They draw the laws up, yes, but… who applies them?

A funny thing happened to me at the law-courts the other week. So there I was, staring vacantly into space in a crowded corridor outside Hall 2 - not to be confused with Halls 1, 3, 4 and 5, by the way... though nobody seems to have ever informed the presiding magistrate- in a scene straight out of 'One Flew Over the Cuckoo's Nest'.

Most of the several dozen people in that corridor (myself included, and also a certain former prime minister who just happened to have a case that same morning) could very easily have been extras lounging about in the ward reserved for the catatonic and the incurably vegetative... only without any passing nurses to give us all some much-needed electro-shock therapy.

Every so often, a court registrar would pop out from the chamber like a human yo-yo (or schlemihl, if you prefer) rattling out random names at the top of his voice as though he'd only just acquired the faculty of speech for the very first time. And weaving in and out of the assembled groups of 'chronics' and 'acutes' are small posses of these things called 'lawyers': men mostly in flowing black gowns straight out of 'Batman Returns'; women nearly all dressed for a 'get-laid-or-bust' party on the day the Universe finally comes to an end.

In other words, it was business as usual at Malta's only palace for the administration of justice: the Hutts cutting backroom deals with the Wookies, the Imperial Stormtroopers telling the Paduans to 'go about their business', the Biths playing zany music in the corner... and the droids? Well, I suppose the ones that weren't visibly malfunctioning were busy presenting their clients' cases before the Supreme Jedi Council.

And right there, in the midst of all this other-worldly oddness, a lawyer friend of mine suddenly appears at my elbow like a hologram: enquiring with a cheeky grin why someone like myself - who so recently chose to slag off the entire legal profession in an opinion column just like this one - would have the gall, the temerity, the nerve, the sheer chutzpah to so much as show my face here at the local law saloon... and expect to get out of the building alive.

Hmm. A couple of small points before moving onto slightly more pertinent matters. One, I had no such expectation at all. In fact, to this day I can't quite understand how I didn't actually die of boredom and frustration that morning (hang on, wait: maybe I did, and this is the afterlife. Maybe you're all just figments of my imagination. Maybe... what? Oh, OK, I'll just shut up then...).

Two: let's give my friend the benefit of the doubt and assume that he was, in fact, joking (have to admit it wasn't exactly obvious at the time). Because if he wasn't joking... well, I would be forced to conclude that he genuinely believed I would have been present in the corridor outside Hall 2 of the Malta's only law-courts, not because I was dragged there kicking and screaming by means of a court warrant... but out of CHOICE.

Yikes. OK, allow me to spell it out, in case there remained the shadow of a ghost of a vestige of doubt on this score. Should any of you ever discover that I - Raphael Vassallo, of (almost) sound mind and in (almost) full possession of mental faculties, etc. - actually took an active and conscious decision to spend most of any given morning somnambulating up and down a corridor full of basket-cases and space oddities, waiting for a hearing that I know in any case would simply be deferred until next October... as they always are... well, if that ever happens, kindly do me a favour and book me a full frontal lobotomy at the nearest experimental sanatorium of your choice.

Thanks in advance, etc.

In a hurry? You can start reading from here if you like...

Now: back to the business of being left with absolutely no choice whatsoever but to immerse myself bodily into that wretched hive of scum and villainy they call the local courthouse... the likes of which you will simply never find anywhere else in the known Universe, except maybe the Mos Eisely cantina (where the music is at least slightly better).

The reason I was there in the first place? I am being sued for criminal libel (hence the court warrant, etc). That's right, folks. 'Criminal libel' still exists in our statute books, despite having been phased out long ago in most serious jurisdictions worldwide.

And yet it is a procedure that both the Nationalist and Labour Parties - the only other vaguely comparable hives of scum and villainy in the known Universe, by the way - have publicly committed themselves to consigning to the dustbin of history once and for all.

They made this commitment in public and on various occasions: the most recent being a parliamentary debate on that very topic in April 2012. So, I hear you all ask... why is it still there?

Well, apart from the obvious answer - i.e., that political parties always say whatever makes them look good, but then only do whatever strengthens their own position, while weakening that of anyone who actually tries to hold them to account - I can only assume that the 'dustbin of history' is altogether too full of other types of junk to also accommodate this particular steaming heap of crap.

For instance: I am told the PN's former policy on divorce alone takes up a sizeable chunk of the available space therein; though arguably not quite as much as the Labour Party's more recent promise of 'meritocracy'... which is now rotting slowly away at the top of the scrapheap, along with the same party's earlier promise of a more 'progressive' way of doing politics.

In fact, I am told the powers that be are currently so busy disposing of ALL their previous policies (and in some cases, people), that we might have to wait a while longer for them to finally get rid of some of the things that really do need to be binned with urgency. I've already mentioned criminal libel; but of course there are many, many, much more pressing issues to be dealt with first.

The rest of this article will be dedicated to only one of these issues: the nasty habit of local magistrates and judges to simply absolve themselves of all blame when delivering grossly unfair (and sometimes wildly conflicting) sentences... by pointing fingers at the politicians who drew up the manifestly flawed legislation in the first place, and claiming (erroneously) that they themselves have no choice but to apply the law with all its glaring flaws.

Sorry, my fine magisterial friends, but... that is a lousy, lazy excuse, and you know it as much as I do.

Let's take a few examples. This week, a German drug courier by the name of Peter Paul Pietka was found guilty of importing 61 capsules of cocaine (no exact quantity specified in the court reports, by the way, which I thought rather strange. How much cocaine does 'one capsule' contain? And how long is that piece of string, anyway?) He was sentenced to five years, six months' imprisonment and fined €15,000... and try to remember those details, as they will become important in a sec.

The first thing that struck me when I read this report was how uncannily closely it echoed another report I had read only a short while before. This other case dates back to last September, and involved two men from sub-Saharan Africa. This time the judge jailed Stephen Nana Owusu, 36 of Ghana, for 11 years and fined him €30,000 after he pleaded guilty to importing almost a kilogramme of heroin in capsules hidden inside his stomach.

Another convicted trafficker, Touray Sana, 30 of Gambia, was jailed for eight years and fined €15,000 for importing almost half a kilogramme of cocaine.

Now for some background information. Malta's Dangerous Drugs Ordinance has a schedule of substances that are illegal to import, sell, consume, etc. Importing anything that is on that list de facto constitutes a case of trafficking, and severe sentences are stipulated at law.

But unlike most other comparable schedules in jurisdictions abroad, there is no form of gradation system to weed out the more harmful from the less harmful substances, and so on. Many people I have spoken to on this subject - including some lawyers (which might explain why my respect for that profession took such a sudden nosedive) - seem to be under the impression that this list is never revised at all. This, I was once told, is why there is no effort made to distinguish between different drugs in Maltese legislation: as usual, the legal profession absolves itself of all blame and points its fingers at the politicians who (they claim) never update the law to reflect present-day reality.

But - one earth-shattering surprise for lawyers coming right up - they are WRONG. The Dangerous Drugs Ordinance is occasionally amended: the last time this happened (in 2010, as I recall) it was expanded to also include 'Khat': a mild stimulant that is very popular in Kenya and other parts of east Africa, but which was not catered for at all by Maltese law. 

This means that politicians can and do amend these laws, when they feel the need arises. The question therefore becomes: why don't they ever feel the need to also introduce a gradation system to spare us any of the truly abysmal and shockingly unjust court sentences that are so often handed down by the Maltese law courts?

My answer to that is simple. Because unlike most other civilized countries, the judicial arm of the state never puts any pressure on the legislative arm to make better laws.

On the contrary: judges and magistrates in this country seem perfectly content with the scraps that fall from the legislative table... and whenever we find ourselves choking on the resulting 'justice', they never once turn to the chefs and ask them to prepare something slightly more edible (not to say appetizing).

Now: if you run a comparison between the cases outlined above, you will immediately note that the two African defendants were given hefty prison sentences and sizeable fines apiece. The German received a markedly lesser sentence; and his fine was only half that of one of the two non-Europeans facing charges of much the same nature.

I'll pretend I didn't notice the rather obvious difference in nationality there - and instead I will concentrate only on the difference in the type of drugs involved. At a glance, it seems the heroin smuggler received approximately double the punishment meted out to the two cocaine smugglers. So far so good: this means that even if Maltese law does not actively distinguish between different drugs, individual judges do apply a little judicial relativism when it comes to assessing the seriousness of the case in question.

Or at least, that's the impression you get looking at those two cases in isolation. Sadly, however, it turns out on closer scrutiny to be a fleeting illusion.

As I have had occasion to mention several times in the past year or so, a previous drug 'trafficking' case - that of Daniel Holmes - resulted in almost exactly the same sentence (11 years, plus a €23,000 fine) as the heroin smuggler cited above... and DOUBLE the sentence handed down for cocaine importation.

And yet Holmes was actually caught cultivating marijuana for personal use... and marijuana is universally acknowledged by all drug policy specialists the world over to be nowhere near as harmful as either heroin or cocaine (note: there is mounting evidence that it is actually beneficial to one's health, but let's leave that for now).

Now for the question I have been asking for around 10 years. It goes like this.

You know it, I know it, your dog knows it, and even the judges who hand down those ridiculous sentences know it perfectly well. Malta's Dangerous Drugs Ordinance is dangerously flawed, and has already ruined the lives of many an innocent person in our country.

So why the flipping flip don't we goddamn address this legal anomaly once and for all? Why do we all have to wait for local embarrassments to become international 'causes celebres' (as happened with Gisela Feuz, and is currently happening with Daniel Holmes) before actually doing anything about it?

The only answer I have ever got is the one I quoted above (it's all the politicians' fault!), to which I can only reply with another question.

Excuse me, but: if politicians come up with up laws that don't make sense... whose job is it to actually draw the nonsensicality of these laws to the same politicians' attention, so that they can go back to the drawing-board and come up with a slightly more reasonable product for the greater good of all?

Is it the job of: a) journalists? b) wookies? c) victims of the often outrageously unjust sentences that arise from the same laws? Or d) the lawyers/judges/magistrates who interpret and apply those laws, and who also have such tools at their disposal as a 'chamber of advocates' and a 'commission for the administration of justice'... the latter being specifically tasked with reviewing the judicial situation for precisely such anomalies?

I don't know. Call me morbid, call me pale, call me a boring old fart who won't find a place as an extra in any of the new Star Wars movies... but I still maintain that if there is a permanent injustice arising out of the judiciary's obstinate refusal to even question the lunacy of the laws that they themselves interpret and apply... the blame for that injustice falls squarely on the shoulders of the judiciary, and no one else.