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It has just come to light ...


a blog by aron mifsud bonnici

Filed under: law

If you hurt a child I want to know your name

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Fondazzjoni Mid-Dlam ghad-Dawl stated this evening that "while it welcomed the legislative proposals set out in the Protection of Minors (Registration) Act, it believed that the new law should only apply fro the day when it comes into force." This position is grossly misguided.

It is always desirable that a law which is penal in nature applies to the future not to the past. No person can be found guilty of an offence which was not considered so at the time of the act. That is a basic tenet of criminal law. However, the law the Fondazzjoni is objecting to is not directly intended to penalise pedophiles. On the contrary, it is meant to protect the victims of such crimes. It is intended to protect minors by preventing their becoming victims of known predators. The minors are the primary focus of the law and not the offenders.

The Fondazzjoni's position is unsound in that it would defy the scope of the law. Yes, sexual predators convicted prior to the coming into force of the new law should be registered. Being so registered is not a punishment for a crime committed prior to the enactment of the law. It is merely an administrative consequence of being so convicted. In practice, it is a measure that would make it that little bit more unlikely that a predator reoffends. And that, to my mind, is a good thing.

Court of Appeal reverses decision of Industrial Tribunal following alleged unfair dismissal of STMicroelectronics employee

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An important judgment in the context of Maltese employment law was delivered today, giving merit to my client’s position on his right to challenge a decision by an ST internal disciplinary board which led to his dismissal. Reversing a previous judgment of the Industrial Tribunal, the Court of Appeal confirmed employees’ right to have their dismissal from employment verified by the Industrial Tribunal.

Today, pronouncing judgment in the case Mark Pace vs ST Microelectronics, Justice Philip Sciberras presiding the Court of Appeal outlined two stages to the employment disciplinary process: an extra-judicial one regulated by the internal disciplinary procedures and the employee’s challenge to the charge and the second stage being judicial when the extra-judicial process would have resulted in the employee’s dismissal from employment.

The Court recognised that there may be cases where the Industrial Tribunal is required to examine the internal disciplinary procedure, namely, in so far as is necessary to establish whether the employee’s fundamental rights were respected by such procedure. This, however, does not in itself exclude the jurisdiction and duty of the Industrial Tribunal to examine the merits of the case and to establish whether the decision arrived at by the extra-judicial body was indeed legitimate.

The Court concluded that the Industrial Tribunal was wrong when it decided that it should not go beyond an initial enquiry as to whether the extra-judicial process was fair. The Industrial Tribunal was duty bound to analyse and evaluate the evidence and establish whether there was a good and sufficient cause for termination.

The Court of Appeal further stressed that the Tribunal was wrong to state that it had no jurisdiction beyond that empowering it to establish whether the internal disciplinary procedure was adhered to. The Tribunal’s discretion is much wider than that. The employee was entitled to seek redress when he was not satisfied with the evaluation of the facts of the case by the internal disciplinary body. The Tribunal, in turn, is perfectly entitled to substitute its discretion for that of the internal disciplinary body.

The Court of Appeal ordered hearings to resume before the Industrial Tribunal so that the latter may pronounce judgment on the merits of the case.

STMicroelectronics is an Italian-French semiconductor manufacturer headquartered in Geneva, Switzerland with manufacturing facilities in several countries including Malta where it is the largest private employer on the island.  The judgment was met with satisfaction by the Maltese trade union movement.

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