That’s abusive in more ways than one, Manuel
The Minister of Justice and Homeland Security
The Times reports today:
Home Affairs Minister Manuel Mallia will not withdraw criminal libel proceedings against Paul Borg Olivier but will no longer insist that the PN’s general secretary be jailed if convicted.
Dr Mallia had initially said he would seek Dr Borg Olivier’s imprisonment over allegations that attempted to link him to the Enemalta oil scandal due to legal services he gave the Farrugia family.
Asked whether he would pursue the case following his appointment as minister, Dr Mallia’s spokesman said that Dr Borg Olivier has refused to apologise or withdraw his “blatantly untrue” and “malicious” allegations.
“It is important that the truth be allowed to come out fully, and unless this is done by a retraction from Dr Borg Olivier, then the protection of the law and the courts will continue to be sought,” the spokesman said.
1. The Minister of Justice, Army, the Police and Broadcasting is not the prosecutor here. He is the complainant (this is a criminal libel case in which, effectively, he is just a witness because he is the ‘victim’). So it is not up to him to decide whether the prosecuted person (Paul Borg Olivier) is, if found guilty of defaming him, imprisoned.
2. Precisely because he is the Minister of Justice and the Police, he should not speak this way or in these terms because it gives the impression of abusive influence on the decisions of the law courts and the police for which he is responsible. They should be free to operate without that interference. This is a European democracy with the separation of powers and supposed guarantees that those powers are indeed separate.
3. Now that he is the Minister of Justice, he should have had the good grace and the common decency to simply withdraw that complaint to the police which he should never have made in the first place. The situation has changed somewhat and it looks really ugly – and I’m talking democratic spirit here – for the Police and Law Courts Minister to be hounding the secretary-general (or former secretary-general) of the rival party through the courts using the police.
4. Withdrawing his complaint to the police would not just be the gesture required by common decency. It is also the assurance this country needs that this government does indeed plan to repeal the criminal defamation law which has been reduced to a dead letter or repealed throughout Europe. Using it against journalists or political adversaries is now the virtually sole preserve of those that still do not understand the spirit of democracy: the Middle East, Turkey, Israel, and North Africa. If the Police and Justice Minister is so keen on using this law himself, is he likely to be planning to repeal it? No.
5. If all those of us who are and have been systematically defamed by the Labour Party via its giant propaganda machine and its many satellites were to file a police report about everything said of us, we would need to form an orderly queue and camp outside our local police station.
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I’ve just commented on another post on this blog that today’s way of attacking (or rather of whittling away) fundamental human rights will be more subtle and less overt than 30 years ago.
This post fully proves my point. The Minister has not violated blatantly a fundamental human right but, by his statements, he implies two things:
1. That if PBO actions are not declared to have been libelous by the Courts, then the inference would be that the courts have not accorded their protection;
2. The magistrate presiding over the libel suit is being indirectly called upon to declare that PBO’s actions have been libelous.
Now, as you said Daphne, the Minister should have “the good grace and the common decency” …However, if the Minister doesn’t withdraw the complaint, he is not violating the law and he is not violating any fundamental human right article. PBO cannot take any action against the Minister for saying the words because, ultimately, it is the obligation of the Courts to treat the parties before them with impartiality and in a fair and unbiased manner.
Article 39 of the Constitution does not create an obligation on the Minister (on any minister) but rather it acknowledges the right of the accused to an independent and impartial court established by law.
Because, after all, any charter of human rights, is not giving anything to the subjects of law, but rather, it recognises the rights of the subjects of law and, as such, curbs the powers of the State which powers literally “stop” when they come in conflict with those rights. Fundamental human rights are fundamental to our being “human beings”, they are part of our dignity.
Nobody can give them to us. They are our birthright. However, when ministers behave as Manuel Mallia is doing here, they are, effectively, gnawing at those rights without there being any remedy. In other civilised democracies,of course, a Minister would have to resign. However, in this (what you very well call) Sicilian backwater, we will never witness such an approach.
What is, perhaps, even worse is that even if PBO’s words are deemed to be libelous by a court of law and such pronouncement would be the result of bias or pressure exerted by the Minister (directly or indirectly) on said court of law, PBO would really have no remedy because proving bias in a court of law, unless the presiding magistrate (in this case) is so obviously biased that the reasoning can only be the result of bias (and it is hardly the case, of course), is extremely difficulty, particularly in these cases when such an allegation can be interpreted as being a drowning man’s clutching at straws.
Hence, when all is said and done, the accused can end up being tried and condemned by a biased magistrate (and/or judge) without their being one shred of evidence as to the bias and absolutely no remedy.
And this, unfortunately, is what the result of years of legal evolution have left us with – they (whoever wants to crush opposition in a democratic state) will not shoot people in the streets but they will silently, stealthily and surreptitiously gnaw at the dissenters’ rights in a manner which is neither justifiable nor provable.
Lomax, I have read your previous post and this one. Please keep a watchful eye on this business of the Second Republic and a new constitution.
It is very worrying and most of the people out there cannot begin to comprehend what it entails and the repercussions on us all.
Each time these people open their mouths they inadvertantly reveal what lies beneath their ‘democratic’ skin.
“L’État, c’est moi”.
A very valid point indeed.
Now, more than ever, the people must be made aware of what has been gained so far, and what stands to be irretrievably lost on the democratic front, if Joseph Muscat and his blinkered cabinet are allowed to have their way unchallenged.
PS. Nice of Manuel to don his red Easter Egg outfit. His apt sense of occasion is to be admired.
“get out” what the ****?
http://www.timesofmalta.com/mobile/view/20130401/local/minister-orders-journalists-out.463674
They really are gaining momentum with all these farces. Their maturity in power management and action-taking just haven’t changed. First this, and now GWU’s Tony Zarb refusing journalists asking him questions.
Much has been written about the new government’s failings. Here are a few that struck me, both personally and particularly as a legal academic:
The Commissioner of Laws
Previous holders of this post were former AGs or Chief Justices. This was not a coincidence.
They had a sound – arguably expert – view of the entire legal system.
It was a necessary, albeit informal, precondition for appointment to this role.
Franco Debono is a criminal defence lawyer.
To my knowledge, he has virtually no practical or academic experience of the greater part of our legal system – eg family law, property law, contract law, energy law, private international law, company law, insolvency law, EU law (including its myriad sub-categories).
He may have studied the basics of what was our legal system some 15 years ago. The law has changed.
The Chair of the Constitutional Convention – Character
Chairpersons of lawmaking conventions must be calm.
They must be able to navigate the egos of the participants in the convention.
They must be able to identify compromises where nobody else can see them.
They should not have an agenda of their own.
They should not have an ego that eclipses that of all other participants.
They should not be prone to aggressive tantrums.
The Chair of the Constitutional Convention – Expertise
Chairpersons of lawmaking conventions should be experts in the relevant field.
They should have a clear understanding of the law and the ability to guide participants.
Franco Debono is a criminal lawyer who dabbles in human rights law.
Franco Debono boasts about the Draft Administrative Code. The Draft is one of the worst examples of legal drafting I have ever seen. Parts are unnecessary, others are unhelpful, and some clauses would be comical if they were not deadly serious. God help us if this is the sort of drafting we will see.
To be sure, Franco Debono was right about several things that need reformed. But he is the wrong person to do this.
The Second Republic
In addition to the above:
Second Republic? Nice slogan, but we might have expected some substance.
I have not heard a single word about rights. Not one. Constitutional conventions usually obsess with rights. They develop basic charters, such as the European Convention, adding and updating their content to deal with new realities and dilemmas. They navigate difficult contemporary questions. They add social rights.
What will our new constitution say about the rights of immigrants?
What will it say about discrimination on grounds of sexual orientation?
What will it say about discrimination on grounds of gender identity?
What will it say about discrimination on grounds of gender?
Dar Malta, Brussel
The Prime Minister’s speech to staff was not merely poorly delivered. For all his ‘taghna lkoll’ spiel, it revealed his ‘us and them’ attitude. You expect loyalty? Yes, of course you do. It goes without saying. Do not say it.
You ask for ‘unconditional’ loyalty? What do you mean by ‘unconditional’? ‘Taghna lkoll’, imma kif nghidilkom jien?
The myth of Giovanni Bonello
Maltese newspapers refer to Vanni Bonello as an outstanding legal mind: ‘an eminent figure whom this newspaper had already proposed for such a role’ (The Times, 26.03/13)
Judge Bonello was the most rabidly conservative member of the European Court of Human Rights. How’s that for a progressive government?
I discussed the judgment in Lautsi with several academics, most of whom found the ‘Italian’ judge’s opinion hilarious. They were embarrassed by my embarrassment when I told them that Bonello was Maltese.
Here’s what a Reader at King’s College, London thinks: ‘Judge Bonello joined the feast with a rant that reads like an advertisement on why nation states should opt out of the Court.’
‘he adds that secularism, pluralism and religious tolerance have nothing to do with the Convention, which is only concerned with freedom of religion. This is not a tenable position: freedom of and from religion is a byproduct of the historical struggle between the Church and the state. I am tempted to say that even a child would know this…’ (Lorenzo Zucca, KCL)
And another: ‘Judge Bonello’s concurrence is disgraceful.’ (Colm O’Cinneide, KCL).
‘As for Bonello, anyone who seriously uses “Armageddon” and “rivers of blood” in his opinion, as he did in Bosnian voting case, cannot really be taken seriously’ (Leart, a pseudonymous commentator)
http://www.ejiltalk.org/a-comment-on-lautsi/
The Minister for Health
He has been caught lying about his practice.
He has set up an office in A&E, showing scant understanding of his role, and no respect for the autonomy of his underlings.
He showed off his limitless arrogance and sense of entitlement when he bit the hand that gave Labour its majority today (ie when he kicked the media out of a meeting without so much as a statement).
Justice and Home Affairs
More arrogance: the tenuous argument for splitting the Ministry – part of the pretext for censuring Carm Mifsud Bonnici – has been ditched.
Insulting Judge Bonello must be really scraping the bottom of the barrel. The European Court has a different view on Judge Bonello http://www.timesofmalta.com/articles/view/20100917/local/european-court-pays-tribute-to-near-legendary-maltese-judge.327229
The dean of the Faculty of Laws has a different view on the “second” constitution http://www.timesofmalta.com/articles/view/20130331/opinion/A-new-constitution.463573
Nice things are said about people leaving a job as a matter of course. So let’s leave that aside.
The Dean of the Faculty of Laws is, in my experience, having worked with him, not exactly a man of imposing opinion. His claim to being a professor is also questionable.
The people doing the insulting above were academics. This person is quoting them. Unfortunately something one has to bear as a public figure. Please can we rise above the parochial “insult” idea that is so ingrained in Malta? And please look beyond a couple of ToM links from people who barely deserve their titles in making an argument?
Except to the extent that I called Judge Bonello ‘rabidly conservative’, I don’t believe that I insulted him.
He was rabidly conservative on religious issues, and this is borne out in his opinion in Lautsi (the crucifix case). That opinion is an embarrassment. It is vitriolic, and my colleagues at UK universities literally laughed at his reasoning and ‘colourful’ language.
His language was ‘legendary’, but this description is euphemistic to his many detractors.
As for the dean of the Faculty of Laws, I’m afraid that I disagree with him. I don’t consider any of his arguments in that link to be particularly compelling.
And how can anyone be so crass as to insult someone who looks like “the rich guy” from the game Monopoly.
http://www.independent.com.mt/articles/2012-01-10/news/after-showing-off-his-form-ii-records-franco-debono-fails-to-produce-university-academic-records-304168/
“The Form 2 result is one of the few that are still at hand,” he said. As for his attendance of lectures, he said: “No, I didn’t attend many lectures, as did many other students. I didn’t really like the University system. I did very well in my first year, when we covered topics that I was interested in, such as constitutional and criminal law. But I wasn’t particularly interested in commercial law, for instance.
Well said, Daphne.
And if someone starts that orderly queue, I would need to join it.
Meanwile, the European Union institutions and international human rights agencies, and foreign governments should monitor closely these developments in Malta.
One could argue that this very role Mallia now has is similar to that of Guido De Marco.
Slightly ironic don’t you think?
Could he have possibly been coached by his master?
Or possibly by his then mistress?
Leli is now judge and jury?
Leli is now Minister for Justice, Home Affairs, judge, jury, prosecutor and ex-defence counsel. And because of the inherent conflict in all this, he is also Minister for National Security.
Well done, Daphne. You may not be a lawyer but your logical and clear-headed mind is so uncommon in many of the practitioners of that profession.
Many of our so-called journalists could learn a lot from reading and digesting these types of posts. Your standing up for your and our human and democratic rights has been and still is a beacon for the months and years to come.
Well done (again); we love you and your blog.
May you know that we use your lines of thought and argumentation when discussing politics and current affairs. I don’t much feel the need for newspapers any more when we have your blog-posts right on the ball in matters that really affect us.
Even this is abusive in more ways than one. I just loved the readers’ comments under this article, especially the ones about “Ejja nkunu Protagonisti.”
Now don’t tell me that the leaders of the GWU were there for a private medical visit with Dr. Farrugia?
Or maybe they were going for a “puxxjatura”?
http://www.timesofmalta.com/articles/view/20130401/local/minister-orders-journalists-out.463674
Once a pompous ass always a pompous ass.
http://www.timesofmalta.com/articles/view/20130401/local/minister-orders-journalists-out.463674
Government run as a voluntary organisation – with volunteers.
What does Marlene Pullicino Orlando – oh sorry, Farrugia – do on a voluntary basis at the Ministry – prepare the Minister’s ‘selit’ for lunch, and his coffee with milk?
Shall we call the Red Cross to help with the “voluntary” running of our health ministry?
Right now it looks like she is self-appointed damage control officer.
Minister Farrugia is finding out, to our cost, that administering a huge and complex health ministry is rather more complicated than presiding over a village kazin tal-banda.
Happy Easter.
On a different note. The Times reports that Marlene is doing “voluntary” work for her partner. Who are they kidding? Or is this another April’s fool joke? Are these people such a joke or are they simply unbelievably stupid and arrogant?
http://www.timesofmalta.com/articles/view/20130401/local/minister-orders-journalists-out.463674
More changes in the Cabinet.
Marlene Farrugia is new Deputy Minister of Health.
http://www.maltatoday.com.mt/en/newsdetails/news/national/Farrugia-apologizes-to-media-wife-fulfilling-voluntary-role-at-ministry-20130401
I know this is a mega ministry however in your Point 1 I respectfully wish to add also “Land Registry”. And that makes this Ministry Mega-Mega.
Imbaghad lill Herrera tawh (it-teatru) Manwel. Hehehehe. U l-anqas frank ghax irid jaqsmu ma’ Kenneth.
http://www.timesofmalta.com/articles/view/20130401/local/minister-orders-journalists-out.463674
What we are seeing here is the institutionalisation of unethical behaviour.
Vincent Moran used to have his wife Maggie in his office and now Marlene has formally told us that her life-partner Health Minister Godfrey Farrugia is going to be with her at his ministry.
I’m starting to understand Jeffrey.
Not only was the late Maggie in charge of Censu’s private clinic which he attended on a regular basis during his tenure as Health minister, but she also used to show up at St Luke’s Hospital and Karin Grech Hospital to tell everybody how to do their job, at any time of the day and night.
How unprofessional. Health Minister already cannot cope, hence his partner helps ‘voluntarily’.
And it’s only been three weeks.
http://www.timesofmalta.com/articles/view/20130401/local/minister-orders-journalists-out.463674
Kick perm secs out, order journalists out, move wife in.
If journalists want to understand what’s going on, just queue at Marlene’s brand new office, next to Zurrieq FC, bit of a wait, people lined up to end of street.
Franco’s office, right opposite, abandoned. The chaos ensues.
It is not a question of coping , it is an indication that his partner does not thrust him professionally in his ministerial duties.
She must hold his hand otherwise he gets lost.
Are we sure Marlene Farrugia is not taking the role of Minister and the Minister is acting as the volunteer?
The cost of the Muscat First Republic Cabinet will amount to euro 62 million over 5 years (The Times, 15 March 2013).
This is around euro 32 million more expensive than the cabinet of Lawrence Gonzi.
However, this is euro 62 million cheaper than the REAL Muscat cabinet, which will comprise of 14 Ministers, 8 Parliamentary Secretaries, and their 23 spouses.
I’ve heard everything now. Tomorrow I’ll ask my boss to bring in my little-bit-on-the-side to work to massage my ego. Should work out to our mutual benefit.
Are these people serious?
Today I had the privilege of letting The Times know what I feel about them on their on-line survey. I hope that many others will do so.
Where is it ?
When you enter the site the survey comes up.
Yesterday when coming from Gozo I went to buy the Independent and was very very happy to see that I got the last copy of the paper whilst there whole stack of the Sunday Times – I hope they (The TImes) are getting the message.
Same here.
http://www.maltatoday.com.mt/en/newsdetails/news/national/Farrugia-apologizes-to-media-wife-fulfilling-voluntary-role-at-ministry-20130401
Wife or partner?
Bil-Malti li jifhmu kullhadd: “Dawn pogguti jew mizzewgin?”
Cyrus ukoll qieghed mal-partner fl-istess ministeru.
Veru qalulna li se nkunu qisna familja tant kemm se nkunu nhobbu lil-xulxin. Imma issa z-zejjed.
[Daphne – No, they are not married. People think they are because of the surnames, but Farrugia is Marlene’s maiden name.]
I did the same as Giovanni by taking part in the The Times on-line survey.
So did I.
He will always have the last say with her. That will be
‘YES Dear, YES Dear !
Your statement on criminal defamation is misleading. Most countries, including many European countries, have criminal defamation laws, from Italy and Spain to France and Germany up to Sweden and Finland. Criminal defamation cases are not unheard of in Europe.
England and Wales have recently abolished this law, but they are an exception in this respect. One must recall that, as in the case of homosexuality, prominent persons were jailed for criminal libel, and so this law was repealed in England and Wales (and not in all the UK).
The European Court of Human Rights has never ruled that criminal defamation runs against freedom of expression. Therefore there is no reason to abolish this law. However the law should be amended so that journalists would not be imprisoned for criminal libel.
It must also be kept in mind that in the UK and other countries the amount of civil damages for libel is usually much larger than the amount which can be granted under Maltese law. The law in many countries also prohibits slander, insult and hate speech. Should all these offences be abolished as well?
[Daphne – Criminal defamation, David, makes the news when it is used to persecute and harass journalists. Criminal defamation is, in essence, a whole different animal to libel. A simple lie constitutes libel – but for criminal defamation to take place, the slander must be gross, aggressive and even continuous. Otherwise it’s plain old libel. The criminal defamation law was well-intentioned, but it has been abused of repeatedly by politicians in pursuit of journalists – rather than filing a civil suit for libel, they bring in the police to prosecute for criminal defamation, generally over the most spurious matters. And they do this because of the harassment factor. THAT is the problem.]
Does anyone know know whether the commissioner of police shall also be asked to resign?
“Sunday newspaper Illum is informed that Police Commissioner John Rizzo has come under pressure to tender his resignation.”
http://www.maltatoday.com.mt/…/Police-Commissioner-under-pressure-to-...
Naqra puxxjatura a’ la Toni Zarb.
Political Conscience:
It is not what a lawyer tells me I may do, but what humanity, reason, and justice tell me I ought to do.
– Edmond Burke 1729-1797
Daphne, you forgot to mention that Manuel Mallia is also the Minister for the Attorney General’s office, the entity that is ultimately responsible for the prosecution in the lower and upper courts.
I think that if Dr. Borg Olivier were to be found guilty by the Court, or maybe even before that, he has good grounds to refer the case to the Constitutional Court and eventually the ECHR for the reason that virtually all government departments involved in the justice process fall under the direct responsibility of the complainant.