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Anna Mallia | Wednesday, 08 April 2009

Traders are going to jail

It seems odd how the Chamber of Commerce and the General Retailers and Traders Union are silent on the fact that traders can now be sent to jail for not honouring the decisions of the Consumer Tribunal and the decisions of the Court of Civil Appeal relating to this tribunal.
Our Parliament amended consumer legislation last year with effect from December 2007, so that traders who do not comply with the decisions of the Consumer Tribunal are now charged before the Criminal Court and fined for not doing so. This means that if you do not pay the fine you will be sent to prison just as Dr Harry Vassallo of Alternattiva fame was about to be sent to prison before the past general elections.
So far we only knew of traders and professionals who were sent to prison for being found guilty of not submitting their VAT returns after failing to pay the fines imposed by the criminal court. These are summoned before the court and if they are found guilty, they are fined and if they do not pay the fine within the time limit imposed by law, they are automatically, without any notice, sent to prison.
But now the magistrates dealing with this court have another bunch of traders to deal with: those who do not comply with the decisions of the consumer tribunal, irrespective of whether the consumer executes that decision of not. This means that the consumer can do away with enforcing the decision through garnishee orders or seizure warrants, and instead report to the consumer department that he has not been paid and the department is by law now empowered to charge the traders before the criminal court for not obeying the tribunal’s orders.
Not only that, but this is to apply also to the judgements of the Court of Appeal relating to the consumer tribunal decisions.
With this amendment in the law, the trader went two steps backwards. Before the trader was discriminated because his right of appeal was only limited to the principles of natural justice and he could not even appeal on a point of law as in the case of MEP and Industrial Tribunal decisions. Now, he has not only his right of appeal limited but he will be sent to jail for not honouring the decision of the tribunal and the judgment of the Court of Appeal.
Now we have an anomaly in our judicial system: we have decisions of the Court of Appeal which are not a crime and decisions of the Court of Appeal which are a crime. We have judgements condemning parties to pay which are not subject to a crime if they are not observed and other judgements condemning people to pay that are punishable with a crime if people do not pay.
It is no wonder that now people ask whether the trend in this country is to send all debtors to prison because it seems that that is the policy of this government. People do not understand how our Parliament could have approved such a law irrespective of whether the consumer has enforced that decision.
In ‘normal’ judgements, the creditors enforce their decision by means of garnishee order (sekwestru) or warrants of seizure (mandat ta’ qbid); and if they still fail to recoup the debt… all they can do is hang the court judgement in their living room to remind them to be careful the next time round.
In the consumer judgements, the consumers are not obliged to do that: they can ask the police to take action against the traders even though they did not try to execute the decision of the tribunal, in other words, even though they did not make any effort to enforce the decision.
But in the consumer legislation, what is so unfair is that the Consumer department is applying this section in the law, the famous Section 25A, to cases which relate to dates when the law was still not in force and without giving any notice to the traders about the change in the law.
So now the government has made it a crime not to honour the decisions of the consumer tribunal and low and behold, the GRTU is silent on the matter when I know it has been appealing to the Prime Minister to change the consumer law so that the traders will be given a fair hearing, by allowing them to appeal on any point and not restricting their right to appeal on only the principles of natural justice, ie. the right to a fair hearing.
With this amendment, the traders facing the consumer tribunal are worse off than those facing VAT charges: the VAT law makes it a crime if you fail to send the forms in time, but the consumer law makes it a crime if you fail to obey the decision of the consumer tribunal and the court of appeal.
I do not know who had this fancy idea of criminalizing non-observance of civil court decisions and I augur that this idea is deleted immediately from the face of any legislation because it is not a deterrent at law as ultimately it is the taxpayer who ends up paying for their stay in prison. I don’t know what this country is gaining from criminalizing civil debts, as I fail to understand either how certain civil debts are considered to be more equal others.
The situation is very serious indeed as it is another step in the direction that this legislature is going: that of sending all debtors to prison and at the same time allowing such debtors to continue to expand on their business through the flourishing of companies as distinct and separate personalities.
The GRTU and the Chamber of Commerce are duty bound to inform their members on this development in our consumer law: since many of their members are still under the impression that consumer decisions are not enforceable at law. It is true that until some time ago they were not; but now we went to the other extreme of sending traders to jail for failing to honour consumer decisions!
Abroad countries in the EU have separate prisons for white-collar crimes: needless to say these traders in Malta are sent to prison together with the other prisoners. How easy it is to end up in prison nowadays!


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