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2018 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 2018 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 XXVIII 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: 978-99957-857-7-2
Opening Address Matthew Charles Zammit Publications Officer, GħSL
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n behalf of the GħSL Executive Board, the Publications Committee and the Id-Dritt Editorial Board, it is a great honour and privilege to present to you the 28th Edition of Id-Dritt, the annual law journal published by the Malta Law Students’ Society. This law journal is the cumulative effort of a large number of people - the contributors, who dedicated large swaths of time to form and research their points of view, which are then expressed in the written form; the editors, who shaped and edited the content into the recognisable standard that Id-Dritt has become synonymous with; the peer-reviewers, who gladly accepted our invitation in providing a professional feedback about the content and the quality of the articles; and the GħSL Executive Board, without whose backing and support the whole idea of another edition of Id-Dritt would be nigh impossible. What initially commenced back in 1944 as a highly-ambitious project by a small number of legal students with an amaranthine passion for the law, through many trials and tribulations, has now transformed itself into a quasi-customary obligation for this student organisation, both because of its timely delivery year after year, but also due to it being a product and a detailed examination (or in some cases, a rebuttal) of external events, technological advancements and societal questions prevalent in our community. Id-Dritt, along with its online sister the GħSL Online Journal, are amongst the only mediums accessible by students, academics and professionals in the legal field alike who are willing to not only pursue the further dissemination of legal knowledge and appraisal, but to encourage the fruition of healthy academic discourse and well-researched criticism, in a world seemingly lacking of both. In a hyper-connected environment, where foreign and domestic policy is expressed through 140-character statements, and longstanding normative practices are being mercilessly discarded while we witness the creation of enterprises hell-bent on democratising basic norms and truths in ever-efficient ways, the need for clarity has never been this high of an antecedent. viii
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It would be easy for one to refrain from having to willingly differentiate between fiction and fact, instead opting for a policy of non-committal in the pursuance of further knowledge: this, in a world with open access to an infinite database of information at the touch of a button, seems rather sardonic, if not plainly comical. It seems that the Aristotelian means of a sturdy middle-ground remains elusive, hidden under the influence and end-product of multiple self-serving stakeholders, whilst a deep undercurrent of Socratesian cynicism slowly rears its ugly head with exponential frequency. While the problems plaguing public discourse are well known (perhaps the result of a convoluted past, an ever-changing present, a hazy future or possible a concoction of all three), the stability allegedly defining academic writing features its own distinct set of new challenges. Some of the elements, which are inherent and contribute to the apparent niche of this medium (a protracted indepth examination of the subject matter; a discrepancy between the mainstream and the technical definition of terms which are the result of the insatiable need for accuracy and clarity; and a prevalent focus on the content as opposed to the aesthetic appeal or the delivery) might also threaten the allure for its intended reader, which in turn intimidates the motivation needed for the potential fruits to be sowed in the first place. It is perhaps disappointing that in Malta all law journals are published only by law students, while professional bodies who are seemingly eager to limitedly contribute to these publications, are unable or unwilling to have a medium of their own. The effects of this can be pretty damaging. On the international stage, fringe elements of academic writing have already fallen into the crevices of self-serving partisan ideology, or else sacrificed in-depth scrutiny for mainstream appeal, to the detriment of their source material. And while the technostructure behind Malta’s academia, especially the legal sphere, remains robust for the foreseeable future, it is clear for many that the demand for legal writing far exceeds the supply. While the work done by the multiple offices inside GħSL are indubitably substantial (the vast array of policy papers, seminars, ix
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conferences and publications all speak volumes about this organisation’s illustrious history of student and legal activism, as well as its ambitions and aspirations), and whilst the efforts of other organisations must be duly acknowledged, this fruitful habitat seemingly dissipates as soon as we venture from the grounds of Tal Qroqq. There is still a disconnect between the appreciation for academic writing inside the four walls of the University of Malta, and the acknowledgment of said writing in the Law Courts, in Parliament and in the law firms, something which does not mirror other skilled professions with similar needs for academic research. As things currently stand, members of the legal profession here in Malta must either resort to the very few student publications in existence to obtain a multi-faceted understanding of the subject, or else turn to the press, a medium whose objectives (brevity, shock value, rapid content turnover and audience responsiveness) are more often than not incompatible with those necessary for a well-construed legal article. This latter point stems from a more subjective point of view: at some point, yours truly has worn the hats of a law student, a journalist, an editor for an academic journal and the chief executive officer of a student media organisation, and is perhaps more aware of the potential pitfalls when dealing with this dichotomy than those not specifically interested in either of these fields. GħSL, through the Publications Office as well as its other committees, still remains committed in actively participating within the legal profession, as well as beyond. I have no doubt that in the upcoming years, this organisation will continue fulfilling this rapacious necessity for academic writing: This edition of Id-Dritt is, if nothing more, a testament to the values that are held so intrinsically deep within this organisation. However, the real legacy of Id-Dritt and the Online Law Journal would only be cemented if it inspires further academics and professionals in the field to do two things: 1) Add to the slowlyincreasing library of Maltese academic research in the legal field, at a faster rate than the present supply, and 2) come up with substantial x
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new ways of transmitting such a highly-influential collection of legal knowledge to all members of the legal profession in an efficient, practical yet secure manner; from the judiciary to the executive, from the lawyers to the legal advisors. On a final point, I would like to thank a large number of people who, without their help and input, the 28th Edition of Id-Dritt would have merely been a pipe dream: To Daniele, Nathaniel, Lara, Agnes, Aidan, Andrew James, Celine, Cynthia, Emma, Erika, Jessica, Julia and Matt, as fellow members of the Executive Board: We few, we merry few. My brief experience in GħSL has been insanely gratifying, and while your company has been hugely appreciated, I’m more than encouraged by what the future holds for each and every one of you. Knowing I had your confidence at every turn made the work easier to conclude, yet simultaneously more gratifying. You have my thanks! To Susan, the Editor-In-Chief: I could not have possibly asked for a superior aide-de-camp in ensuring the finalisation of this project. Your invaluable experience has helped ensure that this publication reaches the highest levels it deserves, and your mark on this publication couldn’t possibly be overstated. It’s been a pleasure. To Daniel, Carla, Clara, Maria, Emma and Diana, the IdDritt Editorial Team: Apologies for my incessant badgering, but in case I wasn’t clear enough in our conversations, your efforts were consistently top-notch and immensely appreciated. A better legal editorial team would be excruciatingly hard to come by, and I truly wish you all the best for your future endeavours, whatever and wherever they may be. To my direct predecessors, Corinne and Ariane: Fulfilling a personal dream since the earliest days inside the law course was always going to be a challenge, especially when I had each of your big shoes to fill. To that end, your help and your advice are immeasurably cherished, and immensely appreciated.
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To my family and to Jessica, my significant other: Without you, all of this would have been rather pointless. Your omnipresent encouragement and unconditional love will always be treasured. To all the contributors and the peer-reviewers: Your efforts, which continued to be of the highest academic calibre, are evidence of the high reputation that Id-Dritt holds within the legal profession. We thank you for your contributions, and we hope we have made them justice. And finally, to you, dear reader: We wish you thanks for your interest in this publication, and we hope to encourage and inspire you to read, examine, critique, participate and encourage such publications in the future, even when it might seem that such an endeavour is facing insurmountable odds. I finish by some final words of encouragement and ponder. The following is an extract from the Song of Lewes, a 13th Century poem (originally in Latin) which is described by contemporary accounts as ‘a religious celebration of the triumph of right over might1: The saying goes, ‘Whatever the King wishes, is law,’ but the truth is the other way round, for the law stands even if the King falls. The law is made up of truth and charity and the habits of virtue; truth, light, charity, warmth, enthusiasm catch alight. Whatever the King legislates, let it be consistent with these principles. Otherwise, the people will be miserable; and they will be betrayed if the King averts his gaze from the truth, or lacks charity, or if he does not always have the energy to do right... The King should treat his people according to their due. If he doesn’t, if he degrades his people and demotes them, there is no point in asking why men treated in this way disobey him. On the contrary, they would be mad not to do so.’ 1
Colin Firth and Anthony Arnove, The People Speak - Voices That Changed Britain (Canongate Books Ltd 2012) 14 xii
Preamble Susan Cassar Editor-In-Chief, Id-Dritt XXVIII
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our years ago, I was approached and asked whether I would be interested to help the GħSL’s Publications Office in transcribing some speeches, the main aim being to publish them in the book entitled ‘The Constitution: 50 years of proposals and Counter Proposals1’. Being highly interested in the field of Constitutional law, I immediately accepted to help the office out, and after an enriching experience, I later on decided to join the Id-Dritt Editorial Board as an editor. After having served the Id-Dritt Editorial Board for two consecutive years, I was asked by the then-Publications Officer Ariane Aquilina on whether I would consider contesting the election for Publications Officer, or else continue aiding the office by accepting the role of Editor-in-Chief. For the greater good of the Publications Office, knowing that the fifth year of my legal studies i.e. the Master of Advocacy course, would entail extra hard work (since one would not only have to attend lectures at the University of Malta, but also attend a lawyer’s office regularly in preparation for the warrant exam), I opted for the role of Editor in Chief. I was excited and honoured to work for the 28th Edition of IdDritt during my final year of the law course. The role of Editor-inChief is not to be taken lightly: One of my main priorities was to keep Id-Dritt pertinent and alive in an era where, in this tiny rock in the middle of the Mediterranean, only a few people really appreciate the importance of legal research. It is wonderful to witness a substantial amount of authors expressing their interest in contributing their articles for Id-Dritt or for the GħSL’s Online Law Journal, and whilst academically legal research is highly valued, one cannot ignore the fact that in practice, more often than not not the messages heralded by these prestigious publications are falling on deaf ears. As an example, allow me to mention the fact that despite the abundance amount of legal writings suggesting ways to enhance the Attorney General’s Office in Malta by separating his roles of 1
Mifsud Ivan (Ed.), The Constitution - 50 Years of Proposals and Counter Proposals (Book Distributors Limited 2015) xiv
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Government legal Advisor and public prosecutor, our Maltese legislators (since the 1990’s) have failed to take this research into consideration and apply the necessary criminal and constitutional amendments. The latter thought is not only held by yours truly, who is merely a freshly Bachelor of Laws (Hons) graduate, a Master of Advocacy student and a trainee in a lawyer’s office, but also by two local highly esteemed legal practitioners: Specifically, former European Commissioner Dr. Tonio Borg and Magistrate Dr. Aaron Bugeja, the latter having lectured me during the year on Criminal and Constitutional Procedure, who has continuously harped during their lectures that criminal and constitutional amendments to the said office ought to take place in this day and age, because this is what research (including that published in previous editions of Id-Dritt) has shown and indicated in no uncertain terms. The author who dedicates his time researching on a particular area of law would usually propose amendments that would improve the manner in which our legal system works. In drafting and amending laws, the House of Representatives ought to take more into consideration these legal publications such as Id-Dritt as a source of knowledge, research and legal innovation. Volume XXVIII of Id-Dritt contains a variety of articles dealing with different areas of law, from those being mainly practiced in the Valletta Law Courts such as Criminal Procedure, Constitutional and Human Rights Procedure and Administrative law, to the more new and complex areas being primarily exercised in law firms such as commercial law, gaming law, maritime law, and ICT law. Additionally, this year’s edition boasts a very good number of articles dealing with European Union law. The contributors of the said legal journal include members of the judiciary, expert advocates and professors, newly graduate advocates, as well as experts in their fields such as architects and doctors, all of whom had experience in the drafting and passing of new legal amendments. The inclusion of the latter category may not be so welcome by some, however allowing some space to these professionals to contribute in an area which they are specifically involved in, would xv
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definitely result in them teaching legal practitioners and law students about that particular field of the law. My role as Editor-in-Chief would not have been accomplished without the help and guidance of certain people. Firstly, I would like to thank the Publications Officers Corinne Micallef Grimaud and Matthew Charles Zammit, for understanding my ‘limitations’ as a Gozitan when scheduling Editorial Board meetings and for their constant support and guidance throughout this whole journey. Their leadership skills, dedication, and patience have made this dream of IdDritt come to reality. I thank both of them as well as their predecessor Ariane Aquilina for giving me this opportunity to serve as Editor-inChief. It has been an honour working with all of you. Secondly, I would like to thank my team of editors Daniel Cassar, Carla Farrugia, Clara Galdies, Maria Refalo, Emma Sammut, and Diana Ungureanu for their hard work in editing the articles whilst also being engaged in academic activities. To all of you I would like to say: ‘A big well done. Thank you for being patient with me during those times wherein I demanded perfection to the core in following Oscola rules’. I would also like to thank all the contributors for dedicating their time to write exceptional articles, without whom Id-Dritt would not have seen the light of day. Last but not least I thank the peer-reviewers who went through each and every article ensuring that they are of good quality for publication. I hope that this edition of Id-Dritt would be availed of not only by law students or academics conducting some form of research for their thesis or assignments but also by the practitioner in his/her office, by the judiciary and by the Maltese legislator. Let us not simply leave these legal publications on a bookshelf, but let us respect the author’s hard work.
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Foreword Dr David Fabri Head of Department, Commercial Law Faculty of Laws
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aw is an interesting, vital, useful, necessary and evolving phenomenon. It reaches into, influences and guides most aspects of our lives. Law is a civilized and civilizing device which allows us to lead better lives together in, and as a community. It makes our lives safer and more predictable than it otherwise might have been. Law makes the lives of ordinary people less difficult, and holds government and authority to account. Law is a special and important subject to learn and to teach. The study of law is also a wonderful intellectual challenge – it is not about merely passing exams. If mishandled, law studies can become boring and seemingly useless. Bad teachers can ruin one’s interest in law. It does not need to be like this. The study of law is not about learning stuff by heart, or memorizing set answers to exam questions not yet even set, or about class notes and past papers. These are mental traps and one should rebel against these unworthy practices, rather than idly embrace them. Certainly, dictation suits the law very badly. How could so many closed minds almost ruin it for us by transforming the study of law into a monotonous and senseless burden? We live in a fast changing world. Knowledge is key and crucial for one’s self-development, for one’s entertainment and for one’s interactions with others. Students have made a good choice entering the law course. It is a badge of honour to be and to be described as a University student. Students have to work to deserve that privilege. Students do not come to University just to study for exams, but to open up their minds to knowledge. Learning is fun, and one should try to have fun while learning about law and its evolution and history. Luckily, today we have far greater access to laws, cases and publications. Students, you should surround yourselves with books. Even books one might not eventually ever read; serious books as well as fun books. They will sit there faithfully and silently waiting their moment to arrive. Put up shelves and bookcases wherever you can possibly fit them.
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One may start with such instructive older texts as the Code of Hammurabi and the Magna Carta, any book by the brilliant Lord Denning or any from the hilarious Rumpole collection. No real alternative to reading exists, and there are no short cuts. Either you read or you don’t. If you do not like reading, then you are in the wrong profession; indeed in the wrong place. Laws should not be examined in isolation, but within their historical and political context. Everything has a context, and law is certainly no exception. A student should try to understand what the law is seeking to achieve. Is it a good law? Is it being done for the right purpose? Who is pushing it? What led to it? Are its objectives clear and has it been properly drafted? Does it achieve the intended objectives? Is it workable? Is it comprehensible? And how can one improve upon it? Law students cannot simply accept what they find as if no alternative exists. There is no such thing as a perfect law. One can always find a different and a better way of doing things. This is where students come in the picture: they should analyse things, criticize them and work to improve them, thus offering new insights. Students leaving from the University with a law degree should remain humble and continue studying and learning beyond that which was taught. Perhaps more than ever before, we need to know how and why laws are being made, and why some laws have been conceived and drafted so poorly. We desperately need a more informed and coherent discussion of what we want to achieve from regulators and regulation, what the objectives are, what risks need to be better managed, what dangers lie in wait, what mistakes and deficiencies have been identified, how regulators should conduct themselves, and what the future holds for us in this area. In this context, Id-Dritt should become quality and compulsory reading. Criticism of legislation is still too soft or inexistent and we now need to start adopting harsher pens. Id-Dritt should take the lead, build on what has already been achieved and continue to improve legal knowledge. No more mere reviews; no more descriptions; no xix
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more simplistic narratives; no more vanity articles; but more original analysis and innovative solidly researched criticism. This should be the cardinal objective of this student publication. Writing well about law, like writing good laws, presents significant challenges. It is not enough just to write, but one should seek to make an articulate, original and substantial contribution to knowledge and to the community, a contribution imbued with a strong sense of justice. So many legal developments have happened during these past 25 years that it may sometimes seem difficult to keep up. So many new regulators and so many new regulations. So many poorly drafted laws to correct; so many bad laws to improve, to strike down, to replace; so many new good laws still to adopt; so many laws not enforced or enforced selectively. So much to read, so much to think about, so much to criticize, so many small and big injustices, so much to change and improve. So much to write about, so little time.
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Editorial Board
Publications Officer Matthew Charles Zammit Corinne Sammut Micallef-Grimaud Editor-In-Chief Susan Cassar Editors Daniel Cassar Carla Farrugia Clara Galdies Maria Refalo Emma Sammut Diana A. Ungureanu
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Executive Board 2017 / 2018 Għaqda Studenti tal-Liġi (GħSL)
President
Daniele Gafà
Vice President
Nathaniel Falzon
Secretary General Lara Attard
Financial Controller
Matthew Booker
Public Relations Officer Cynthia Duncan
Academic Events Officer
Celine Cuschieri Debono
Academic Affairs Officer Agnes Vella
International Officer Julia Cini
Marketing Officer Emma Blake
Resources Officer
Andrew James Abdilla
Events Officer Aidan Cutajar
Policy Officer Erika Taliana
Publications Officer
Matthew Charles Zammit
External Relations Officer
Jessica Napier
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Contents
Volume 1
Administrative law The role of current Maltese legislation in the prevention of traffic accidens in Malta Mariah Mula
2
Bio-Ethics My Patient - the Unborn Human Child Godfrey Farrugia
18
Book Review The Multidimensionality of Privacy: Joseph A Cannataci’s ‘The Individual and Privacy’
Kevin Aquilina
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Comparative Tort Law Le funzioni della Responsabilta’ Civile nel panorama Italiano, e il difficile dialogo con il Danno Tanatologico Anunziata Rapillo
67
Competition Law An effective regulatory enforcement and sanctions regime post the Federation of Estate Agents Case: the issues
Paul Edgar Micallef Grimaud
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Criminal Law An analysis of the Maltese Criminal Law on Female Genital Mutiliation and reflections on potential legal & social consequences
Jeanise Dalli
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Evaluating the impact of the EU Directives regarding criminal investigations, namely 48/2013 regarding the rights of a suspect
Consuelo Scerri Herrera
149
Crypto-Currency Law Is current legislation ready to embrace the Blockchain revolution, and what is the legal position of Initial Coin Offerings (ICO’s)? 169 Jonathan Galea, Joe Borg, Erika Micallef, Miriana Borg
Data Protection Law Consent in light of the General Data Protection Regulation
194
The General Data Protection Regulation: Automated decisions and the impact on Big Data Analytics
215
Sharon Xuereb, Terence Cassar
Alastair Facciol
Employment Law Employment Law - Disciplinary procedures and warnings
Natalino Caruana De Brincat
227
Environmental Law The Recast Renewable Energy Directive - Any consequences for climatechange?
Rya Gatt
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239
Volume 2
EU Law Brussels: The new Babylon? Law and language in the European Union?
263
A Discussion of Proportionality in selected cases of EU Fundamental Rights
285
Multilingualism and EU Legal Terminlogy
316
The Eurasian Economic Union Risks and opportunities of an emerging Europe
342
Roxanne Meilak Borg
Natasha Buontempo
Diane Sultana
Werner Miguel Kühn
Gaming Law The future of Malta’s Gaming legal framework: Overhauling the System Silvana Zammit
410
International Law Some general reflections on characteristic features of International Humanitarian Law? Marcin Marcinko
423
Legal History The Malta Government Gazette: a chronicle of History in the making? Kevin Aquilina
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Maritime Law Unmanned Surface Vehicles and Piracy Identifying the (New) Legal System Caroline Grech
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Planning Law Article 469A from a Planning Law Perspective Robert Musumeci
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Press Law Freedom of Speech and the Media: An Absolute or Derogable Human Right? Vincent de Gaetano
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EU Law