ID - DRITT volume xxix
2019 Published by Għaqda Studenti tal-Liġi
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 2019 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 XIX 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: 978-99957-857-9-6
Preface Lara Attard President Għaqda Studenti tal-Liġi
ID - DRITT
A
nother year, another Id-Dritt.
Tradition and innovation are two pillar values which have been ingrained within Għaqda Studenti tal-Liġi’s Publications Office throughout our history and, through this, GħSL boasts a legacy unprecedented by any other organisation. The publication of the Id-Dritt has always been on the forefront of GħSL’s agenda throughout the years. This stems from the fact that GħSL, together with our contributors, recognises the academic value of such a publication. We have, over the years, continued to ascertain that the material published within the Id-Dritt has a value, both academic and legal in nature, useful to students and practitioners alike. Our organisation has unabatedly shown passion towards legal discourse and academic thought. Notwithstanding the anti-academic climate that’s currently prevalent in today’s modern discourse, which has even led to some organisations opting to reduce or withdraw their output, Id-Dritt XXIX is testament to GħSL’s unwavering faith and effort in this field, notwithstanding the challenges we face. I would like to thank GħSL’s Publications Officer Ms. Emma-Marie Sammut, as well as her Editorial Team, and our in-house designer Matthew Charles Zammit, who through their perseverance and dedication to the project, have successfully managed to compile and publish the twenty-ninth edition of the Id-Dritt. Good luck to all future generations of the Publications Office, and may we continue to celebrate the publication of Id-Dritt for years to come! Thank you, Lara
viii
Opening Address Emma Marie Sammut Publications Officer Għaqda Studenti tal-Liġi
ID - DRITT
On behalf of the GħSL Executive Board, the Publications Committee and the Id-Dritt Editorial Board, it is with great honour and privilege that I present to you Id-Dritt XXIX, the annual law journal published by the Malta Law Students’ Society. This law journal is, of course, the concerted effort of many people, ranging from; our contributors - who dedicated large swaths of their time to form and research their professional and educated points of view, which will now be forever immortalised within the pages of Id-Dritt; our editors - who shaped and formatted the content into a standard fitting of the prestigious Id-Dritt; our peer-reviewers - who pragmatically reviewed the intricacies of the content and provided professional and well-versed feedback; and lastly, to the GħSL Executive Board, without whose backing the compilation of this edition of Id-Dritt would not have come to fruition. Initially starting out in 1944, the project of going about publishing Id-Dritt was always seen as a highly-ambitious project, especially considering that it was a small handful of law students, with an amaranthine passion for the law, who came about the idea of compiling it. Through many trials and tribulations, the legal journal has now transformed itself into a quasi-customary obligation for Għaqda Studenti tal-Liġi; both because of its timely delivery year after year, and because of the notion of it being the product and detailed examination of external events, technological advancements and societal questions which are prevalent in our community.
Id-Dritt, along with its online sibling the GħSL Online Law Journal, nowadays abbreviated as the ‘OLJ’, are amongst the few mediums available which are accessible by students, academics and professionals in the legal field. The dissemination of legal knowledge, and appraisal, is perhaps more wide-spread now than in the past, encouraging fruitful and healthy academic discourse and wellresearched criticism, in a world often seemingly lacking of both. The world of academia, in Malta, is unfortunately somewhat x
VOLUME XXIX
dismissed and sidelined, and this can be felt in perhaps every strata of the legal society. It is often seen that the freshly graduated lawyers of today, heavily rely on previously researched material and, this sort of attitude breeds mediocrity. That is not to say, of course, that there are not hard-working individuals in the legal sphere doing their utmost to further the legal profession and its collective legal brain. With this, it is no secret that we have not all at some point fallen victim to mediocrity - myself included. Mediocrity however, gets stamped out by those who choose to work to eradicate it, and such is the function of Id-Dritt; from our committee members who are students themselves, and to the contributors who opt not to regurgitate material and think independently.
Id-Dritt combines the past and present, and imagines new legal worlds for the future. Rousseau, Voltaire, Montesquieu and Moore, who all contributed towards the thinking that constitutions hold the power to invent and create better worlds for us all through words. This is, in its entirety, Id-Dritt’s mission; the journal provides a platform to its authors, enabling them to envision new eras for the legal world. The Publications Office has survived lo-these many years thanks to the dedicated contributors who always have fresh and well-read input on the legal world today. Id-Dritt is a testament to the ever dynamic world of law. Every day, a new sector emerges; one which would yield new academics, new practitioners and new legislation, eager to be researched. With this, I would like to thank a large number of people who, without their effort and dedication, would have rendered the 29th Edition of Id-Dritt but a pipe-dream: To all the contributors and peer-reviewers: your collective efforts, which have exhibited a high-standard of academic calibre, have continued to elevate Id-Dritt’s reputation within the legal profession. On behalf of everyone at GħSL, we thank you for your contributions and we hope that we have given them the recognition xi
ID - DRITT
they deserve.
To Danielle, Diana, Carla, Chris, Cressida, Ethan, Elle, Justine, Lenka, Sean, Maria, Marie Claire, the Martinas, Maya, Michela, Raphäel, Stephanie and Steve: I could not have possibly asked for a better editorial team. Your dedication in ensuring that the finalisation of this project, as well as your unwavering loyalty and commitment, are qualities which are to be echoed throughout the ages. You have set the standard for the future of the publications committees. The future is bright for all you and with this, I wish you the very best, from the bottom of my heart. It’s been a pleasure, and no words can simply convey how grateful I am to all of you for the countless sleepless nights you have probably spent fixated on editing articles, and safeguarding the decade-long distinction that id-Dritt boasts.
To my direct predecessors, Matthew Charles and Ariane: living up to the standards that you had established for id-Dritt was indubitably always going to be a challenge. To this end, I couldn’t have finalised this compilation without your help and input, especially without you - Matthew Charles - who has spent countless hours editing and designing the final product. With two parents such as yourselves overseeing this vast project, there was no room for error, and one can only hope that this office has lived up to your standards. With this, I can only hope that my successor is just as fortunate as me - I had, undeniably, an excellent support-system. To Lara, Cynthia, Aidan, Nathaniel, Jessica, Aleandro, Raphael, Marc, Celine and Michela: my fellow executive board members. Without your support and input, id-Dritt would have not been the class act it is; not just presently, but even for years to come. To my parents, Gaetano and Dorothy, and to my loved ones: Thank you for always being there for me to listen to me rant. Thank you for always calming me down when I doubted myself on this project; and for helping me see reason when I was at my lowest. It is thanks to your love and patience that Id-Dritt has been published. xii
VOLUME XXIX
And finally, to you, dear reader: on behalf of everyone in the Publications Committee and the GħSL Executive Board, we extend our deepest gratitude towards your interest in this publication. We hope that this journal goes on to encourage and inspire you to read, analyse, critique and participate in such projects in the future, even if such endeavours seem inconceivable in nature. Here at GħSL, we believe that achievement is best garnered through great difficulty. Id-Dritt would have never been achieved without the blood, sweat and tears of many a collective. And with this, I shall conclude with a quote by Charles Darwin himself;
‘It is the long history of humankind (and animal kind, too) that those who learned to collaborate and improvise most effectively have prevailed.’
Thank you, Emma
xiii
Preamble Diana A. Ungureanu Editor-In-Chief Id-Dritt XXIX
ID - DRITT
T
he annual publication of Id-Dritt is a testament to the ever-changing legal landscape faced by students and legal practitioners alike - whether they choose to practice in Malta or abroad. It is also an indicator of the deep-seated sense of duty to inform and, educate, on the part of those who have garnered a degree of expertise in a given field of legal practice. This is why, for years on end, this peer reviewed law journal has proved itself to be an indispensable and reliable part of every law student’s toolbox. Indeed, many law students consider this publication as their first real exposure to the lesser known fields of legal practice and, thus, opening up a world of possibilities for their future careers as legal practitioners. With the rise of digitisation we have seen the emergence of new areas of legal practice such as block chain and crypto-currency. However, we have also witnessed technology changing the way in which more traditional areas of law operate and, the subsequent implications brought with it. In reality, this exposes legal practitioners to challenges which they could not have foreseen or trained for. In this context, technological advancement is an equalizer which puts law students and legal practitioners - with decades of experience - on equal footing, urging them to collaborate and contribute to the aquis of knowledge in these emerging areas of legal practice. This edition of Id-Dritt has proven the value of tackling legal topics that are not yet easily accessible as topics of research. In addition, it has also been a platform where this collaboration can take place first hand. On a different note, it is with pride that I commend the editorial board for their tireless commitment to this publication and for giving their time and energy to ensure that it maintains the high standard it has always adhered to. In addition to this, I would like to congratulate the editorial teams for consistently publishing articles in the Maltese language, and the contributors who choose to submit high quality content in xvi
VOLUME XXIX
Maltese. The importance of this practice becomes evident with the discomfort that sets in when one is faced with an academic work in any other language besides English. It is with a sense of hope that I encourage future contributors and editorial members to embrace this discomfort as there is a great deal to be gained from increasing the number of academic articles in the Maltese language. This will certainly contribute to the process of putting the Maltese language in a more prominent position in relation to academia and legal training. Finally, I must conclude by showing my appreciation and gratitude to the members of the Għaqda Studenti tal-Liġi Executive Board who have worked towards an incredible term. I owe a special thank you to the Publications Officer, Emma-Marie Sammut, for the challenging and unique experience of contributing to the publication of the 29th edition of Id-Dritt. I have come to realise that this is a publication which improves with time. Whilst the publication process remains unchanged, the challenges faced by the back office team will always vary. No amount of preparation and foresight can prepare someone to avoid and overcome these challenges seamlessly. Despite this, it is always the hope of any team that its successors will be better and aspire to bigger things. I draw this experience to an end knowing that future editorial boards will exceed all expectations, Many thanks, Diana
xvii
Foreword Professor Kevin Aquilina Dean Faculty of Laws
NOTES
I
t gives me pleasure to be able to write this Foreword to Id-Dritt, Volume XXIX (2019). This year, once again, the topics covered in this student peer-reviewed journal span over a plurality of branches of the law ranging from Public Law subjects (such as Constitutional Law, Administrative Law, Sports Law), to International Law subjects (such as European Union Law and International Space Law), and to Private Law subjects (such as Notarial Law and Financial Law). This variety of legal branches written upon in this annual publication ensures that a wide breadth of the law is covered so that the reader will surely find a paper which appeals to him/her interests. These myriad subjects also indicate how complicated and diversified the law has become. Indeed, the study of law no longer spans around the Codes and a handful of special laws as used to be the case in the past. In our day and age, the law has evolved from the traditional branches of Civil and Criminal Law to encompass new emerging branches such as those related to Animal Welfare Law, Fintech Law and Sports Law. Unfortunately, in Malta, there are very few legal journals where an academic, legal professional or student may publish. The Chamber of Advocates’ Law and Practice is one such journal. ELSA Malta used to publish their own journal – the ELSA Malta Review – but this was last published a few years ago and, at least to this writer, it remains unclear whether it has been discontinued. Hence, the avenues for publishing legal material in Malta tend to be sparse. Suffice it to state here that even the Faculty of Laws has ceased publishing its own Mediterranean Journal of Human Rights and the new journal which had replaced it – the Mediterranean Human Rights Review – is still in its infancy: only one issue has been published so far. In the dearth of legal periodical publications in Malta, Id-Dritt stands out conspicuously for it has managed to survive the onslaught of time and continued to be published intermittently over the years boasting of ground-breaking contributions by the best legal luminaries in Malta. I refer here, in this volume, for instance, to the papers by two Maltese judges on the European Court of Human Rights – Judge Giovanni Bonello and Judge Vincent De Gaetano – xx
NOTES
who have regaled us with two papers in the realm of Constitutional Law. Judge Bonello questions whether Civil Law still dominates over Constitutional Law – as was the position when the five Codes enjoyed superiority over the Constitution – whilst Judge De Gaetano reflects upon a traditional fundamental subject, though yet still very topical to date, of Constitutional Law – the rule of law. Needless to say, these two (and the other) papers in this collection are a valuable source of information and enrichment to the Law Student to whom this volume is after all addressed. Although the Għaqda Studenti tal-Liġi have their own website, where they also publish articles of legal significance online, they have – to date – not yet begun to publish Id-Dritt electronically, apart from the print form – the latter currently being the case. By publishing electronically, even if only on their website, they would make all these papers compiled in Id-Dritt available worldwide, especially to comparatists with a keen interest on the Maltese Legal System who would be able to access this wealth of material published in Id-Dritt, especially when one bears in mind that few and far between are those books that are published on such a system and which cover such a span of Maltese Law subjects as Id-Dritt effectively and laudably does. Hopefully, the day comes which Id-Dritt becomes more accessible in electronic format in this digital era of technology. I thank the Editors and Members of the Editorial Board of IdDritt as well as their contributors for all the good and hard work they are putting in during their free time to develop progressively and intermittently the study of Maltese Law making it more accessible to the law student, legal practitioner, the judiciary and society in general.
Professor Kevin Aquilina Dean, Faculty of Laws Msida, 11th April 2019
xxi
Editorial Board
Publications Officer Emma-Marie Sammut Editor-In-Chief Diana Ungureanu Editors Carla Farrugia Michela Pace Justine Xuereb Steve Vella Cressida Scorfna Maria Refalo Stephanie Camilleri Lenka Portelli Maya Spiteri Dalli Chris Vassallo Laferla Raphael Buttigieg Marie Claire Mizzi Martina Calafato Sean Portelli Danielle Gauci Martina Cassar
xxiii
Executive Board 2017 / 2018 Għaqda Studenti tal-Liġi (GħSL)
President
Lara Attard
Vice President for Educational Affairs
Cynthia Duncan
Vice President for Social Affairs Aidan Cutajar
Secretary General
Jessica Napier
Financial Controller
Nathaniel Falzon
Academic Officer
Raphael Sammut DeMarco
International Officer Aleandro Mifsud
Marketing Officer Michela Galea
Events Officer Marc Dimech
Policy Officer
Celine Cuschieri Debono
Publications Officer Emma-Marie Sammut
xxv
Contents
Volume 1
Administrative Law The notion of “public authority” in judicial review actions under Article 469A, Cap. 12
Dr. Tonio Borg
2
Animal Welfare Law Analysis of de facto & de jure Animal Zoos in Malta
Dr. Ariane Aquilina
16
Company Law The register of Beneficial Owners
Dr. Priscilla Mifsud Parker
63
Constitutional Law The right to a healthy environment as enshrined in our Constitution
84
The Rule of Law
96
Maltese citizenship: A historical perspective, from Independence to Present Day
119
Dr. Jose Herrera
Chief Justice Emeritus Vincent A. De Gaetano
Dr. Jean Philippe Chectuti
Criminal Law Il-ħelsien mill-arrest, u l- ‘house arrest’ Dr. Veronique Dalli
xxvii
147
The Inquiring Magistrate
157
Is “white collar crime” a crime? A critical analysis into the criminalisation of white collar crime
192
Judge Consuelo Scerri Herrera
Dr. Charles Mercieca
D evelopment Planning Law Determining a planning permission: From Act I of 1992, to Act III of 2016 Dr. Robert Musumeci
210
European Union Law The Malta Armed Forces Act, set against Maltese neutrality and developments within the European Union frameworks
248
How is the service of judicial and extrajudicial documents, in civil or commercial matters, done in Member States?
286
Dr. Mark Ellul
Judge Consuelo Scerri Herrera
Financial Law The Basel Accords, as a Transnational Regulatory Law Dr. George Bugeja
xxviii
306
Volume 2
Fintech Law Civil Law implications of Smart Contracts
339
The Virtual Financial Assets Regime regulating the future economy
360
Dr. Silvana Zammit
Dr. Cherise Abela Grech
Human Rights Law Detention of asylum seekers in Malta a study of Malta and Strasbourg Jurisprudence Dr. Carla Camilleri
386
The right to time? Unequal working hours, and the failure of gender equality policies and legislation
411
When Civil Law trumps the Constitutional Court
427
The impact of the judgements of the European Court of Human Rights on domestic legal systems
446
Professor Frances Camilleri Cassar
Dr. Giovanni Bonello
Dr. Kathleen Vella
I nternational Space Law Il-Liġi Spazjali: Il-Passat, il-Preżent u l-Futur
Dr. Eliza Borg Rizzo
xxix
465
L egislative Drafting and Statutory Interpretation Select principles of Maltese Law applied in legislative drafting and statutory interpretation
Professor Kevin Aquilina
488
Notarial Law The E-Notary: A study of the progress of electronic notarisation and registration in Europe
Dr. Chantelle Borg
524
Sports Law A legal overview of recent developments concerning match-fixing in Malta Dr. Robert Dingli
545
Utilities Law Reflections on the independence of utility regulators in Malta
Dr. Paul Edgar Micallef
xxx
566
Fintech Law