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.

The post THE LETTER OF THE LAW: Sick Leave vs Quarantine Leave appeared first on Arthur Azzopardi & Associates.

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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