Perhaps the most common measure adopted by governments worldwide over the past two years has been, quarantine.

As a result of such a forceful measure, millions of people at some point or another are forced to remain confined to their homes either due to a positive swab test result or due to their close contact with someone who tested positive for coronavirus.  This measure has left several consequent ripple effects especially on employers and employees.

With employees being restricted to their homes on a daily basis, the novel of “quarantine leave” was introduced.

According to Subsidiary Legislation 452.101, quarantine leave is “leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health under the Public Health Act or by any public authority under any other law.”

Therefore, quarantine leave is not available to those who out of their own will decide to self-isolate but is only available to those who have received a formal letter by the authorities ordering them to quarantine. Additionally, the novelty of this concept is also remarked due to the fact that quarantine leave is not meant to serve as a replacement to paid vacation leave or sick leave, but is a new form of leave entitlement altogether.

Interesting are the interplays between sick leave and quarantine leave. If an individual tests positive for Covid-19, then that particular individual is to be considered as sick – therefore being entitled to sick leave from his/her employer. A similar system applies to individuals who although having initially tested negative for Covid-19, would have tested positive during their period of quarantine. When the illness terminates, if the person is ordered to remain in quarantine, then the quarantine leave regime will apply. Conclusively, only people who test negative for Covid-19 and are ordered by the Superintendent of Public Health or other authorities to remain in quarantine are eligible to avail themselves of quarantine leave, whereas those who test positive for Covid-19 avail themself of their sick leave entitlement.

The remarkable feature of this definition lies in the fact that whilst an employee is availing himself of quarantine leave, that employee has his mind at rest that he will not suffer any deduction in his wage.

The Maltese legislator has created a scenario wherein a person who tests negative for Covid-19 but is nonetheless ordered to quarantine, is afforded full protection of his wages. Yet, opposingly a person who is ordered to quarantine for testing positive for Covid-19, is not entitled to the same sort of protection.

The entitlement to sick leave is regulated under Regulation 3 of Subsidiary Legislation 452.101 which caters for a stipulated period available to an employee as sick leave for which the employee is entitled to receive his full wages. Therefore, if one considers a scenario wherein an employee avails himself of his full sick leave entitlement, and subsequently contracts Covid-19, the employee may find himself in a position wherein he does not qualify for quarantine leave and would have to avail himself of further sick leave which may result in loss of wages.

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The terms presidential pardon or prerogative of mercy, commonly referred to in Maltese as proklama or maħfra presidenzjali, have in the past couple of months become buzzwords in Malta. As the name itself suggests, a presidential pardon implies clemency or forgiveness. It is an extremely powerful discretionary tool, regulated by article 93 of the Constitution of Malta, vested in the executive arm of the State, specifically the Head of State. A presidential pardon empowers the President, through Cabinet, to assume powers ordinarily vested in the judicial organ of the State. In other words, this powerful tool usurps the functions of the courts of criminal jurisdiction.

Generally, when granted, a presidential pardon either exonerates, conditionally or unconditionally, an individual from criminal prosecution for his/her involvement in a crime or else discontinues the effects of a criminal conviction by, for instance, ordering that an inmate serving an imprisonment sentence be immediately released from prison. The President may also, in terms of article 93 of the Constitution, substitute a less severe form of punishment for any punishment imposed on any person for any offence, at his discretion or owing to a change in law where the relative punishment would have been decreased.

Many a times, presidential pardons are granted in exchange for inside knowledge or information that would help the investigative authorities and prosecutorial bodies secure the convictions of the true masterminds of the crime concerned. Such pardons are generally subjected to a number of conditions, the standard one being that the individual pardoned has to give State evidence and reveal the whole truth in Court and moreso cooperate fully with the prosecution in arriving at the truth. If the person does not abide by any of these lawful conditions, the pardon may be revoked.

Interestingly, contrary to what many might think, while a request for a presidential pardon is on paper addressed to the President, the latter is actually compelled to act on the advice of the Cabinet, generally the minister responsible for justice, prior to granting a pardon. In fact, when the office of the President of Malta receives a request for a presidential pardon, such request is normally communicated to the minister responsible for justice for his advice, who in turn generally consults with other authorities such as the Attorney General or the Commissioner of Police.

What is also noteworthy about the manner in which presidential pardons are granted is that contrary to criminal offences which are tried by independent and impartial courts in a public setting, all discussions and arrangements in connection with presdential pardons take place privately behind closed doors. The consultation carried out, if and when this is done, is normally limited to government ministries, departments, agencies and/or the public administration. Technically speaking, the Cabinet need not even consult with the Attorney General and/or the Commissioner of Police prior to deciding whether or not to grant a prerogative of mercy. Moreover, the public and the media is never consulted as to whether an amnesty should or should not be given and in which circumstances or under what conditions. This makes the exercise rather secretive and partial.

One may, in light of the above, justifiably question the overall fairness of the system of presidential pardons, especially in Malta where the decision-making process is not transparent and is practically left in the hands of polticians. However, on the other end of the spectrum, the importance of the presidential pardon system – which is found in most democratic countries – is undisputed if utilised for humanitarian reasons, inter alia to combat miscarriages of justice and as a tool to ensure that those who commit serious crimes do not escape punishment.

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The main premise whenever discussing pre-1995 leases is that the regime regulating them is ever-changing and has been subject to countless amendments in the past. The perpetual struggle of the legislator is achieving balance between the rights of the tenant and the rights of the landlord. In a nutshell, the current situation is that pre-1995 leases which are still in effect at this point in time are automatically renewable and the rent payable does not reflect current market value. In an attempt to provide a solution, Bill 203 of 2021 (Controlled Leases Reform Bill) proposes amendments to the current regime regulating pre-1995 leases. This Bill is currently at first reading stage so if and when it is passed into law it will affect the Chapter 16, Chapter 69, Chapter 158, and the Chapter 474 of the Laws of Malta.

Proposed Amendments to the Civil Code

Out of the various articles in the Civil Code which regulate pre-1995 leases, of particular relevance is Article 1531C which provides that the  rent  of  a  residence  which  has  been  in  force before the 1st June, 1995 shall be subject to the law as in force prior to the 1st June, 1995. What the amendments propose is the addition of a proviso to Article 1531B which provides that after the Bill enters into force, Articles 1531C, 1531F, 1531G and 1531K shall not continue to apply to pre-1995 leases. Articles 1531C and 1531K will only apply in regard to the establishment of the minimum rent payable. This means that pre-1995 leases will be subject to the law as amended and not as in force prior to 1st June 1995. Therefore, the proposed amendments to the Civil Code need to be viewed in the context of the other proposed amendments.

Proposed Amendments the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta

Currently, the only way for a landlord to increase the rent of a pre-1995 lease falling within the ambit of Chapter 69 is to opt for constitutional action. While such action has proven to be successful, the procedure is repetitive and tedious. First, the landlord needs to file a constitutional application before the Civil Court (Constitutional Jurisdiction) on the basis that Chapter 69 gives the tenant protection which breaches the landlord’s fundamental right to property. The Court will then declare that it has found a breach of the landlord’s human rights and declares the protection afforded to the tenant unconstitutional. Arguably, however, it fails to provide a concrete remedy to the landlord. After obtaining such judgment, unless of course it has been appealed, the landlord would then have to file another application before the Rent Regulation Board (RRB) for eviction or for a fair increase in the rent. Despite this system being critised by the European Court of Human Rights (Portanier v Malta, 2019), the landlord is forced to jump through multiple hoops in order to have his basic fundamental human rights safeguarded.

This is why an amendment to Chapter 69 to this effect is overdue. The proposed amendment largely mirrors Article 12B of Chapter 158 of the Laws of Malta and entitles the landlord to file an application before the RRB requesting that the rent is reviewed to an amount not exceeding 2% per annum of the free and open market value of the property. The RRB will then conduct a means test of the tenant and where the tenant is found not to have sufficient means, he or she will be given five years to vacate the premises. The tenant may then apply for the Private Rent Housing Benefit Scheme and the additional rent is paid by the Housing Authority according to the means bracket which the tenant falls under. Furthermore, when such an application is filed before the RRB, the Housing Authority shall be notified and shall have the right to participate in the proceedings. The tenant shall also be entitled to benefit from legal aid in such proceedings.

Proposed Amendments to the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta

Given that Article 12B of Chapter 158 was already introduced back in 2018, the proposed amendments to this law are less voluminous when compared to Chapter 69. With regard to Chapter 158, the legislator is also proposing that the tenant be entitled to benefit from legal aid in proceedings under Article 12B. Presently, the law provides that both landlord and tenant are entitled to such aid. This proposed change is recognised as an attempt by the legislator to avoid any conflict of interest for the Housing Authority which would be providing such aid.

Interestingly, with the proposed amendments the legislator proposes the deletion of Article 12B(11). Sub-article 11 provides that when the landlord obtains a judgment based on the lack of proportionality between the value of the property and the rent receivable by him or her, the landlord cannot proceed with evicting the tenant without first availing himself of the procedure of Article 12B. This means that after obtaining a judgment by the Constitutional Court declaring a breach of his fundamental human rights, the landlord still cannot enforce this judgment before the RRB. Being the subject to various consitutional cases, Article 12B(11) has been declared by the Constitutional Court to be in breach of the landlord’s fundamental human right to property (Robert Galea vs Avukat Ġenerali et, Constitutional Court, 6th October 2020). Therefore, the proposed deletion of this sub-article may be seen as a reaction to such judgments which declare this to be unconstitutional.

Proposed Amendments to the Mediation Act

The proposed bill also seeks to delete Article 34 of the Mediation Act which provides for mandatory mediation prior to a suit before the RRB being initiated. With Article 34 coming into force only a few months ago, should this proposed amendment be successful it is safe to say that mediation in rent proceedings will be shortlived.

What impacts will these amendments have, if implemented?

It is arguable that the most substantial amendment is that regarding Chapter 69 of the Laws of Malta. As discussed, the amendment proposed is almost identical to the current Article 12B of Chapter 158. When this is taken in the light of the latest jurisprudence of the European Court of Human Rights on the matter, particularly, Cauchi v Malta (decided on the 25th March 2021), one is more prone to take a more skeptical view of these amendments.

This is because, in this judgment, the ECHR held in no uncertain terms that:

‘In view of these considerations, the Court cannot accept that Article 12B was designed to deal effectively and meaningfully with the issue of the disproportionate interference arising from the applicable rent laws, which has already been recognised by the domestic courts […] Without prejudice to such future findings, in view of the above‑mentioned considerations, as the situation stands today, the Court cannot confirm the effectiveness of this remedy in circumstances such as those of the present case.’

Therefore, while these amendments are undoubtedly a step forward, their true effectiveness remains to be seen. With the ECHR pronouncing itself so clearly on Article 12B, which the proposed amendments to Chapter 69 mirror, the answer seems to lean towards the negative. Indeed, it is more likely than not that this amendment, albeit still in the metaphorical legislative womb, is doomed from the start.

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The right to property is protected by the European Convention on Human Rights; therefore, rendering it also a protected by our Constitutional courts. In principle, this means that no one may forcefully take one’s property. Naturally, as with most other laws, there exist certain exceptions (such as cases of expropriation with just compensation). But with most cases, one can enjoy his property without State interference.

The right to property has taken Malta by storm in the last few years. A large number of Maltese landlords (thousands) have suffered the legislative labyrinth created by the continuous development in our rent laws. Two laws are the main culprits: contracts of lease which predate 1995 (under Chapter 69 of the Laws of Malta) and temporary emphytheutical concessions converted into permanent leases (Chapter 158 of the Laws of Malta).

In brief terms, Chapter 69 (the Reletting of Urban Property (Regulation) Ordinance) and Chapter 158 (Housing (Decontrol) Ordinance) had been introduced and amended in order to protect the interest of the general public at the time of their promulgation, by creating protected ‘leases’ that could not be terminated. Basically, on the expiration of the period of occupation agreed to between the parties, the lease did not end, continued, and the landlord could not refuse to renew it from year to year. He had to remain in the lease, whether he liked it or not. To add insult to injury, both laws also placed enormous limits in how rent may increase from year to year – in most cases, rent could only increase in proportion to the yearly COLA increases (which could literally mean an increase of for example five euro every three years). We therefore have beautiful houses in Valletta being rented for €209 a year, properties that on the free market may easily fetch €2000 a month. These laws meant that landlords could neither increase the rent to reflect the market prices nor take back their property.

In time, landlords started to resort to our courts of constitutional jurisdiction to obtain a remedy. The number of these cases are plentiful today, and usually (with some exceptions) go through the following steps:

An Application is filed in court

The court application primarily consists of the landlord’s claims and the remedy that is being requested, and it is made against the tenant and the State Advocate (as legal counsel to the State). The remedies requested are usually two: one against the State Advocate, consisting of a demand for adequate compensation, and another against the tenant, consisting of a declaration that the lease in question is affected by a law that is in violation of Article 1 Protocol 1 of the European Convention of the Human Rights.

At times, an attempt is made to evict the tenant in order to regain back the peaceful possession of the property. This, however, has proven to be a legal tug-of-war between domestic courts and the European Court of Human Rights, with the Maltese courts still very reluctant to directly evict tenants, instead opting to merely declare that the tenant would no longer be able to rely on the articles at law in question to remain in the lease. After that, the landlord would have to file a second lawsuit, and seek eviction before the Rent Regulation Board.

During the hearing of the case, one must usually provide documentation proving his or her title over the property, provide evidence as to the duration of the ‘protected lease’, and provide evidence as to the rent received throughout the years.

The Respondents will reply to the case

The respondents (the tenant and the State Advocate) will file their reply, stating why in their view the court should not accede to plaintiff’s request. Usually, the parties will attempt to make the argument that these old rent law manage to create a balance between the rights of the landlord and those of the tenant, and that therefore, they are not in breach of the fundamental right to property. The tenant will also usually attempt to exculpate himself/herself, stating that he or she is not responsible for the promulgation of laws, and so, any declaration that a law is in violation of the European Convention on Human Rights is not to affect him, and that he should not be burdened with the costs of the case

A Date for the First Sitting is appointed.

A date is appointed for the first sitting. At times, this proves to be an important sitting because any preliminary objections are raised and addressed — objections which are sometimes capable of putting the proceedings at a halt or even dismiss the case at once.

An Architect is appointed

Usually then, plaintiff (the landlord) requests that a court-appointed architect is engaged in order to give an indication of the rental market value of the property in question through the years. The architect is responsible to draw up a report highlighting various important information about the property, such as whether there were any changes made, any deterioration taking place, and so on. This aids the court in two manners: it allows to see whether there is a substantial discrepancy between the rent received by the landlord and that available on the market, and what kind of compensation would be suitable to remedy the harm suffered by the landlord in view of these rent laws, if in the circumstances of the case they are deemed to be in breach of the landlord’s fundamental human rights. In nearly all the cases, the expenses for the services of the court-appointed architect is provisionally and initially paid by the plaintiff (the landlord), who will only publish his/her findings after having been paid.

Parties are allowed to produce witnesses, bring evidence, and ask questions to the court-appointed architect.

Parties may bring witnesses, produce evidence and submit in court any relevant proof. Thereafter, the parties will be given the opportunity to make final submissions.

Judgment

A judgment is then given by the court. The court will state whether there have been any violations of the landlord’s human rights, and if so, it will liquidate the amount of compensation to be paid by the State Advocate to the landlord. Never there has been a case where the tenant was obliged to pay compensation, and it is also extremely rare for the tenant to be condemned to pay the costs of the case. There have been limited cases in the past where eviction was also requested and then considered as one of the remedies to be given; however, in the past years, our courts have mostly limited themselves to declare that the tenant would, from the date of the judgment, no longer be able to rely on that law declared to be violating the landlord’s human rights to remain in the property leased. Then the plaintiff would have to file another case before the Rent Regulation Board to seek eviction, unless of course the parties find some sort of agreement.

The parties can then appeal before the Constitutional Court.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@azzopardilegal.eu.

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