When the Rule of Law is a Gambling Act

Five months ago I spoke (Of Leopards and their Spots) about the contradictory messages that were being sent out regarding the legality or otherwise of the various gambling machines that had cropped up around the island:

First we had an article discussing recommendations made by Parliament’s Social Affairs Committee with regard to illegal gamning arcades. Now the word “illegal” in that phrase begs some questions of its own especially since by admission of the Finance Minister the arcades are not directly violating any law but rather stand in a limbo of non-regulation. What that means is that there is no clear regulation prohibition of these arcades and in fact the Committee recommended proper regulations be drafted. In the meantime however it is a legal nonsense to suggest that the arcades are illegal until the regulations rendering them illegal is actually drafted. There are after all such principles as Legal Certainty and Legitimate Expectations.

Yesterday, the entire (known) gaming arcade industry came to a halt thanks to a nationwide raid by the police. According to the Times a Government spokesman stated that “none of the arcades had been operating with the necessary Gaming Authority licence.” Interesting. Back in March J’accuse had pointed out the importance of “legal certainty” and “legitimate expectations”. Judging by Finance Minister Tonio Fenech’s reactions to the Times questions nothing much has changed in that respect:

Last March, Finance Minister Tonio Fenech told this newspaper that it was difficult for the police to take action because of lacunas in the law. Back then he had already warned the arcade owners that their future was not guaranteed. When asked what had changed to allow yesterday’s raid, he said the complications in enforcement had been ironed out but he would not be more specific.

The lack of specificity is worrying – particularly within the greater picture of this government’s attitude towards the rule of law. According to the same article, “(P)arliament is now expected to approve new regulations governing these parlours after the summer recess.” – which means what? Was today’s raid justified by a proper interpretation of the law? Was there a law to interpret?

Asked why they had not been given time to conform with regulations after being allowed to operate without a licence for years, Mr Fenech insisted they had been interpreting the law incorrectly and trying to operate under the pretence that their machines were not gambling but amusement machines, which they evidently were not. “It is not an issue of coming into line. What I would suggest is for those operating without a licence to close down and apply for a licence when the new regulations are issued,” he said, adding: “I am not here to safeguard business which is abusing the vulnerabilities of people.”

If Mr Fenech is right and it was so “evident” that the machines were illegal then why wait for five months for the raids? As for the “business which is abusing the vulnerabilities of people” – that’s a long shot coming from the Minister who is also partly responsible for attracting the custom of international betting and gaming companies who “abuse the vulnerabilites” of people worldwide.

So. We have a list of questions for Mr Fenech. How do “lacunas in the law” in March become “evident” certainties in August, enough to justify a police raid? How does he plan to reconcile government’s policy on gaming arcades with its policy of attracting betting companies to Malta? As a former professor of mine loved to repeat: “Quid juris?”