Id-Dritt Volume XXV
2015 Published by Għaqda Studenti tal-Liġi
Produced and published by Għaqda Studenti tal-Liġi (GħSL); the University of Malta Law Students’ Society. Correspondence in relation to this publication should be forwarded to: The Editor Room 219, GħSL Office, Faculty of Laws, University of Malta, Msida, Malta E-mail: editor@ghsl.org © Għaqda Studenti tal-Liġi 2015 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. Some articles have been modified for reasons of clarity and/ or uniformity.
Opinions expressed in Id-Dritt Volume XXV do not necessarily represent the views of the Editorial Board or of Għaqda Studenti tal-Liġi.
Printed in Malta by Progress Press Co. Ltd, Żona Industrijali, Triq l-Intornjatur, Mrieħel, BKR 3000, Malta
Cover Design by Neil Darmanin
978-99957-857-1-0
In Loving Memory of Matthew Meilak
Id-Dritt Volume XXV Editorial Board 2014/ 2015
Editor-in-Chief Luana Bezzina
Editors Ariane Aquilina Vanessa Gatt Michelle Grech Julian Vella
Publications Officer Gaynor Saliba
Għaqda Studenti tal-Liġi Executive Board 2014/ 2015
Francesco Refalo
President
Dirk Urpani
Secretary General
Patrick Gatt
Financial Officer
Rebecca Mercieca
Public Relations Officer
Joshua Chircop
Academic Officer
Gaynor Saliba
Publications Officer
Jacob Portelli
Events Officer
Rebecca Cassar
External Relations Officer
Pier Luca Bencini
International Officer
Luisa Cassar Pullicino
Thesis Librarian
Charles Mercieca
Gozo Relations Officer
Kelton Mizzi
IT Officer
GĦSL PUBLICATIONS OFFICER ADDRESS
by Gaynor Saliba LL.B., Dip. Not. Pub (melit)
It is with immense pleasure and great honour that I present the twenty-fifth volume of Id-Dritt, an acclaimed law journal that has graced our bookshelves since 1947. At the time, a group of avant-garde law students from the Royal University of Malta formed the Law Student’s Society and published the first journal of its kind on the island, entitled The Law Journal. Since then the journal has naturally undergone various changes (including that of its name in 1971), at times risking of becoming obsolete, yet in the last six years the journal has kept its annual appointment. As Publications Officer, upon the realisation that the 25 th Volume was due, I wanted this edition to be special. My ideas were welcomed by the Executive Board and created a small committee to discuss what the anniversary edition should include. Ultimately we decided that as celebration to the 25th edition, not only should we publish the Commemorative Edition but also the annual edition containing new articles on contemporary subjects. This edition thus, features a total of twenty-three articles ranging from Intellectual Property to Criminal Law, from iGaming to Notarial Legislation, and from Constitutional to Private International Law. Moreover, following the recent tragic accident, GħSL deemed it apt to dedicate this edition to Matthew Meilak, a brave fellow colleague that has left this world to a better life at the beginning of the year – may his soul rest in eternal peace! I equate my three-year journey within Għaqda Studenti talLiġi, to the infamous phrase ‘united we stand, divided we fall’. Inexperienced as I was upon my appointment, I soon came to realise that the publication of a law journal entailed the combined effort of a group of committed law students and legal professionals. The particularity of Id-Dritt presupposes that a number of articles be written by different legal professionals on different topics, thus creating a hybridity between traditional and modern subjects into
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one journal. In this regard, I would like to pay tribute to all authors who throughout the years have contributed to this prestigious publication, thus aiding the organisation in keeping its frequent appointment with its avid readers. On behalf of GħSL, I profoundly thank Professor Kevin Aquilina, Dean of the Faculty of Laws, for the numerous times I have knocked on his door to seek advice. Not only was he instrumental in helping us ensure that the journal’s entries were original by subjecting them to the plagiarism detection software, but assisted the Editorial Board in drafting a set of stringent guidelines which a peer-reviewed journal merits. In this sense, I would also like to express my gratitude towards the network of peer reviewers who ensured that the contributions in this journal are legally correct, thus ensuring the prestigious reputation of the journal. I would also like to thank the committed group of individuals forming GħSL’s Executive Board for their constant support throughout the publication process. I am particularly indebted to Francesco Refalo and Dirk Urpani, respectively President and Secretary General of the University of Malta Law Students’ Society, for their constant encouragement and assistance in the past two years. I extend my sincere gratitude to a devoted team of editors, composed of Ariane Aquilina, Michelle Grech, Vanessa Gatt and Julian Vella, who ensured consistency throughout the journal. Lastly, I would like to wholeheartedly express my profound gratitude to the dedicated individual who acted as my companion and mentor throughout this exciting journey; Ms Luana Bezzina, Editor-in-Chief to this publication. Not only has she lead the whole team with great professionalism, but has worked tirelessly by my side to fulfil a distant dream which we both had – to see the twentyfifth edition come to print. Id-Dritt Volume XXV marks the end of my term within Għaqda Studenti tal-Liġi. I sincerely hope that in the past three years, I have in my little repaid the organisation that has transformed a shy and somewhat lethargic student to a more complete individual (and hopefully professional!). While naturally encouraging law students to take an active role within the organisation, I augur that future GħSL Executive Boards preserve the prominence and prestige that the organisation, and above all Id-Dritt has managed to re-gain x
in the past years. I humbly feel honoured to have formed part of the organisation that has been active within university for almost seven decades. Ad multos annos GħSL!
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EDITORIAL NOTE
by Luana Bezzina LL.B., Dip. Not. Pub (melit)
As Editor-in-Chief of this publication, it is with great pleasure that I present the 25th Volume of Id-Dritt. This edition features a total of 23 articles addressing topics such as Domestic Violence, the Attribution of Responsibility in aircraft tragedies, the Right to be Forgotten, and Medical Consent. In keeping with the system set out in the 24th edition, this year’s publication endeavours to present its readers with a scrupulous equilibrium of contributions dwelling on the more traditional concepts embedded in our corpus juris and other contributions underscoring concepts or aspects pertaining to more contemporary specialisations, including IT Law, Gaming Law and Tax Law. Continuing on the foundations laid out last year, the editorial board overseeing the publication of the 25 th Volume was conferred with a similar mandate, to that conferred to last year’s editorial board. Following an unprecedented response from readers, the GħSL executive once again entrusted the editorial board to identify the thematics it desired to feature in this important edition. The foremost aim of all editorial boards, since the genesis of this publication, was to publish articles of direct relevance to the law student and the legal professional alike. Thus, once again the editorial board engaged in an exercise to identify subjects or topics which it thought merited inclusion in this year’s volume. Notwithstanding the emphasis on the importance of student activism, many are those who regard student-edited journals with scorn. The editorial board is mindful that review mechanisms are indispensable for any prestigious journal and more so when such journals are student-edited journals. Thus, the editorial board has once again sought to strengthen review thresholds. After exhaustive consultation with Professor Aquilina, Dean of the Faculty of Laws, and Professor Simone Borg, Deputy Dean of the Faculty of Laws, the Editorial Board has devised a set of guidelines for its peer reviewers, aimed at ensuring uniformity and consistency in the xiii
review of all contributions. All submissions were subjected to the Faculty’s plagiarism detection software and subsequently peer reviewed. I take the opportunity to express my gratitude to Id-Dritt’s network of peer reviewers for their time and assistance during the review process. Their expertise has undoubtedly ensured the retention of the prestige which this publication has always sought to achieve. The Editorial Board thanks Professor Kevin Aquilina, who for the second consecutive year aided us in coordinating this process. I augur that future Editorial Boards persist in further strengthening this mechanism of review with the assistance of the Faculty of Laws, and ensuring that the standing which Id-Dritt has secured throughout the years continues to flourish. Despite the introduction of more stringent review thresholds, the editorial board strove to include a good number of contributions which cover substantial aspects of an ever broader legal spectrum. The editorial board is honoured to announce that despite Id-Dritt’s rigorous review mechanism, this volume has surpassed all previous editions with regards to the number of submissions. The 25 th Volume includes contributions by young undergraduates, junior lawyers, practitioners, academics, and members of the judiciary. A number of contributions also feature a collaborative enterprise between professionals in the legal sector and law students. Such collaborations are undoubtedly encouraging for the student body. Moreover, such collaborative efforts permit the student to further ameliorate research and writing skills while under the supervision of professionals. On behalf of all law students, I thank legal professionals who invest their time in training us students. The editorial board augurs that such collaborations will be encouraged by successive GħSL executives. A look at the list of contents of this volume reveals a number of articles penned from an inter-disciplinary perspective, including inter alia, law and gender, the law and medical practice, law and finance. Such contributions underscore the fusion of law with other disciplines. Nowadays it is inevitable that law suffuses all these different branches. Moreover, such contributions further accentuate the inherent dynamic nature of law, and further underscores the distancing from the traditional notion of law as a self-contained discipline.
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The Editorial Board expresses its gratitude to Her Excellency President of Malta Marie Louise Coleiro Preca, who has been so kind as to accept our invitation to pen the Foreword to this edition, and Mr Justice Lawrence Mintoff, whose contribution, in the Maltese language, graces the back-cover of this volume. I would also like to thank the committed team of editors whom I was very lucky to have worked with: Ariane Aquilina, Michelle Grech, Vanessa Gatt and Julian Vella. My profound thanks go to our very diligent and enthusiastic Publications Officer, Gaynor Saliba, who for the second consecutive year has led, this year’s team with great professionalism, dedication and expertise, qualities which undoubtedly secured the successful formulation and publication of the 25th edition. I would also like to express my gratitude to GħSL’s Executive for their assistance throughout the publication process, in particular, Francesco Refalo, President of the University of Malta Law Students’ Society, for once again entrusting me with the role of Editor-in-Chief of this publication, a privilege given to few. I am truly honoured for having been given the opportunity to serve on the board of this acclaimed local publication for the second consecutive year. The 25th Volume marks an important milestone in the publication of Id-Dritt. This publication was regrettably placed on the back burner for a number of years due to GħSL’s financial constraints. However, for the past seven years, GħSL executives and their respective editorial boards, have successfully maintained this annual appointment, publishing editions of outstanding quality. I would like to take this opportunity to congratulate previous editorial boards and GħSL executives for their sterling work. It is through the diligence of students that Id-Dritt secured the prestige it retains today. Having served on Id-Dritt’s editorial board for the past two years, I have come to realise that the journal in itself represents the contentions of its contributors, arguments which reflect the spirit of the law and that of the legal sector in a given era. Each edition is representative of the Maltese corpus juris at that particular point in time. Having read through the pages of early editions has made me comprehend that in every single page lies a legacy, a legacy that ought to be cherished for many more years to come. xv
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FOREWORD
by Her Excellency Marie-Louise Coleiro Preca
It is, in my view, more than a happy co-incident, that the publication of this issue of Id-Dritt coincides with the launch of what is probably the most wide-reaching legal reform of the judicial and legal systems proposed so far in Malta. If we accept that the basis of good governance is good law, and that a nation cannot thrive without either, then we understand why the study of law as a major discipline becomes, more than paramount, indispensible. The proposed bundle of legal reform aims high. Historically there has been widespread dissatisfaction with the way the law translates into the dispensation of justice. The target of criticism was rarely the substantive law itself, but rather the efficiency factor in the administration of the justice system. Some of the proposals could sound daring and challenging, but they may be a last resort. Almost everything before them failed, notwithstanding the best intentions. They are a glimmer of hope, and hopefully much else. It can only be extremely gratifying that Id-Dritt goes from strength to strength. Over the past years it has improved in quality, grown in quantity, enhanced its appeal. It witnesses the commitment of those who study law, as students, as practitioners and as teachers, to expand their horizons and deepen the wellsprings of their learning. The fact that it has reached its twenty-fifth issue demonstrates more than anything else that the far-off pioneers who conceived the idea of its publication so many years ago had a vision and a project that outlasted them, because of the inherent vitality of their dream and the compelling exigency of their programme. The contents of this issue confirm a trend that has, over the years, become inevitable: that in the realm of law studies, specialization rules. Long gone are the days of the family lawyer as the legal GP, who was expected to be good at everything, though not to be excellent at anything. As leafing through the index of this
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publication shows, the authors who crowd its pages are young undergraduates, qualified practitioners, university lecturers and professors, a member of the judiciary. What unites them is their passion for law; what divides them is their specialization. They are experts in the most diverse gamut of legal offshoots, from aviation law to medieval capitula, from family law to financial services, from taxation to gender law. A combined issue of the last numbers of Id-Dritt would, in itself, constitute a valuable Maltese legal encyclopaedia. This specialised research into the more frequented or the esoteric provinces of law has to be seen as an essential part of the legal training of students. It is not enough that they absorb and learn. It is essential that they then learn how to give and share. The culture of law is not inward looking. It is a major form of expression and of communication. It is the ability to formulate a message and to pass it on. The graduates and undergraduates who, over the years, made so many contributions to Id-Dritt, have understood this. May there be many more. I am sure it is flattering to say that Id-Dritt is the only academic legal journal published in Malta; some may also take that to be a rebuke. Heartening as it is that the students of law felt it imperative to activate a forum for law studies and judicial dissemination, it that enough? Did it have to be the students, or the students alone? What about the legal professionals, what about the legal academics? I believe Malta to be one of the few countries from those that cherish the rule of law, not to have a long-established and prestigious law journal for which the legal profession and the academics of judicial studies are responsible. Kudos to the lawstudents who have stepped in to fill that void with a magazine that, year after year, attains the highest standards of legal scholarship. Without their initiative, their commitment, their enthusiasm and their mania for perfection, the scientific, academic study of law in Malta would have been an arid desert. The wide spectrum of legal disciplines covered by this issue of Id-Dritt demonstrates that those responsible for its publication have truly realized that law is a universal imperative, not a sectional interest. Law permeates every corner of our lives, it regulates every activity, it is the bright red line that distinguishes what is good from what is bad. The ‘rule of law’ fails when it turns into a hollow xviii
slogan – it should dominate as the fundamental principle of civilization that we have evolved today. We hold nothing that is not according to law to be right, and anything which is against the law to be wrong. The rule of law is not, nonetheless, an alternative to ethics. There is still a parallel moral code that elevates and refines the rule of law: not all that is legal is necessarily right, nor is all that is wrong necessarily illegal. These are the pastures of philosophy of law, a discipline which should underlie all the others, but which sometimes tends to be overlooked in the tensions and hurly-burly of the judicial marketplace. There has not been one single article on philosophy of law in the last issues of the magazine. But maybe the greatest attribute of law is that of a living organism. Only its principles are permanent; the way it applies, evolutionary. Continuously, harmoniously, unstoppably, in parallel with social progress, with technological breakthroughs, with the uplifting of the civic conscience, it moves, mostly forwards, sometimes sideways or backwards. To pilot it ever forwards are Parliament, the media, NGOs, constituted bodies, the courts, especially the constitutional court. They are all the custodians of the progress of law as a tool for the betterment of the polis. We all know how some ‘activist’ supreme courts around the world have changed the face of their nations, sometimes superimposing their ‘activisms’ on the timid inertia of legislators. The making of law remains unmistakeably the province of parliament, but the enforcement and interpretation of law are the province of the courts, particularly of constitutional courts. On them is placed the delicate and onerous responsibility of applying laws only and exclusively in the spirit of the basic constitutional values, in such a way that the letter of the law should never be read to be antagonistic to the spirit of constitutional principles. The ultimate guardian of these sacrosanct constitutional doctrines are the courts, and they should never let formal legalisms stand in the way of those overarching values that the civilized world has come to consider as indispensible for the assertion of the human condition above all else. Courts that betray the spirit of the Constitution in their deliberations hardly serve the principal function they are programmed to serve. The members of the Għaqda Studenti tal-Liġi are doing a superb job. May their successors emulate them and strain to surpass them. xix
CONTENTS Administrative Law Key Elements to Ensure a Legally Valid Process Internal Disciplinary Procedures Kevin Aquilina
3
Aviation Law MH17 Tragedy: Where does Responsibility Start and Where does it End? Lara Buttigieg
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Disruptive Passengers on Board Aircraft Rebekah Tanti-Dougall
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Child Law Reporting of Child Abuse – Should it be Mandatory for Professionals? Daniela Azzopardi Bonanno
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Constitutional Law Maltese Constitutional Development at the Turn of the 20th Century: A Historico-Legal Perspective Claire Bonello
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Quo Vadis Parliament Autonomy? Revisiting of the Maltese Parliamentary Standing Orders Anġlu Farrugia and Clive Gerada
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Questioning Parliamentary Supremacy over the Courts Yet Again Ivan Mifsud
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Judicial Importation of Italian Private Law Solutions and its Implications Mark A Sammut
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Criminal Law The Necessary Requisites of Judgements According to Article 382 of the Criminal Code Amadeus Cachia
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Data Protection Law The Right to be Forgotten: Bringing the Data Protection Directive into the Internet Search Engine Era Ann Marie Spiteri
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European Union Law EU Citizenship: A Rightful Component Emanating from the Transition towards a Union or a too FarFetched Widening of the EU Fundamental Rights? Justine Calleja
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Financial Services Legislation The Alternative Investment Fund Managers Directive in Malta: Past, Present... What next? Christopher P Buttigieg
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The Proposed Fourth Anti-Money Directive: What has Changed? Stephanie J Coppini
Laundering
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Gender and Domestic Violence Consuelo Scerri Herrera and Justine Scerri Herrera
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Gender and the Law
Historico-Legal The Capitula of Malta and Gozo – Late Mediaeval Legislative Enactments with Multicoloured Facets Raymond Mangion
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iGaming Law A Legal Snapshot of the European Online Gaming Industry going into 2015 Michele Magro
339
Intellectual Property Law A New Era for Trade Marks? Jeanine Rizzo
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International Law Today’s Terrorist is Tomorrow’s Statesman – Does the Law of Self-Determination provide any Justification for Terrorist Acts? Roberta Avellino
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Legislative Review The Mental Health Act of 2012 John M Cachia
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The Value in Legislating for Family Businesses Nadine Sant
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Medico-Legal Informed Consent in Medical Practice in Maltese Legislation Bridget Ellul
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Notarial Legislation Notaries – Too Many Hats? Roland Wadge
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Private International Law The Six-Week Deadline under The Hague 1980 Convention Sandra Hili Vassallo
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Tax Law Constitutional Safeguards in Tax Litigation: How the John Geranzi Case Upset the Status Quo Conrad Cassar Torregiani and Christopher Bergedahl
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