year’s edition is no exception. In this year’s commemorative edition, the Publications Committee compiled a number of articles on a variety of topics, including public law, constitutional law, criminal law, financial law, and tax law. Journals like Id-Dritt portray the importance of sharing knowledge of the legal expertise. Whilst Id-Dritt may prove to be beneficial to law students and legal professionals alike in order to expand their knowledge on various topics, Id-Dritt is also beneficial to the general public. It is important to stress the knowledge of legal subjects not only to those practising within the legal field, but also to those persons who seek to act righteously in society, and those who are seeking a remedy to a legal issue that has arisen in the past, or is likely to arise in the future. Hence, the collection of Id-Dritt would definitely be an asset in every library, consisting of various current legal topics. My journey with GħSL started on my first day at the University of Malta Freshers Week as a first-year law student. I was looking forward to joining a student organisation that would not only help me establish connections with fellow law students, but also help me achieve insight on various legal developments. In my second year at the University of Malta, I joined the Legal Aid Committee, and since my third year, I formed part of the Publications Committee. In March 2019, I was approached by this year’s Publications Officer, Justine Xuereb, to see whether I was interested in being this year’s Editor-in-Chief, which I gladly accepted. This role consisted in communicating directly with the contributors and peer-reviewers of the journal. I remember my first meeting as part of the Publications Committee back in 2017, where the process of publication of the Journal was explained to the editors within the Committee. I remember feeling welcome within a group of ambitious students who all enjoyed working with the sole aim of sharing their knowledge with others. My experience as part of the Publications x
Volume II
Committee was very positive and I truly encourage law students to join GħSL throughout their law course. I would firstly like to thank the Publications Officer, Justine Xuereb, for giving me the opportunity to be this year’s Editor-in-Chief. Her dedication is truly reflected in this year’s edition of Id-Dritt. Secondly, I would like to thank the editors of the Publications Committee for all their hard work and dedication to make this edition possible. Finally, I would like to extend my thanks to all contributors and peerreviewers whose contribution was paramount to the publication of this edition of Id-Dritt.
Maria Refalo
xi
xii
Foreword Natalino Caruana De Brincat
Lecturer, Public Law Faculty of Laws
xiii
id-dritt
I
t gives me great pleasure to accept the invitation extended to me by the Editorial Board of Id-Dritt to prepare the foreword to the commemorative XXX Edition of the journal. As a student and subsequently as both legal practitioner and lately a member of the academic team within the Faculty of Laws, I always keenly read and refer to the well-researched academic contributions in the past editions and consider that such are to be valued when considering that locally, publications of such academic level related to legal matters are quite limited. The legal profession is one of the most noble professions. If one had to make a comparison between the medical profession and the legal profession, it will transpire that both deal with a body. The former aims at the well being of the biological body, whilst the latter aims at the good order of the body within society. In a country like Malta, where the Rule of Law is paramount and ingrained in its roots, lawyers are a vital contribution to the fully functional body of the State, that is, Democracy in its own magnificence, this when considering that Parliament should be the body which promotes laws, however it is the judicial body which guarantees that such laws are properly interpreted. Such interpretation is usually founded on the legal knowledge and illustrations of the vivid legal mind of the Judge, who in turn was a legal practitioner and a student reading law, possibly also a past contributor to this journal. The legal profession evolved, likewise in other countries: the traditional lawyer based on court-room day in day out reality changed, having several practitioners shifting their direction towards other sectors and branches of the profession, where the role of the lawyer might sometimes be perceived to be more that of a consultant rather than as the voice of his clients in court. Nevertheless, whatever the specialisation within the legal profession a lawyer might be inclined towards, one must always maintain at all times the highest professional and ethical standards. The latter shall be the compass used for a graduate lawyer so that one is perceived fortiter in re, suaviter in modo. In my humble opinion, a good lawyer will always remain a law student throughout his professional progression, whether being a junior lawyer, xiv
Volume II
senior lawyer, lecturer or a member of the Bench, because one would have to keep up to date researching legal matters, reading judgments on a daily basis and checking changes to the various laws. Unfortunately, one area of the Profession which is lacking is legal research and publication namely due to other commitments, time constraints and lack of resources in general. Generally speaking, lawyers find themselves extremely challenged by stiff deadlines and other professional commitments, which makes it virtually a sacrifice, to steal some time away from their loved ones, for them to publish articles or monographs. This stark reality makes Id-Dritt even more of a milestone towards the continuous development of any legal professional, for including an array of legal topics, and serving as a point of reference. GħSL should be considered as not merely a body of Law Students, but also a vibrant entity which through its dedication is directly contributing towards the development of our profession. I congratulate the entire GħSL Committee, past and present members, especially those involved in this year’s Editorial Board for their commitment, dedication and for successfully producing yet another edition of such a unique journal.
Natalino Caruana De Brincat B.A. (Hons), LL.B, Dip Notary Public (Melit), Dip Infosys, MBA (Leics), LL.D (Melit)
xv
xvi
Editorial Board Id-Dritt XXX
xvii
id-dritt
Justine Xuereb
Publications Officer
Maria Refalo
Editor-In-Chief
xviii
Volume II
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
xix
xx
Executive Board Għaqda Studenti tal-Liġi
2019/2020
xxi
id-dritt
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
xxii
Volume I
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
xxvii
xxiv
Contents
xxv
id-dritt
International Criminal Law Kathleen Vella
3
Prosecuting ISIS for committing crimes against humanity and genocide against the Yazidis: The implications and limitations under International Law
Roberta Spiteri
23
Auctores Intellectuales: A critical analysis of ICC jurisprudence on the concept of coperpetration
Andrea Zammit
53
ll valore risocializzante della pena detentiva sottolineato dalla sentenza torreggiani e l’art. 27(3) cost
Legal History Mark. A. Sammut
81
Amabile Bonello’s essay on the Public law of Malta
Andrea Zammit
113
Pro-Italianism, treason and conspiracy in wartime Malta - A judicial inquiry into deportation and capital punishment as imperial deterrents
Maritime Law Kevin Dingli
141
Legal implications arising from the decision of the Maltese Court of Appeal regarding the Bright Star (ex Trading Fabrizia) case xxvi
Volume II
Police Law Peter Paul Zammit
157
The Police Commissioner: An unregulated officer of the law?
Press Law Kevin Aquilina
169
An evaluation of the diritto di cronaca under the Maltese Press Act
Private International Law Therese Lia
187
A comparison of the Hague Convention, and the Recast Regulation
Research Methods 207
Frances Camilleri-Cassar ‘Originality’ is of utmost importance in academic writing: What counts as original?
xxvii
id-dritt
Succession Law Carmelo Gafà Daniele Gafà
227
The Merits or otherwise, of the selection of “the last habitual residence of the deceased as the Principal Connecting Factor in the EU Succession Regulation (EU) – No. 650/2012
Taxation Law Shu-Chien Chen
241
Towards a neutral corporate tax for the transportation industry – Rethinking the transportation industry formula of the Common Consolidated Corporate Tax Base Directive Proposal under EU law
Sean Portelli
283
The scope of the ‘pure’ VAT exemptions and their interpretation by the CJEU, with particular reference to the services referred to in Article 135(1)(g) of Directive 2006/112 EC as well as the provisions’ transposition into Maltese law
Technology Law Julian Bajada
292
Pacta Sunt Servanda and smart contracts Is code law?
xxviii
Volume II
Marc Dimech
321
How could Distributed Ledger Technology and Smart Contracts bring about a paradigm shift in consumer rights legislation?
xxix