How many MPs does it take to change a law?

OK, we all know the answer when it comes to light bulbs. One to table a motion for the changing of a light bulb. Another to second that motion. A third to present the motion in parliament; a fourth to register objections that the party had not been consulted on the issue, and that a White Paper for Light Bulb Change had yet to be launched. A fifth to question whether due diligence has been applied in the tendering process to procure said light bulb, and to appoint the team of private contractors engaged in the project… and on it goes until the third year of the legislature, by which time the light bulb will of course still not have been changed.

So let me rephrase the question. How many times does a local (or even international) court have to rule that something is ‘illegal’ and a ‘human rights violation’… before the local House of Representatives finally gets that message drummed into its 69 heads, and changes the law to remove the illegality?

Reason I ask is that it’s been happening an awful lot recently. No, not the amendment of laws to remove illegalities. That’s just something we always talk about, but never get round to actually doing. I meant the endless court rulings finding our country GUILTY of human rights violations... once, twice, three times, four times… and all over the same breach of the same article of the same European convention that is also entrenched in the Maltese Constitution.

This week, not one but two court rulings have once again blatantly exposed the fact that Malta’s legislation and judicial process continue to defy international law when it comes to human rights protection. And it becomes three, if you also include an address in which Chief Justice Silvio Camilleri complained about the humungous inconvenience whereby the same law courts now get to be scrutinised – with increasing vigour, I am pleased to note – by an ever more inquisitive press.

But let’s stick to the court cases for the time being. In different ways, both reinforced the widespread perception of a rot in the system that, not unlike the proverbial Maltese fish, stinks most conspicuously from its head. As you all know, legislation is passed through parliament before it can come into force; and it is precisely there, in the institution soon to be housed in a palace designed by the world’s greatest architect, that the first symptoms of a glaring malignant tumour can be diagnosed.

On Friday, the Constitutional Court delivered a ruling (so far unavailable on ‘Judgments Online’) in a case filed by Welsh national Daniel Holmes. As you will no doubt remember, Holmes is currently serving an 11 year sentence, confirmed on appeal, for cultivation of marijuana. Three years later, the Constitutional Court now finds that Holmes’ human rights were breached on at least two counts – the unfettered discretion enjoyed by the Attorney General to decide between lower and upper courts in drug trafficking cases; and the lack of legal assistance placed at his disposal during arrest and interrogation procedures.

Both those considerations formed the basis for much of Holmes’ defence at both first instance and on appeal. But what is significant about this latest ruling is that the human right violations associated with this case had also prejudiced Holmes’ right to a fair trial. Technically, this means that the Constitutional Court has now deemed that the entire legal process leading to Holmes’s incarceration in 2011 was ILLEGAL.

The court therefore awarded Holmes the grand total of €7,000 in compensation; an enormous sum, of course, that works out at a very generous €6.40 for every day he has spent in prison since 2011. To put that into some kind of perspective: it’s around 25 times LESS than Lou Bondi is paid daily by the State for failing to secure any top international names for this year’s Independence Day celebration concert in Grand Harbour.

That alone should illustrate the sheer value our law courts place on such issues as ‘human rights’. You can spend three years unlawfully imprisoned after a legally unsound trial… and then get the sort of ‘compensation’ that won’t even buy you a second-hand Ford Fiesta. Only you won’t be able to buy that Ford Fiesta anyway. You’d still be in jail, you see. Yes, that’s right: never mind that the supposedly highest court in the land has now decreed his entire trial to have been ‘unfair’. Holmes remains in prison, and the only compensation he gets is a paltry, ludicrous sum he can’t even spend.

In any case: this is where your memory sticks should be toggling themselves into action. The above sentence underscores no fewer than three (by my count, at any rate) glaring inconsistencies in Malta’s judicial machine… and not a single one of them is in any way ‘new’. Just recently, there was the case of a man unjustly imprisoned over allegations of sexual abuse involving his daughter. You will surely remember the details: the same daughter later (after her father had already languished in jail for three years) confessed that she had lied about the alleged abuse. But in jail the man remained, because there was no legal mechanism to secure his instant release, not even when faced with such dramatic evidence to exculpate him.

He was eventually released, following proceedings initiated for that very purpose. But the same intrinsic flaw in the mechanics of our justice system is still there. No effort has been made to amend that glitch, so that future innocent people won’t have to spend more time in jail than they have to. And apart from reflecting roughly the same anomaly now present in the Holmes case, this is also the same pattern that gets repeated each time any aspect of our legal system is found to be in breach of international law.

Both the abovementioned two human rights violations have likewise time and again been ruled ‘illegal’ and ‘unconstitutional’, yet no effort has been made to address the root cause of the problem. In the case Camilleri vs Malta, decided in January 2013, the European Court of Human Rights ruled that the AG’s discretion to decide which court to assign a case – which has massive implications for the type of penalty involved – was in breach of Article 7 of the European Convention on Human Rights.

Specifically, the bone of contention concerns the application of different punitive measures to the same crime. Let’s take a hypothetical scenario: you and I are both arrested for drug trafficking… but after wheeling and dealing in the interrogation room, my case gets to be heard in the Magistrates’ Court – where the maximum sentence is 10 years – and yours is heard before a jury, where you face a possible maximum sentence of LIFE. For the same crime, of course…

Even a small child would immediately see the injustice of that system. And it was perfectly visible to the ECHR, too, which last January ruled that: “[Maltese] law did not determine with any degree of precision the circumstances in which a particular punishment bracket applied, and the prosecutor had an unlimited discretion to decide which minimum penalty would be applicable with respect to the same offence. His decision was inevitably subjective and left room for arbitrariness…”

The following month (February 2014) the local Constitutional Court likewise upheld the same principle in ‘Malta versus Dimech and Lebrun’. This is from a press report: “Mr Justice Anthony Ellul ruled yesterday it was not correct for the Attorney General to decide in which court the accused should be tried. People who were charged for the same crime would end up being given different punishments without the courts having any discretion …. The principle of rule of law and a fair trial should not permit this interference in the administration of justice, he concluded.”

Fast forward eight months, and… oh look. Yet another court ruling reconfirms what practically everyone in the country can now probably recite by heart: i.e., that the Attorney General’s discretion is a violation of human rights, and has to go. But for all this, it remains on our statute books, and the AG continues to have discretion to decide arbitrarily which crime gets tried in which court, in flagrant violation of multiple European and Constitutional Court rulings.

As things stand, the only visible concession that something is even amiss came last August, when the law was amended to allow suspects to ‘challenge’ the same unconstitutional Attorney General’s discretion in court. Wonderful solution, eh? We can now ‘challenge’ the Attorney General whenever he breaks international law by violating our human rights. He can still violate them, of course…. all we can do is initiate another long judicial proceeding to remind him, and the country in general, that the underlying flaw in this system has once again not been addressed.

This brings us to the second case I mentioned in the opening paragraph: and the first to actually invoke the August amendment. Last Thursday, Mr Justice Michael Mallia held that Emmanuel Magri, accused of importing and trafficking heroin in 2003 (yup, that’s right: 11 years ago…) was not to stand trial by jury, as originally intended by the Attorney General, but in the magistrates’ court. Again, the judge cited the same case law to conclude that the practice in question is illegal.

Wow, that’s a shocker, isn’t it? Who would have ever guessed, that after multiple rulings by the highest courts in Malta and Europe, the local Criminal Court would finally get it into its head that the discretion used by the AG in the Holmes, Camilleri, Dimech/Lebrun and other cases was (as I grow weary of repeating) unconstitutional, and a direct violation of the human rights charter?

Yet the AG remains free to exercise that discretion even now. So I suppose the next 20 cases brought forward on the same complaint will likewise reach the same conclusion… and still the law will remain unchanged. 

The exact same principle applies to the legal assistance argument, too. Since 2009 the police have adopted new procedures to address this lacuna; but (as several cases have since revealed) the sort of assistance actually permitted does not really meet the criteria laid down in Article 6 of the Human Rights Convention. So again, the same question arises: how many times must the court rule that this is not in conformity with the basic principles of law, before the law finally gets amended to reflect those basic principles?

At which point, I feel I must cut the law courts some slack (hey, the Chief Justice gets terribly upset when journalists criticise his precious justice system. You wouldn’t want me to upset him, now would you?). What these cases collectively also show is that from the judiciary’s point of view, there is at least cognisance that this situation is flawed and has to be rectified. They have in fact made that point some half a dozen times in the past year alone.

So where is the machine of justice actually getting stuck, if not at the law courts? Hmm, I wonder. Let’s just say that all present indications point towards a large, unfinished building on stilts, slap bang at the entrance to our capital city, facing a statue of a horse with a missing leg…