EMA1311 Introduction to Law and Ethics Notes 2025 PDF

EMA1311 Introduction to Law and Ethics B.COM 1ST YEAR NOTES  DISCLAIMER ASCS does not claim to have authored these past papers, and in no way are they assuring their quality. ASCS is therefore not responsible for any misuse of these past papers, as they are only intended as extra material which ma...

EMA1311 Introduction to Law and Ethics B.COM 1ST YEAR NOTES  DISCLAIMER ASCS does not claim to have authored these past papers, and in no way are they assuring their quality. ASCS is therefore not responsible for any misuse of these past papers, as they are only intended as extra material which may be referred to if required. These past papers are a useful study resource meant to supplement the content provided during lectures, yet they are in no way intended to replace lecture notes or lecturer’s guidance. It is imperative to note that there may have been changes in some study-units, syllabi, and methods of examination over the years, rendering sections of these past examination papers outdated. ASCS does not guarantee that the most recent past paper is available to students due to factors out of their control. These past papers are available to ASCS members only and sharing to third parties is strictly prohibited. Always check relevance with the class notes, lecturer notes, and syllabus available on www.um.edu.mt. Introduction to Law and Ethics Short Notes 1. The Role of Law 3 Governance roles: 1. Orders the behaviour of individuals + organisations (no killing, stealing) 2. Orders those in power (laws regulate how the government ought to be organised - judicial, legislative, executive) 3. Orders contestations (tools to promote accountability, peaceful dispute resolution and human rights) The Law - A code of conduct binding all people within a particular jurisdiction - May be written (derived from legislature) or unwritten (moral code) - May be prohibitions (forbidding certain forms of conduct) or prescriptions (enforcing some code of conduct) - Prohibition: “do not kill”; Prescription: “pay taxes” - The law is needed to (1) Maintain order (2) Ensure predictability (3) Provide security (4) Safeguard the rights and freedoms of its citizens The Rule of Law - Insists that rules apply equally to everyone in a democracy (even powerful government officials) - Ensures that laws are created in an open and transparent process - Everyone has access to the law / No one is above the law - Ensures the adherence of the principles of natural justice Natural Justice requires that a person receive a fair and unbiased hearing before a decision is made that will negatively affect them - No one can be prosecuted without a fair and impartial hearing The 3 distinct yet interrelated meanings of the Rule of Law: 1. No person can be punished or be made to suffer a personal or property loss, except for a clear beach of the law Expropriation: the action by the state or an authority of taking property from its owner for public use or benefit 1 of 27  It is unfair and not within the framework of the rule of law 4. No person is able the law (regardless of race, gender) 5. Decisions affecting personal liberties, result from general principles embodied in a constitution, that are enforced by judges. The Rule by Law (The Rule of the Person) - Contrasts the rule of law - Rule by law: a concept which sees the governing authority as somehow being above the law - Power to create and execute the law however they find it convenient - Used by those in power to shape the behaviour of the people Psychologically or forcefully persuading people to agree with policy decisions - This concept is viewed in “L’état, c'est moi” - Louis XIV King of France (I am the state) "Rex est Lex” - Charles I, King of Great Britain and Ireland (The King is the Law) Principles of Natural Justice - Audi ad Alteram Partem: No person should be judged without a fair hearing in which each party is given opportunity to respond to the evidence against them - Nexo Judex in Causa Sua: No person can judge a case in which they have interest 2 of 27 2. Constitutions - A system which establishes the rules and principles by which an organisation or political entity is governed - Establishes the framework within which governments derive power - May be supranational (EU), national (Malta), and provincial (US states) - The supreme law of the country - A system of checks and balances - ensures that power is not concentrated too heavily - Prevents misuse of power Separation of powers 1. Legislative Parliament (made up of people elected by citizens) May declare new laws, revoke existing laws, or amend existing laws ⅔ must be in favour for a new law to be passed out Laws cannot be against the constitution Laws operate when they are approved by the President of Malta 6. Executive The Prime Minister and his cabinet + Local councils Responsible for the implementation of the laws approved by Parliament. 7. Judiciary Composed of a system of law courts, with the Constitutional Court being the highest one Decides who is guilty and who is not + what type of punishment should be given 3 of 27 In summary the legislative makes the laws; the executive implements them; and the judiciary oversees them. This separation of powers is in effect sjo that no part of government becomes limitless and totalitarian in such a way as to harm democracy. Internal morality Lon L. Fuller proposed 8 minimal conditions in order to count as genuine laws: 1. General (applied to society at large) 8. Clear (easily understood) 9. Prospective (cannot be charged for committing a law which wasn’t enacted) 10. Stable (laws cannot change from one day to another) 11. Not mutually contradictory (2 laws cannot contradict each other) 12. Advance notice given 13. Behaviour must be comfortable (rules must be attainable) 14. Congruence of values and enforcement (rules must be enforced) General, Clear, Prospective, Stable, Comfortable, Enforced, Advance, Contradictory The State - A centralised political organisation that imposes and enforces rules over a population within a territory - 4 characteristics of the state: 1. Population (a group of people) 2. Territory (within a particular jurisdiction) 3. Government 4. Sovereignty (supreme power or authority.) Sovereignty - The underlying philosophy of statehood - The power of a country to control its own government - John Locke developed the notion of natural rights by claiming that “citizens possess natural rights to life, liberty and property - and these rights must be protected by the rules governing through law”. 4 of 27 3. The Classification of Laws Sources of Maltese law: - Constitution - Primary law - Subsidiary law - EU law - Customs Law - Jurisprudence Public vs Private Law Public law: - Relationship between the state and the public - Ex: constitutional, administrative and criminal law - History: mainly based on British law, since we were colonised by them. - The basis of the Maltese constitution is British 5 of 27 Private law - Relationship between individuals and organisation - Ex: civil law, and commercial law - History: Civil law traces its origins to -> Roman law The Code de Rohan Under the order, we had the Code de Rohan (which found its basis in roman law). And our civil law is now regulated by the civil code, which draws heavily from the Code de Napoleon (which is based on the principles of Roman law). Primary vs Secondary Law Primary law: - The actual law in the form of constitutions, court cases, and administrative rules - Examples: Acts of Parliament, Codes (ex: Commercial Code, Civil Code) and Ordinances (laws passed during the time Malta was a British colony) Secondary law: - Law used to fill in the details of primary laws. These details provide measures which enable laws to be enforced in daily life. - Created by ministers, under powers given to them by an Act of Parliament - Examples: Regulations: basic kind of law Orders: ex: limitations of people inside public premises during covid Rules: about how the court operates By-laws: ex: at university or local councils - Other example: The Immigration Act, The MFSA Acts European Union Law EU law is a system of rules operating within the member states of the European Union. The EU's legal foundations are the Treaty on European Union and the Treaty on the Functioning of the European Union, currently unanimously agreed on by the governments of 27 member states - New members may join if they agree to follow the rules of the union, and existing states may leave according to their "own constitutional requirements” Customary law 6 of 27 - Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct - Not written in any particular law - Repeated practices which come to acquire legal significance - The internal psychological conviction that parties are bound as a matter of law Jurisprudence - juris prudentia: case law (the decisions of the court) Malta does not have the doctrine of binding precedent (a common law concept) In the UK, where they have common law they have the doctrine of binding precedent (whatever the superior court decides, binds the inferior courts to decide the same things) The common law system holds mainly that judges are not legislators, but interpreters of the law Judges do not legislate (we do not have judge-made law) Judgments apply and are enforceable only with respect to the parties to the case in which they are delivered The decision of case does not bind everyone - but simply the parties concerned with a case While in theory judgments are not binding on subsequent cases, in practice lower courts are expected to adopt the principles and interpretations of higher courts 4. Governance and Corruption Governance 7 of 27 - A broad concept covering all aspects of how a country is governed (including economic polices, regulatory framework, and adherence to the rule of law) - Poor governance offers greater incentives for corruption - It consists of traditions by which authority is exercised in a country: a) The process by which governments are selected, monitored and replaced b) The process by which government formulates and implements policies c) The respect of citizens and the state for institutions which govern economic and social interactions around them World Bank Governance Indicators a) The process by which governments are selected, monitored and replaced 1. Voice and Accountability (VA) The ability of citizens to participate in selecting their government, plus freedom of expression, freedom of association and free media 15. Political Stability and Absence of Violence (PV) The likeliness that the government will not be overthrown by unconstitutional or violent means (including terrorism) b) The process by which government formulates and implements policies 16. Government Effectiveness (GE) The quality of public services, the degree of independence of political pressures, quality of policy formulation and implementation, and the credibility of the government to commit to such policies 17. Regulatory Quality (RQ) Ability of the government to implement sound policies which permit and promote private sector development. c) The respect of citizens and the state for institutions which govern economic and social interactions around them 18. Rule of Law (RL) The ability of the government to abide by the rules of society, and follow the fundamental structure of the rule of law 19. Control of Corruption (CC) The extent to which public power is exercised for private gain (including both petty and grand forms of corruption. 8 of 27 Corruption - Behaviour which deviates from the formal duties of a public role because of private gains - It undermines the public’s trust in its government, threatens market integrity, distorts competition, and endangers economic development Types of corruption: - Kleptocracy (misappropriating public resources for private benefit) - Smuggling (illegal foreign transactions) - Bribery (both bride taking and offering) - Abuse of power (torture and intimidation) - Tax evasion - Black market operations - Deceit and fraud Characteristics of corruption: - Found in all political systems at every level of government - Varies in origin. Incidence and importance (among geographical regions) - Has many causes - Is deeply rooted, cancerous, contaminating and impossible to eradicate - Facilitated by unstable policies. Uncertain economics and maldistributed wealth - Favours those who have, over those who have not Effects of corruption: - Reduces regulatory ability of the government - Distorts allocation of resources - Is like a new tax - Distorts role of government - Creates poverty Why do people give in to corruption: 1. Psychological (root of corruption is found in the defects of human character) 20. Ideological (religious doctrines preach that all is divinely determined, including corruption) 21. External (corruption is contagious and transcends boundaries - this allows for transactional corruption) 22. Economic (key source of corruption is scarcity - shortages bring out the worst in people) 23. Political (if an official has the power to make a choice and is not bound by regulations, then that is corruption) 9 of 27 24. Sociocultural (internal socialisation and peer pressure ensure that public officials go along with or at least keep quiet about deviance) 25. Technological (faulty technology and faulty administrative systems can be blamed for corruption) 5. Freedom under the Law and Memorandum of Association Jesse Washington: - 17 year old African American farmhand who was lynched in Texas - Convicted of raping and murdering Lucy Fryer - Chained by his neck and dragged out of court where he was stabbed, beaten, castrated and lynched in front of observers - Although Washington committed a horrible crime, the New York Times editorial opined that: “In no other land pretending to be civilised, could a man be burned to death in the streets of a considerable city amid the savage exultation of its inhabitants” “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important” - Martin Luther Kind Jr The US Declaration of Independence - Announced the separation of 13 North American British colonies from Great Britain. It was the last of a series of steps that led the colonies to final separation from Great Britain. - “We hold these truths to be self evident that all men are created equal” The Declaration of the Rights of Man and of the Citizen - A human civil rights document from the French Revolution. - Men are born free and remain free and equal in rights. - These rights are liberty, property, security and resistance to oppression - Article I: Men are born and remain free in equal rights - Article II: The goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression 10 of 27 - Article XVII: Property being an inviolable and sacred right The Universal Declaration of Human Rights - A milestone document in the history of human rights - Drafted by representatives with different legal and cultural backgrounds - It sets out the fundamental human rights to be protected - Translated into over 500 languages - The UDHR not only focuses on general rights such as life, liberty and security - but also matters of property and employment. - Article 1: All human beings are born free in equal dignity and rights - Article 3: Everyone has the right to life, liberty and security of the person Article 17 1. Everyone has the right to own property alone as well as in association with others. 26. No one shall be arbitrarily deprived of his property. The Companies Act - List of legal documents pertaining to legislation under which the formation, registration, governance and dissolution of a firm is administered and controlled. - Article 67: A company is formed by means of capital divided into shares, held by its members. The members’ liability is limited to the amount, if any, unpaid on the shares respectively held by each item. - Article 68: A company cannot be constituted under the company’s act unless a Memorandum of association is entered into. The 7 basic concepts of a company 1. At least 2 shareholders - subject to the exception of a single member company 27. Formed of a share capital divided into shares of a fixed amount 28. Must have a constituent document which is composed of the memorandum of association and the articles of association and it must be registered with the registrar of companies (Malta Business Registry) 29. There must be the general meeting and board of directors 30. Separate judicial personality 31. Limited liability The Memorandum and Articles of Association 11 of 27 - 2 separate and distinct documents - which form the company’s core constitutional documents - Memorandum: sets outs the company’s basic and fundamental information (share capital information, key persons involved in the company) - Articles: provides rules for the governance and internal regulation of the company (such as by-laws of the company) Memorandum must include: 1) Whether the company is public or private 2) The name and residence of each shareholder 3) The name (and identification) of the company 4) The registered office in Malta e-mail 5) The objects of the company, specifying the main trading activity 6) Share capital - Every company must state the amount of share capital with which the company must be registered, the number of shares taken by the subscribers, the nominal value of the shares and the amount paid up on those 7) The number of the directors, the name and residence of the first directors and, where any of the directors is a body corporate, the name and registered or principal office of the body corporate, the manner in which the representation of the company is to be exercised, and the name of the first person or persons vested with such representation; 8) The name and residence of the first company secretary or secretaries, or where a company secretary is a body corporate, the name, registration number and registered office of the body corporate 9) The period, if any, fixed for the duration of the company. 6. The Enactment of Laws In Malta, parliament refers to the president and the House of Representatives (which are elected by members of the public). The legislative process in Malta entails the following: 1. The First Reading 32. The Second Reading 33. The Committee Stage 34. The Report Stage 35. The Third Reading 36. The Voting Stage The First Reading - Motion is presented in the form of a title or a bill - This may be a proposal for a new law, or an amendment of an existing law) - Member presenting it will seek authorisation to publish the bill 12 of 27 - If granted, a vote without debate will occur - If bill passes this stage, minister responsible for particular sector will present the draft bill to Cabinet before publishing it - Bill may also be presented by a single member of the House of Representatives (Private member’s bill) The Second Reading - If the provisions of the bill constitute charge on Consolidated Fund - recommendation of the President is required - Member piloting the bill must explain purpose of the bill and policy involved - Debate limited to principle of the bill (i.e. purpose of the bill & proposed means of giving it effect) - Vote is taken Committee Stage - House of Representatives resolves itself into a committee - Bill may be considered by the Standing Committee for the Consideration of Bills - only if bill does not involve charge on the Consolidated fund - Bill is examined in detail, clause by cause - Vote is taken Report Stage - Chairperson of the Committee informs the House of Representatives about the progress of any amendments discussed In Committee stage - This may lead to further amendments The Third Reading - Bill reviewed in final form and vote is taken - Bill referred to President for his assent - Then published in the Malta Government Gazette - Law only becomes operative once it is published (public must have access to the law) Voting Stage Different laws require different voting methods - Ordinary Law Normal law which is subordinate to constitutional Requires simple majority to be enacted Simple majority: 50% of those present and voting + 1 additional person - Constitutional laws 13 of 27  Constitutional law forms part of the constitution Absolute majority: 50% + 1 of the whole House of Representatives must be present to vote Qualified majority: ⅔ of all members OR ⅔ of all members + referendum Article 66 Subsidiary Legislation - Primary Legislation: an act passed by parliament - Secondary Legislation: makes changes to existing law (i.e. subsidiary leglislation must ow its existence to another law) - May be in the form of regulations, rules, orders and by-laws - Is always published by means of a legal notice in the Government Gazette - May be made by a minister, prime-minister, commissioner of police, and superintendent for public health - Drafted by the respective department, ministry or authority or a local council - May be retrospective (dealing with past events) but no punishment may be imposed on any person before this. - Delegatus non potest delegare: "no delegated powers can be further delegated.” Prior Consultation The presentation of a bill, or the making of subsidiary legislation may be preceded by Green Papers or White Papers: Green Papers - The first step towards legislation - Consultation documents produced by the government when a new law is considered being introduced - Purpose: to create debate on policy without actually committing to any specific action - The aim is to allow people of all areas to debate on the subject and give authority feedback on its suggestions White Papers - More authoritative report - Documents produced by the government, setting out details and more definite intention of future policy on a particle subject. - Sets out discussion for proposals which are still at a formative stage 14 of 27 - Allows the government to gather feedback before it is formally presented as a Bill 7. The Maltese Courts Criminal wrongs - Body of law dealing with the crime and legal punishment of criminal offences - Action against criminal law: vested in the State, prosecuted in the name of the Republic of Malta, through Executive Police or the Attorney General - Prosecuted ex officio (without the need of a complaint) - Criminal standard of proof: ‘beyond reasonable doubt’ (ie a legal burden of proof is required to affirm a conviction in a criminal case) - Criminal laws not equal to moral laws - Criminal laws involve material (actus reus) and formal (mens rea) - the act of the person and the guilty mind (intent) - Crimes (fines (multa) and imprisonment) and contraventions (fines (amend) and detention (rare)) Crimes involve more harsh offences and contraventions are minor ones Civil wrongs - Deals with disputes between individuals, organisations or between the two, in which compensation is awarded to the victim - Civil wrongs are not about punishment. They are about claiming a right (getting what is yours, or compensation for injuries suffered) - Civil standard of proof: balance of probabilities (ie a dispute must be decided in favour of the party whose claims are more likely to be true) 1. Introduction to Ethics 15 of 27 What is ethics? - It is about what we ought to do and what we ought not to do - It is concerned with good and bad, right and wrong, just and unjust - and the difference between all of them - “Ethics is the difference between what you have a right to do, and what is right to do” Ethics and morality - Both distinguish the difference between good and bad, and right and wrong. - Morality: personal and normative - Ethics: standards of ‘good’ and ‘bad’ distinguished by the external community Morality Ethics Personal principles regarding right and wrong Rules defining right and wrong, provided by an external source (ex: religion) Rarely change May vary depending on environment Influenced by society, culture, religion Influenced by profession, field, organisation An overlapping facet of both morality and ethics, is the goal to find the difference between right and wrong. Norms, standards, principles, and values Norms: shared rules of ideals about how people should act or behave in specific contexts Standards: approved model of morals, ethics and habits established by authority, custom or an individual as acceptable Principles: accepted rules of action or conduct. Accepted as true across a specific context and are intended to guide practice. Values: general guidelines of conduct which vary across different cultures Values and principles tend to be more broad, and less defined. Norms and standards are clear guidelines which specify codes of conduct Norms Values Accepted standards of behaviour Principles which help you decide what is right and wrong Specific guidelines General guidelines Vary from society to society Vary from individual to individual 16 of 27  Norms Values Ex: covering your mouth when coughing Ex: honesty, integrity, fairness Types of Ethics 1. Individual - Ethical code regulating an individual’s behaviour - Developed in upbringing through family, society and culture - May be shaped by certain life events, and lost over time - Breaches may be subjective - Ex: kindness, integrity, fairness 37. Professional - Ethical code regulating a specific profession - Related to how the duties of that profession are ought to be dispensed - Breaches may be accompanied by a revoked warrant or license - Ex: In the medical profession; autonomy for the patient, do no harm etc. 38. Organisational - The ethos of a company or organisation - Breaches include Non-compliance with rules Criminal activity Damaging the reputation of the organisation 6 stages of moral development 1. Obedience and punishment - Sticking to rules to avoid physical punishment - Behaviour is determined by consequences. 2. Self interest - Following rules only when doing so is in your immediate interest - The individual focuses on receiving rewards or satisfying personal needs. 3. Interpersonal accord and conformity - Living up to what is expected by people close to you - Internally motivated by faithfulness to other individuals and by a desire to live up to what is expected by significant others. 4. Authority and maintaining social order 17 of 27 - Maintaining conventional order by fulfilling obligations to which you have agreed - Social rules and laws determine behaviour 5. Social contract - Valuing rights of others and upholding absolute values and rights - Weighing certain rights, morals, and legal principles against the greatest good for the greatest number of individuals 6. Universal ethical principles Following self chosen ethical principles even if they violate the law - Stage 1+2: Preconventional - Stage 3+4: Conventional - State 5+6: Post Conventional 18 of 27 2. Ethics, Society and Public Policy Types of ethics 1. Meta-ethics: Explores the standards for the rightness and wrongness of actions 39. Descriptive (comparative) ethics: An empirical investigation of people’s moral beliefs 40. Normative (prescriptive) ethics: Studies the meaning of moral language 41. Applied ethics: Describes how people should act in specific scenarios (ex: medical professional ethics) Normative (prescriptive) Ethics - Concerned with the content of our moral judgments - A branch of philosophical ethics which investigates the questions that arise regarding how one ought to act (in a moral sense) - 3 types of normative ethics: 1. Consequentialism - A theory of morality that derives duty or moral obligation from what is good or desirable as an end to be achieved - Morally good action = the one having the best possible consequences if compared with other actions. - The greatest good for the greatest number - The ultimate basis for judgment about the rightness or wrongness of that conduct - is its consequence 19 of 27 7. Deontology - ‘Deon’ - duty - Actions are good or bad according to a clear set of rules - Emphasis on the relationship between duty and the morality of human actions - An action is considered morally good because of some characteristic of the action itself, not because the product of the action is good. 8. Virtue ethics (focuses on character) - An alternative to both deontological and consequentialist ethics - Person rather than action based - Concentrates on what kind of person one should be and become, and what virtues should she possess. - Ethics is not about rules or actions but about personal character and traits Virtues - An approach that deemphasises rules, consequences and particular acts and places the focus on the kind of person who is acting. - Focus is on person’s character - the totality of his character traits. - Character traits are: 1) Habit-like tendencies that are deeply entrenched (ie second nature) 2) Not innate (infants are not born racists) 3) Formed as a result of freely selected actions, of a certain kind (we become liars by repeatedly lying) Moral virtues refer to admirable character traits (which contribute to social harmony). They: - Enable us to act in accordance with reason - Enable us to feel appropriately Categorical imperatives vs Hypothetical imperatives - Categorical imperatives are commands you must follow, regardless of your desires and motives. Ex: Thou shalt not steal - Hypothetical imperatives are moral commands that are conditional on personal desire or motive. Ex: Do not steal if you want to be popular 20 of 27 3. Standards in Public Life Public Ethics - The practical implementation of ethical standards by public officials, whereby the public good is placed before private interest - in accordance with the law. Thus, the confidence and trust of citizens in the action and decisions of public officials and organisations is maintained and strengthened, - Public organisation: A company or similar entity, managed or financed by the State 21 of 27 - A public official includes people who are: - Elected to a public mandate (ex: members of national and regional governments, legislatures, etc) - Employed by a public organisation - Act on behalf of public organisation without having been elected Conflict of interest - Sometimes, public officials may be in a position whereby they have a private interest which will influence the objective performance of their duties. - Private interest includes any actual, potential or perceived advantage to themselves or to any connected persons (ex: spouse, civil partner, family, children, parents) Principles of Public Ethics 1. Legality: make decisions in accordance with the law 42. Integrity: put their obligations of public service, above private interest 43. Objectivity: make decisions impartial and fairly without discrimination 44. Accountability: hold themselves accountable for their actions 45. Transparency: act and take decisions in an open, transparent manner 46. Honesty: should be truthful 47. Respect: should behave with courtesy and consideration 48. Leadership: demonstrate the principles of public ethics in their own behaviour The Commissioner for Standards in Public Life - Appointed by the President on the basis of a resolution of Parliament (which must be supported by ⅔ of all members of Parliament) - His role is defined by the Standards in Public Life Act (chapter 570 of Constitution) - The Standards in Public Life Act gives the Commissioner jurisdiction over: i) Members of Parliament (ministers and parliamentary secretaries) ii) Persons of trust (consultants or staff in the secretariats of ministers or parliamentary secretaries) - The commissioner can examine the declaration of assets and interests made by members of Parliament & ministers - in terms of the relevant code of ethics - He can also make recommendations for the improvement of the relevant codes of ethics and regulation of such matters Code of Ethics - Members of Parliament Any member of the House of Representatives shall: - Both inside and outside of the House, conduct himself in a manner which reflects the Status and Dignity of the House 22 of 27 - Adhere to the spirit and rules of the House - May not receive any remuneration or compensation for his work, except for his official remuneration as a member - Not use any improper influence, threats, or undue pressure in the course of his duties - Shall not accept gifts from persons who had any direct or indirect intent in leglislation Code of Ethics - Ministers and Parliamentary Secretaries - Ministers are individually responsible to Parliament for their decisions, policies and actions - Shall provide correct information to Parliament - Open to providing information to the public in general - Shall ensure that government departments which fall within their ministries are managed well + prudently - Shall ensure there is no conflict of interest between their public duties and their personal interests - Shall not accept any gifts or benefits except as provided in the code - Shall respect the principle of political impartiality of the public service Examples of public officials: - Matt Hancock (Secretary of Health - UK) resigned after breaching covid-19 restrictions - Eliot Spitzer (Governor of New York) resigned after misappropriating funds to pay for escort services - Katie Hill (Congresswoman) resigned after leak of nude photos 23 of 27 4. Professional Integrity What is a professional - The meaning of professionalism is always changing. - “A set of interconnected institutions, providing the economic support and social organisation that sustains the occupational control of work” Friedson views professionalism as a third logic, which is - Different from market logic - Different from organisational logics - Serves as a means of controlling the practitioner Friedson proposes the ideal types of professionalism: 1. Professional knowledge and skill (the knowledge of what a profession does) 49. Division of labour (sports psychologist is able to focus on more complex unique situations) 50. Ideologies 51. States and associations 52. Bodies of knowledge (built by professionals) Ideology - A social philosophy in which practical elements are as prominent as theoretical ones - A system of ideas that aspires both to explain the world and to change it Hamilton states that there are simply too many elements in ideology. Thus, ideology eludes definition. Organisational vs occupational professionalism Evetts outlines 2 different forms of professionalism - Occupational professionalism: What a specific profession stands for - Organisational professionalism: What an organisation expects from a profession(al) Organisational Professionalism Occupational Professionalism Discourse of ‘control’ used increasingly by Discourse constructed within professional managers in work organisations. groups 24 of 27  Organisational Professionalism Occupational Professionalism Rational legal forms of authority Collegial authority (authority based on shared knowledge of people within the profession) Standardize proceduress Discretion and occupational control of the work Hierarchical structures of authority and Practitioner trust by both clients and decision-making employers Managerialism Controls operationalised by practitioners Accountability and externalised forms of Professional ethics monitored by institutions regulation, target-setting and performance and associations review Linked to Weberian models or organisation Located in Durkheim’s model of occupations as moral communities Professional integrity Eriksen states that: “Integrity is widely regarded as a key virtue for professionals”. 2 main kinds of reasons are commonly offered to explain the value added to professional integrity: 1) Fidelity to the fundamental goals of the role (ex: loyalty to profession-specific decisions - especially in the case of the medical field) 10) Assurance (professional integrity is the reason which gives us reason to trust role holders to place professional standards above private interest) Eriksen viewed professional integrity in 3 different ways 1. Teleological View - Describes professional integrity as a commitment to key ends of professional practice (i.e. education or health) - A good example is voluntary euthanasia. Even if it would be best to grant the patient their autonomous request to be killed, doctors do not feel they act on this. This highlights the difference between professional and personal ethics. 53. Generic View - This contrasts teleological view - Professional integrity is a virtue which gives us a reason to trust a professional. 54. Interpretive View - Outlined by Eriksen, in opposition to the other 2 views 25 of 27  - Characterises professional integrity as a mode of reasoning that called for the role holder to engage critically and creatively with the varied and sometimes conflicting demands of practice. Dominic Cummings was reported to have travelled to his parents’ farm during the COVID-19 pandemic lockdown, with symptoms. Obeying lockdown rules is both a case of personal and professional integrity, in his case. 5. Social Science & Ethics What is Social Science - The study of human society and social relationships - It encapsulates many fields such psychology, sociology, anthropology - We can use these tools to understand how human beings act in an occupational context Naive Realism - Elizabeth Newton - Assigned 2 roles to people: ‘tapper’ and ‘listener’ - Tapper has to pick a well known tune and tap it on a surface - for listeners to guess the song - The tappers were asked to guess the percentage of listeners of people who would guess the songs. - % of songs guessed by listeners was only 2.5% - even though tappers predicted higher percentages - Naive realism: the tendency to believe that we see the world around us objectively, and that people who disagree with us must be uninformed, irrational, or biased. Qualitative vs Quantitative methodology Quantitative methodology: - Systematic investigation 26 of 27 - Involves mathematical techniques - Considers objectivity in research to be both possible and desirable - Involves hypothesis testing - Generalisation of findings to the entire population (from a given sample) is a priority Qualitative methodology - Focuses on quality and not numerical data - Subjective meaning is important here - The point is to gather in-depth data on humans or particular phenomenon - Generalisation of findings not necessarily a priority - Sound descriptions of patters of human perception/behaviour Different Methods There are different forms by which we can see work about ethics 1. Desk based (schematic) 55. Desk based (critique) - analysing components of a notion 56. Empirical approaches (ex: surveys) 57. Empirical approaches aimed at shifting behaviour/intentions 58. Experiments (causality, behaviour, processes) Public Goods vs Common Goods Public Goods - Available to all - Others cannot be prevented from enjoying them (non-excludable) - Equally beneficial for users who have paid, and those who have not contributed to their financing (or have contributed to a lesser extent) - Use of public goods does not diminish their value or availability (non-rivalrous) Common Goods - Available to all at no cost (non-excludable) - Promotes benefit for all (non advantaging any one group or class), but if one person uses these resources, it reduces another person’s availability to them (rivalrous) - Example: fishing, forest, beaches 27 of 27  EMA 1311 Introduction to Law and Ethics Week 1 [Law] Introduction - What is the role of law? What is the role of law? Why is it there? Do we really need laws? How do they affect us in our daily lives? Why should we bother with understanding the concept of law and the Rule of Law? After all this is FEMA, not the Faculty of Laws? These are some questions that will be tackled in this introductory lecture and which will set the scene for the first part of this course. We shall explore how the concept of law, which at face value seems oppressing, in reality has a liberating effect both in terms of the protection of rights, as well as good governance. Today we will be discussing the role of law in our society. What is law? Why is it there? Do we really need it? What is law? 3 governance roles 1. Orders the behaviour of individuals and organisations Converts policies into outcomes E.g., No killing, no stealing, no insider trading, parameters for social services, etc. 2. Orders power Organises structures within the state. E.g., Parliament, courts, government departments, army etc. 3. Orders contestations Provides tools to promote accountability, peaceful dispute resolution and how to change the rules E.g., Enforcing of rights, enforcing of contracts, challenge government, etc. Rule of Law Vs. Rule by Law “The rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights norms and standards.” Rule OF Law means that no one is above the law, and any law that is broken should be equally punishable across the board, regardless of status in society or the local community. Rule BY Law is a concept that sees the governing authority as somehow being above the law, and has the power to create and execute law where they find it to be convenient, despite the effect it has on larger freedoms that people enjoy. Rule by law is a method that governments and people in power use to shape the behaviour of people, and in terms of governing a country, mass groups of people. This usually has the end goal of psychologically or forcefully persuading people to agree with policy decisions they otherwise would not agree with. Principles of Natural Justice 1. Audi ad Alteram Partem No person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. 2. Nemo Judex in Causa Propria/Sua No person can judge a case in which they have an interest. The sinister face of democratic legitimacy Mccarthyism: Persecution of suspected subversives and/or minorities Deception of scrutineers, subversion of constitutional checks and balances Suspension of legal safeguards on liberty and dignity of the person or of groups Corruption, appropriation of state or private assets for private/partisan gain, erosion of trust in integrity of state officials and political processes. The three powers of state The three powers of the state refer to the distinct branches of government that ensure the preservation of a constitutional democratic system. These powers are: Legislative power: This is the power to make laws. The legislative branch of government, typically the parliament, is responsible for passing laws that govern the country. Executive power: This is the power to enforce laws. The executive branch of government, typically headed by the President or Prime Minister, is responsible for carrying out the policies and laws established by the legislative branch. Judicial power: This is the power to interpret laws. The judicial branch of government, consisting of the court system, is responsible for interpreting the laws and resolving disputes between citizens and the government. These three powers are typically separated to ensure that no one branch of government has too much power, and to prevent the abuse of power. The idea behind this concept is to create a system of checks and balances, where each branch can limit the power of the other branches to maintain a balance of power. Week 2 [Law] Constitutions The discussion focuses on the teachings of Albert V. Dicey and Lon L. Fuller, which pave the way for our understanding of the law being administered and dispensed by those instruments found in a constitution. We shall also examine notions of statehood, sovereignty and constitutionalism Today’s agenda Explore other possible definitions of the Rule of Law Albert V. Dicey Lon L. Fuller Starting to think in terms of State Constitutionalism Three distinct yet clearly interrelated meanings of the Rule of Law No person can be punished or be made to suffer a property or personal loss except for a clear breach of the law No person is above the law Decisions affecting personal liberties result from general principles embodied in a constitution that are enforced by judges. Internal Morality Legal rules must meet eight minimal conditions in order to count as genuine laws. 1. Rules must be general 2. Rules must be clear 3. Rules must be prospective 4. Rules must be stable 5. Rules must not be mutually contradictory 6. Advance notice given 7. Behaviour must be conformable 8. Congruence of values and enforcement Codified Laws. Code of Ur-Nammu Sumerian Civilisation 2100 – 2050 B.C. Code of Hammurabi Babylon c. 1754 B.C. The Sinai Covenant (1800 – 1500 B.C.) (Exodus 19-24) Immediate sequel of the Exodus Covenant at Sinai Given the Law, inscribed on tablets Ratification by the People Some lessons of the Sinai Covenant The Law constitutes a free People The Law is enduring, life-giving and liberating The Law is independent of any one leader’s will and whim The Leader is subordinate to the Law The Law is clear, definite, communicated to the People and freely accepted by them The Law regulates public affairs and private life The Law requires administrators and interpreters – stewards of the law-giver The State The state is a political community formed by a territorial population subject to one government Article I of the Montevideo Convention on the Rights and Duties of States posits that “the state as a person of international law should possess the following qualifications: A permanent population A defined territory Government, and –  Capacity to enter into relations with other states” Sovereignty Sovereignty is the underlying philosophy of statehood Sovereignty in the modern state is limited by notions of contract and consent John Locke developed the notion of natural rights by claiming that “citizens possess natural rights to life, liberty and property and that these rights must be protected by rulers governing through law” In the modern state, the power of the rulers is limited and clearly defined through a framework of law. Purposes of a Constitution To regulate domestic affairs To establish relations abroad To regulate relations between individual citizens and the state To regulate relations between institutions and the state/ State Established o Establishes the state and state symbols o Provides directives over principles of state policy Citizenship o Defines who qualifies for citizenship o Fundamental Rights and Freedoms Interaction between state institutions o Sets up institutions such as Parliament, Government, the Judiciary and other entities The separation of powers according to our Constitution Supremacy of the Constitution “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” – Constitution of the USA “If any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law, to the extent of the inconsistency be void” – Constitution of Malta Delhi Declaration on the rule of law - 1 A legislature that is representative Responsible government Assurance that errors and abuse of power will bring consequences to public officials  Minimum standards for legislation - drafting, content, reasonableness, enforceability Delhi Declaration on the rule of law - 2 Delegated legislation to be subject to judicial review on a case-by-case basis Investigation of and remedies for maladministration Independent administrative tribunals Week 3 [Law] The Classification of Laws In this session we will delve briefly into the legal history of Malta in order to gain a better understanding of the hierarchy of laws and their classification. The Classification of Laws Sources of Maltese Law Constitution Primary Law (Consolidated in Chapters) Secondary/Subsidiary Laws (Delegated Legislation) European Union Law International Conventions Custom Jurisprudence (Court Judgements) Public vs Private Law Public Law – (Relationship between the state and the public / citizens, and the various organs of the state) Constitutional Administrative Criminal Private Law ((Relationship between the individuals / citizens) Civil Law Commercial History / Background: Malta is a mixed legal system Private Law Civil Law system that traces its origins to Roman Law 1784 - Code de Rohan - adapted Roman law to the particular circumstances of Malta (would refer to Roman Law in case where it was unclear) 1804 – Code Napoleon - a highly influential legal reform which was modern and which re-popularised Roman concepts of law While the British have a common law system, upon their arrival, the Roman Civil Law was still retained Public Law Mainly based on British Law but it has a variety of sources which reflect Maltese history. Constitution Pronounces and declares national territories, values, identity and principles Establishes and defines the Parliament and sets its only limitation to legislative power Enshrines Fundamental Rights and Freedoms of the Individual Establishes and defines other important branches and offices integral to the very constitution of Malta and necessary for its proper functioning and the Rule of Law and the Separation of Powers. Including: Executive (the Cabinet of Ministers, Prime Minister, Attorney General, Permanent Secretaries and Heads of Government Departments) Judiciary (the Courts, Judges, Magistrates, and the Commission for the Administration of Justice) Others: The Public Service Commission, Auditor General, Broadcasting Authority, Electoral Commission, Employment Commission and Ombudsman. Supremacy of the Constitution: Primary Law (Consolidated in Chapters) Acts of Parliament Ordinances Codes (5): Criminal Code (Cap. 9) Code of Police Laws (Cap. 10) Code of Organization and Civil Procedure (Cap. 12) Commercial Code (Cap. 13) Civil Code (Cap. 16) Many Acts of Parliament today restrict themselves to broad issues of principle and policy by providing a legal framework law – Skeleton law May contain what are known as Henry VIII clauses – power given to a person or body to amend the primary law Secondary/Subsidiary Laws (Delegated Legislation) Regulations Orders Rules By-Laws Acts of Parliament normally delegate the administrative and technical details to some other person or body that are responsible for carrying the Act into effect. Secondary/Subsidiary Laws (Delegated Legislation) – Practical use: Normally relate to matter to is too technical to be appreciated, understood and discussed in parliament (there are instances where the Minister is required to consult an authority before make the regulations)/ Ability to react to changing circumstances Adapt into concreteness the fundamental principles of the law Leaves some ’breathing space’ to the government/administrative machinery in the application of the law Secondary/Subsidiary Laws (Delegated Legislation) - Examples The Immigration Act (CAP217) The Malta Financial Services Authority Act (CAP330) European Union Law Since Malta’s accession to the European Union in 2004, the acquis communitaire and future EU regulations prevail over domestic legislation and E.U. directives have to be incorporated in domestic legislation. International Conventions, Treaties and Multilateral or Bilateral Agreements: Bind Malta (Politically or Legally) as a state not Citizens unless given effect by, or transposed into, national law: E.g.: European Convention on Human Rights (European Convention Act (Cap. 319)) The Treaty On European Union (European Union Act (Cap. 460)) These are given precedence over national law by parliament. Non-compliant national laws, acts or decisions may be challenged: Court Justice of the European Union (CJEU) European Court of Human Rights (ecthr) Custom (Customary law) Not written in any particular rule or law Repeated practice that comes to acquire legal significance Requirements: A constant repeated practice of behaviour over a period of time The internal psychological conviction that parties are bound as a matter of law Recognized only in specific areas, such as (E.g.): Court (Art.1009. Of the Code of Organization and Civil Procedure (CAP.12) – “Any usage or custom contrary to or inconsistent with the provisions contained in this Code shall be of no effect.” Commercial (Art. 3 of the Commercial Code (CAP.13)) – “In commercial matters, the commercial law shall apply: Provided that where no provision is made in such law, the usages of trade or, in the absence of such usages, the civil law shall apply.” Jurisprudence (Court Judgements) Malta does not have the doctrine of binding precedent (a common law concept) The common law system holds mainly that judges are not legislators, but interpreters of the law Judgments apply and are enforceable only with respect to the parties to the case in which they are delivered While in theory judgments are not binding on subsequent cases, in practice lower courts are expected to adopt the principles and interpretations of higher courts. Week 4 [Law] Good Governance and Corruption We tend to hear a lot about governance and corruption, but what do these terms really mean? Are they that important? How do they affect the life of citizens and businesses? During this session, we will be exploring salient features of governance, especially 'good governance', as well as delve into the possible causes and effects of corruption. What is Governance? “the exercise of economic, political and administrative authority to manage a country’s affairs at all levels. It comprises the mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences” Governance is a broad concept covering all aspects of how a country is governed, including its economic policies, regulatory framework, and adherence to rule of law. Poor governance offers greater incentives and more opportunities for corruption—the abuse of public office for private gains. Corruption undermines the public’s trust in its government. It also threatens market integrity, distorts competition, and endangers economic development. Governance consists of the traditions and institutions by which authority in a country is exercised. This includes; a. The process by which governments are selected, monitored and replaced; b. The capacity of the government to effectively formulate and implement sound policies; c. The respect of citizens and the state for the institutions that govern economic and social interactions among them. World Bank Governance Indicators A. The process by which governments are selected, monitored, and replaced: Voice and Accountability (VA) – capturing perceptions of the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media. Political Stability and Absence of Violence/Terrorism (PV) – capturing perceptions of the likelihood that the government will be destabilized or overthrown by unconstitutional or violent means, including politically‐motivated violence and terrorism. World Bank Governance Indicators B. The capacity of the government to effectively formulate and implement sound policies: Government Effectiveness (GE) – capturing perceptions of the quality of public services, the quality of the civil service and the degree of its independence from political pressures, the quality of policy formulation and implementation, and the credibility of the government's commitment to such policies. Regulatory Quality (RQ) – capturing perceptions of the ability of the government to formulate and implement sound policies and regulations that permit and promote private sector development. C. The respect of citizens and the state for the institutions that govern economic and social interactions among them: Rule of Law (RL) – capturing perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence. Control of Corruption (CC) – capturing perceptions of the extent to which public power is exercised for private gain, including both petty and grand forms of corruption, as well as "capture" of the state by elites and private interests. Corruption ‘Behaviour which deviates from the formal duties of a public role because of private-regarding (personal, close family, private clique) pecuniary or status gains; or violates rules agains the exercise of certain types of private-regarding influence.’ (Nye, 1967, quoted in Caiden et al, 2001) A wide range of unacceptable behaviours Bribe-taking or offering (petty or grand) Trading in influence for improper gain Conflicts of interest in regard to official decisions Misappropriation of public resources for private benefit Exercise of undue influence on public officials by means of threat or inducement The Spread of Corruption Greed creates occasional corruption o Sporadic episodes (e.g. Bidders seeking unfair advantage) Opportunity leads to systemic corruption o Paying of bribes becomes socially acceptable Need, and sustainable corruption o One needs to bribe in order to obtain licence, win contracts More greed leads to destructive corruption o Sight of people getting rich stimulates greed. Officials seek greater bribes, Politicians distort policies for personal gain, Public anger leads to political unrest Effects of corruption Public affairs distorted in favour of the wealthy and the powerful Endemic poverty – ‘idle wealth’ instead of ‘active capital’ An impoverished public realm Arbitrary use of power Absence of legitimacy Chronic injustice Likely to increase public investment, but to reduce its productivity - inflated prices of public procurement, increase in government subsidies, cost over runs of capital projects Reduces public revenue Distorts markets and allocation of resources as; o Reduces regulatory ability of government o Distorts incentives to work in favour of rent-seeking – Is like a new tax – Disrupts flow of market when not centralised o Distorts role of government o Getting out of obligations o Delegitimises market and democracy itself  o Creates poverty Contributory factors Psychological – greed, selfishness, lust for power Ideological/cultural – ‘fate’, unrestrained competition External opportunities or inducements Economic – endemic poverty, inequality, or sudden, generalised affluence Political/administrative – officials act as ‘gatekeepers’ to scarce public goods; traditions of immunity and impunity ‘Technological’ – poor design of internal controls; weak supervision, etc Why do people give in to corruption? 1. Psychological Human nature, some set examples and some are mean Former are victims, latter are victimisers Victimisers coerce the weak into giving in to corruption – The weak will find themselves sucked in corrupt conduct against their will Root of corruption found in defect of character Few are above temptation. 2. Ideological Ideologies that endorse corruption or prevent remedial action Religions that preach Predestination believe that everything is predetermined o The doctrine that God in consequence of his foreknowledge of all events infallibly guides those who are destined for salvation Other ideologies are about winning at all costs “The end justifies the means.” 3. External Corruption is contagious, transcends boundaries Smuggling Multinational Corporations with voracious appetite for new business – Globalisation has greatly increased the possibility of transnational corruption 4. Economic Scarcity is clearly a key source of corruption Temporary shortages bring out the best and worst in people Permanent shortages provide no second chances, thus survival of the fittest High Taxation Low Public Sector Wages 5. Political Public officers are powerful because they determine in large part personal fortunes of everyone affected by their decisions. (example tax rulings) If official has the power to make a choice, i.e. Has a degree of discretion and is not bound by regulations, and the choice is influenced by reword, then it is corruption When the masses are excluded from public life extra-legal ways have to be found to influence public decisions Both in dictatorship or where public officers are not chosen through competitive means The higher the official, the more serious is corruption Why do people give in to corruption? 6. Sociocultural If the common good is not your aim, then there is conflict of loyalties – Partisan advantages Party financing Group advancement and self-gratification Internal socialisation and peer pressure ensure that public officials go along with or at least keep quite about deviance  Once corruption exists, it spreads through inaction, accommodation - abetted by complacency, naiveté and lethargy 7. Technological Faulty technology and faulty administrative systems can be blamed for allowing corruption Faulty technology can keep corruption unseen and unknown, hence undetected Loopholes can be exploited Open to hacking Week 5 [Law] Freedom under the Law and Memorandum of Association By now we learnt that law is the tool by which societies regulate themselves and the relations between their members, be they citizens or entities set up by the same society. But is law an instrument of oppression or of freedom? In this session, we will explore why it is important that laws define the fundamental rights and freedoms to be enjoyed. We shall focus on the right to the enjoyment of one's property and then, by recalling constitutionalism, we shall discuss briefly the formation of new companies. Jesse Washington Lucy Fryer, white wife of a cotton farmer was found dead in her house in Robinson, Texas on 8th May 1916 17-year-old black farmhand Jesse Washington (both illiterate and intellectually disabled) arrested He admits to raping and murdering her Trial by jury took place in Wacko, Texas on 15th May 1916 12 white jurors took only 4 minutes to find him guilty 15,000 – 20,000 people waited for Washington to be brought out of the court room They tied a chain around his neck Tortured and lynched him for two hours o Beating and stabbing o Castration o Amputation of fingers  o Doused in fuel, hung from a tree over a bonfire and was slowly lowered onto it o Body parts removed and sold as souvenirs US Declaration of Independence We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. Declaration of the Rights of Man and of the Citizen - 1789 Article I – Men are born and remain free and equal in rights. Social distinctions can be founded only on the common good. Article II – The goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression. Article III – The principle of any sovereignty resides essentially in the Nation. No body, no individual can exert authority which does not emanate expressly from it. Article XVII – Property being an inviolable and sacred right, no one can be deprived of private usage, if it is not when the public necessity, legally noted, evidently requires it, and under the condition of a just and prior indemnity. Universal Declaration of Human Rights - 1948 Article 1 - All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 3 - Everyone has the right to life, liberty and security of person. Universal Declaration of Human Rights - 1948 Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests. How a company is constituted, Companies Act, Cap 386 67. A company is formed by means of a capital divided into shares held by its members. The members’ liability is limited to the amount, if any, unpaid on the shares respectively held by each of them. 68. A company shall not be validly constituted under this Act unless a memorandum of association is entered into and subscribed by at least two persons, or in the case of a single member company […], by the single member, and a certificate of registration is issued in respect thereof. The Seven Basic Concepts of a Company A company should be composed of at least two shareholders subject to the exception of a single-member company A company is formed of a share capital divided into shares of a fixed amount. A company must have a constituent document which is composed of the memorandum of association and the articles of association and it must be registered with the registrar of companies (Malta Business Registry) and a certificate is issued. There are two principal company orders, the general meeting and the board of directors The company has a separate juridical personality The company has limited liability Memorandum and Articles of Association The Memorandum and Articles of Association are the constitutive documents of the Company. They are two different documents. The Memorandum concerns primarily the interest of both the relationship between shareholders and 3rd parties while the articles concern only members of the Company. Also, the law requires the memorandum to contain a number of clauses but it does not identify the clauses to be inserted in the articles. 69. The memorandum of every company shall state: a. Whether the company is a public company or a private company (plc vs limited or Ltd) b. The name and residence of each shareholder c. The name (and identification) of the company; d. The registered office in Malta and email; e. The objects of the company, specifying the main trading activity f. Share Capital – Every company must state the amount of share capital with which the company must be registered, the number of shares taken by the subscribers, the nominal value of the shares and the amount paid up on those g. The number of the directors, the name and residence of the first directors and, where any of the directors is a body corporate, the name and registered or principal office of the body corporate, the manner in which the representation of the company is to be exercised, and the name of the first person or persons vested with such representation h. The name and residence of the first company secretary or secretaries, or where a company secretary is a body corporate, the name, registration number and registered office of the body corporate i. The period, if any, fixed for the duration of the company. Week 6 [Law] The Enactment of Laws During this lecture we shall go over the legislative process in Malta and the different types of legislation. Legislative process in Malta: Parliament Delegated Authorities Prior Consultation Parliament Consists of: The president House of representatives Empowered to make laws: For the peace, order and good government of Malta In conformity with full respect for: o Human rights o Generally accepted principles of international law o International and regional obligations in particular those assumed by the treaty of accession to the EU Legislative Process First Reading Presentation of motion – just the title of the bill (proposal for a new or to change an existing law) The member presenting the bill seeks ‘authorization; to publish the bill Vote without debate If it passes this stage, the bill will be published In practice the minister responsible for the particular sector presents the draft bill to cabinet beforehand  A bill may also be presented by a single member of the house of representatives: Private Member’s Bill Second Reading If the provisions of the Bill constitute a charge on the Consolidated Fund, the recommendation of the President is required The Member piloting the Bill explains the purpose and policy involved Debate is limited to the principle of the Bill (purpose the bill and the proposed means for giving it effect Vote is taken Bill moves to the next stage Committee Stage The House resolves itself into Committee Bill may by considered by the Standing Committee for the Consideration of Bills if the Bill does not involve a charge on the Consolidated Fund At this stage the Bill is examined and debated in detail, provision by provision Vote is taken Report Stage Chairperson of the Committee informs the House about the progress and of any amendments The amendments proposed are considered by the House, which can also make further amendments. Third Reading The bill is now reviewed in its final form A vote is taken Assent of the President Bill is referred to the President for his assent Publication in the Malta Government Gazette Once it receives the President’s assent, it is published without delay in the Government Gazette A law only becomes operative once it is published However, the Act itself may contain provisions specifying that the entire Act, or any of its provisions, will enter into force at a later date (Sometimes left in the hands of the Minister) Voting Ordinary Bills – 50%+1 of Voting Members Bills amending the Constitution (Art.66) 50%+1 of all Members of the House Two-Thirds of all the Members Two-Thirds of all the Members + Referendum (Electors Qualified Vote) (Applies to Art.66(3)&(4) & Art.76(2)) Subsidiary Legislation Power must emanate from a primary legislation – a subsidiary legislation must owe its own existence to another law May be in the form of: Regulations Orders Rules Bye-Laws Always published by means of a Legal Notice in the Government Gazette which is then incorporated in a subsidiary legislation under the parent Act Made by a Minister, Prime Minister, Commissioner of Police or the Superintendent for Public Health (normally Orders), or a Rule-Making Body (Such as the Board established under the COPC) In certain instances, this power is exercised after consultation with the respective authority (Ex. The Planning Authority or Malta Communications Authority) or a Local Council In practice these are normally drafted by the respective department, ministry or authority, or a local council, after seeking political / policy direction The opinion of the office of the State Advocate is normally sought Once drafted, they are submitted to the Minister for approval Minister discusses content in Cabinet If approved, they are published in the Government Gazette/the Official Website (www.legislation.mt) They become law once published Other general rules: Subsidiary Legislation may be retrospective (but not made to operate to any date which is earlier then the commencement of the parent act). But no punishment may be imposed on any person for anything done or omitted before the commencement of such subsidiary law. Power to make law cannot be further delegated to another person or body – ‘delegatus non potest delegare’ Legal Notices always start by making reference to the enabling powers (the provision of the law conferring powers to legislate)– but wrong reference does not invalidate the subsidiary legislation A Subsidiary Legislation is to be laid on the Table of the House of Representatives after it is made, which may within sixty days resolves that it shall be annulled or amended Prior Consultation The presentation of a draft Bill or the making a Subsidiary Legislation, may be preceded by consultations, debates, Green Papers or White Papers. Green Papers: These are consultation documents produced by the Government Often when a government department is considering introducing a new law, it will put together a discussion document called a Green Paper The aim of this document is to allow people from all areas (including Parliament) to debate the subject and give the department or authority feedback on its suggestions White Papers: These are documents produced by the Government setting out details and more definite intention of future policy on a particular subject  A White Paper will often be the basis for a Bill to be put before Parliament The White Paper allows the Government an opportunity to gather feedback before it formally presents the policies as a Bill Week 7 [Law] The Maltese Courts During this session, we shall discuss the differences between criminal, civil and constitutional jurisdictions in order to better understand the different courts present in Malta's judicial infrastructure. Criminal Wrongs vs Civil Wrongs Criminal: An act of man, of commission or omission, in violation of a law promulgated by the State which is contrary to the rule of legal justice It carries a punishment It is a public wrong in nature – against the State or the community Not all criminal offences are regarded as moral wrongs, and not all moral wrongs are criminal offences Action is vested in the State and is prosecuted in the name of the Republic of Malta, through the Executive Police or the Attorney General It is prosecuted ex officio (without the need of a complaint) except in those cases where the complaint of the injured party is expressly required by law Standard of Proof - beyond reasonable doubt Criminal Wrongs vs Civil Wrongs There must be two elements: material and formal Material: the ‘actus reus’ – the act of the person Formal: the ‘mens rea’ – the guilty mind – the intention (which may be of various forms) Our system does not distinguish between purely criminal acts and administrative offences or misdemeanour The Criminal Code divides criminal offences into two categories: crimes (delitti) and contraventions Punishments (general rules): Contraventions: fines (ammenda) and detention (very rarely used)  Crimes: fines (multa) and imprisonment (forfeiture of the ‘corpus delicti’ as a consequence of punishment, interdiction in certain cases) Civil: Private in nature as they are committed against a private person It relates to the claim of a right The claim may result from a criminal offence Actions must be instituted by the private party making a claim (normally through the legal representative) It is not about a punishment but about claiming a right – getting what is yours or compensation for injuries suffered, etc. Standard of Proof: ‘balance of probabilities’ Courts of Criminal Jurisdiction Court of Criminal Appeal (Superior) (3 Judges) – hears appeals from decisions of the Criminal Court Court of Criminal Appeal (Inferior) (1 Judge) – hears appeals from decisions of the Court of Magistrates (Criminal Jurisdiction) Criminal Court (Solemn Proceedings) (1 Judge + very often 9 jurors) – trials of cases involving a criminal offence liable to imprisonment for a term exceeding 2 years imprisonment Court of Magistrates (1 Magistrate) (the Juvenile Court in cases where the charged or accused person is under 18 years of age) – As a Court of Criminal Judicature (Summary Proceedings) Offences liable to imprisonment for a term not exceeding 2 years imprisonment Offences liable to imprisonment for a term exceeding 2 years imprisonment but not exceeding 12 years (if there is no objection on the part of the accused and with the Attorney General’s consent) Appeals from decisions of the Local Tribunals As a Court of Criminal Inquiry – Not a trial, but compilation of evidence in cases involving offences liable to imprisonment for a term exceeding 2 years imprisonment (except where the AG consents otherwise if the offence is liable to imprisonment of a term not exceeding 6 years)  No declaration of guilt or innocence – the court declares either that there is enough evidence to send the charged person to trial or such person is discharged Local Tribunals (1 Commissioner for Justice) Cases related to depanelized (scheduled) offences and breaches of Local Councils Bye-Laws Court of Appeal (Superior) (3 Judges) – hears appeals from decisions of the First Hall Civil Court Court of Appeal (Inferior) (1 Judge) – hears appeals from decisions of the Court of Magistrates (Civil Jurisdiction), Small Claims Tribunal or other Ad Hoc Tribunals  Civil Court (1 Judge) Family + First Hall (Contentious Matters) Family matters (separation, divorce, etc) Claims exceeding €15,000 or where the amount of damages is unknown Administrative Review (challenges of decisions/acts of public authorities (Art.469A of the COCP)) Voluntary Jurisdiction (non-contentious Matters) Ex. Appointment of curators, opening of successions, etc. Court of Magistrates (1 Magistrate) Claims exceeding €5,000 but not exceeding €15,000 Small Claims Tribunal Claims not exceeding €5,000 Constitutional Matters (Including Human Rights) Constitutional Court (3 Judges) Hears appeals from decisions of the First Hall Civil Court (Constitutional Jurisdiction) Matters related to general elections First Hall Civil Court (Constitutional Jurisdiction) (1 Judge) Hears cases involving: Violations of Human Rights Interpretation of the Constitution Invalidity of laws Any person who is not satisfied with the decision of the Constitutional Court relating to Human Rights under the ECHR, may refer his case to the European Court of Human Rights in Strasbourg In some jurisdictions there’s a court of third instance – Court of Cassation. Any judgment, even appeals judgments, may be referred to the Court of Cassation. The Court of Cassation does not reassess the merits of the case but verifies that the decisions referred to it were made in accordance with the law. Some ad hoc Tribunals: Police Licenses Appeals Tribunal Prison Appeals Tribunal Building and Construction Tribunal International Protection Appeals Tribunal Industrial Tribunal Arbiter & Patents Tribunal Administrative Review Tribunal Information and Data Protection Appeals Tribunal Partition of Inheritances Tribunal Environment and Planning Review Tribunal Commercial Sanctions Tribunal Financial Services Tribunal Consumer Claims Tribunal Week 8 [Ethics] Introduction In our first lecture on Ethics, we seek to understand what do we mean by the term, and explore its meanings through different definitions. With the support of examples, the session proceeds to set the ground for the understanding of key concepts and principles in Ethics. Learning Outcomes: What is Ethics? o An explanation o Why does it matter? Ethics vs Morality o Norms vs Values o Ethics vs Morality Types of Ethics o Individual o Organizational o Professional o What is a breach of ethics? Factors affecting Ethics o Foster holistically superior methodologies What is Ethics? “… ethics is about what we ought to do and what we ought not to do. That is, it is concerned with what is good and bad, right and wrong, just and unjust, or noble and ignoble, and how we can tell the difference.” “Ethics is the difference between what you have a right to do, and what is right to do.” Potter Stewart (1915-1985) Why does it matter? Leaders set an example They represent the State and nation We need to know what guides their decisions. Goals and objectives are important – but so are the processes that guide them. Ethical conduct is crucial in resolving tensions and conflicts. Ethics vs Morality ETHICS A rational approach that guide one’s decisions on what’s right or wrong. Play a determining role when there might not be a clear answer or competing principles are at play. MORALITY Individual behaviour based on religious or philosophical principles. One’s morals are not necessarily dictated by reason. Types of Ethics There are a number of variables that govern ethical behaviour. Here we look at 3 categories: 1. Individual 2. Professional 3. Organizational Individual / Personal Ethical code regulating individual behaviour. Codes of conduct developed according to family upbringing, community, society, tribe, nation. Approach to breaches can be subjective. Can be developed, shaped by events, but also lost over time. Professional Specific Ethical codes regulating a particular profession Code relates to how duties of that profession are / ought to be dispensed Breaches may be accompanied by license, warrant being revoked e.g. Medical / Pharmaceutical Profession Code of Ethics for MPs [House of Representatives] Declaration of interests / assets may be required in sensitive areas. Organisational Ethics expected by the organization in question. In business it refers to the ethos of the company in conducting its business. In Government it is the accountability towards its citizens as stipulated at law. What are the values that underpin the specific activities of the entity? What is breach of ethics? Factors affecting ethics. Stages of Moral development A framework of understanding Week 9 [Ethics] Society and Public Policy In our second session, we continue to develop an understanding of ethics, and it how it helps us understand ethical conduct as individuals, members of society, and how it informs public policy. We do this by shedding light on one of the branches of study - Normative Ethics. The focus on virtues is one way of discerning character formation, ultimately important variables that determine how we behave. Learning Outcomes: Normative Ethics Virtues Virtues vs Vice Practical wisdom Application - Justice, Humanity & Prudence Types of Ethics 1. META-ETHICS: Exploring the scope, origins and nature of ethics 2. DESCRIPTIVE (COMPARATIVE) ETHICS: describes how people or groups think and act ethically 3. NORMATIVE (PRESCRIPTIVE) ETHICS: Proposes what should be considered right or wrong behaviour 4. APPLIED ETHICS: decides how people should act in specific situations / scenarios e.g. Environmental Ethics / Cyber Ethics / Professional Ethics etc.; Normative Ethics Is concerned with the content of our moral judgements. It is identified as that branch of ethics that emphasizes the virtues (or moral character). There are three types of Normative Ethics. Virtue Virtue ethics is an approach that deemphasizes rules, consequences and particular acts and places the focus on the kind of person who is acting. A person's character is the totality of his character traits. Our character traits can be good, bad or somewhere in between. They can be admirable or not. The admirable character traits, the marks of perfection in character, are called virtues, their opposites are vices. Character traits are Dispositions or habit-like tendencies that are deeply entrenched or engrained. They have been referred to as second nature--"first nature" referring to tendencies with which we are born. Character traits are not innate--we were not born with them. For e.g. infants are not born generous or racists. Formed as a result of more or less freely selected actions of a certain kind. We are not born honest or liars, but we become so by repeatedly telling the truth or by repeatedly lying. Moral virtues Are admirable character traits; generally desirable dispositions, which contribute, among other things, to social harmony Enable us to act in accordance with reason Enable us to feel appropriately and have the right intention Are orientations towards the mean, rather than the extremes (vices relate to extremes). Is there a condition (a moral disposition) between virtue and vice? Moderate person (virtuous in relation to pleasure) -- Knows and wishes to do the moderate thing, and does it Self-controlled person -- Knows and wishes to do the moderate (correct) thing, but has to struggle against strong appetites in order to do the moderate thing. Weak-willed person -- Knows and wishes to do the moderate (correct) thing but often loses to strong appetites which overpower reason. Immoderate or self-indulgent person (vicious in relation to pleasure) -- Has no wish to do the moderate thing and does not do it. Practical Wisdom The knowledge or understanding that enables its possessor, unlike the nice adolescents, to do just that, in any given situation. Correct application requires situational appreciation—the capacity to recognise, in any particular situation, those features of it that are morally salient. This brings out two aspects of practical wisdom. 1. One is that it characteristically comes only with experience of life. It is part of practical wisdom to be wise about human beings and human life. 2. The second is the practically wise agent’s capacity to recognise some features of a situation as more important than others. Categorical Imperatives Categorical imperatives Hypothetical imperatives Commands or moral laws all persons Command in a conditional form where must follow, regardless of their desires or a possible action is pursued as means extenuating circumstances. As morals, to something else that is willed. these imperatives are binding on For e.g. "You will get a Degree only if everyone. you study" or "Do not steal if you want i.e. one should always respect the to say out of jail“. humanity in others, and that one should only act in accordance with rules that could hold for everyone. Ethical Foundations of Public Policy Justice – Humanity – Prudence Using Alleviation of Poverty as an Example Justice According to Pogge (2008) extreme poverty is primarily a consequence of a biased trading system and abuses of power, economic and military, that skew the global economic system to the advantage of the better-off and to the grave disadvantage of the very poor. The institutions of international and domestic trade are controlled by the rich for their own benefit. Or, more generally and less starkly, some countries benefit from the institutions of the global economy in a way that is disproportional and therefore unfair. Once we have come to grips with the horrendous phenomenon of global poverty, the crucial factor to be determined is the degree to which government, citizens, and corporations, are complicit in systems that cause such poverty. It is, thus, a matter of justice that there should be a redistribution of resources to something like the situation that would have been the outcome of fair trade, fair politics, and fair educational opportunities. Those responsible for actively bringing about this situation should be held accountable with respect to taking the positive actions necessary to rectify the appalling situation they have brought about or from which they have unfairly benefited. However, not all extreme poverty can be laid at the door of exploitation or unfairness. Many natural disasters are difficult to lay to the account of human beings, although, of course, the capacity to deal with natural disasters may be affected by the past immoralities of other people. Humanity Poverty, it is argued, is morally unacceptable directly because of the suffering that it involves. It is the experiences of those in extreme poverty that founds the moral obligations to improve their situation. The misery of hunger, malnutrition, ill health, and premature death that goes with the lives of those who lack the basic means of subsistence is the prime issue at stake. The endorsement of a basic human concern for others that prompts us to relieve pain and suffering for its own sake, irrespective of its cause.  In relation to extreme poverty, it is relatively uncontroversial to affirm 'negative utilitarianism', which focuses on diminishing suffering rather than promoting pleasure, along the lines developed by moral 'prioritarians'. Survival and basic subsistence are necessary conditions of all other human goods. In moral terms one such human good is the capacity and opportunity to act as a moral agent, making choices and carrying out projects on the basis of moral considerations rather than the immediate imperatives of survival. With humanitarianism, the focus is on immediate aid in kind, while the principle of humanity serves as a basis for poverty relief through a wide range of mechanisms for promoting development and redistributing resources. A further source of scepticism about humanity as a moral principle is that it is too demanding, in that it seems to imply that the well-off should divest themselves of their relative wealth, even to the point of becoming poor themselves. Prudence Prudence is the exercise of wisdom in relation to human affairs, so is essential to the achievement of the human good. Virtuous prudence goes beyond the enlightened self-interest of individuals, and beyond even the rationality that serves the interests of social groups and, in principle, of the world at large, but still carries with it the connotation of intelligent objectivity and far-sightedness. Prudence is an essential precondition for being morally useful where consequences, good and bad, are involved. That does take us as far as having a moral duty to develop our rationality as a skill that is necessary to achieve many morally desirable goals. This is particularly so when we are involved in working out the most effective. Week 10 [Ethics] Standards in Public Life After the foundations of ethics, as a discipline, and as a guide to conduct, the third lecture is dedicated the application of such guidelines to public life. We do this by using the Council of Europe's definition of public ethics, and then delve into the role of the Commissioner for Standards in Malta, and explain Code of Ethics for mps and members of Cabinet. Learning Outcomes: Public Ethics Commissioner for Standards in Public Life (Malta) Code of Ethics – Members of Parliament (mps) Code of Ethics – Ministers & Parliamentary Secretaries Real life examples Public Ethics (Council of Europe) Public Ethics refers to the practical implementation of ethical standards by public officials whereby the public good is placed before private interests in accordance with the law so that confidence and the trust of citizens in the action and decisions of public officials and public organisations are maintained and strengthened. A “public organisation” is a national, regional or local institution or administration; a company or similar entity managed or financed by such an institution or administration, or by the State; or a private-sector entity, including non- profit entities, providing public services. “Public official” includes: 1. persons who are elected or appointed to a public mandate or function, such as members of national and regional governments, members of national and regiona