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I.M. Jack – Sunday’s Legal
The law has become a dominant part of the news over the past year or so and not only because of the supposed reforms that are being carried out (thanks to/in spite of/to comfort/with or without) Franco Debono. Ubi societas, ibi ius or so the latins teach us – wherever there is society there is the law. A legal system is at the core and backbone of our society and it allows us to survive each other and our naked ambition and instinct. Respect for the law and its principles are probably much more crucial for the survival (and creation and promotion) of a just society than economic prosperity. We are witnessing however a complete dilution and dumbing down of our legal framework.
What we have is a combination of a full frontal assault and denigration of all things legal. We have seen columnists who assume that their appreciation of the law with all its underpinnings and implications is superior to that of any legal practitioner. We have witnessed lawyer politicians who opt to prostitute their profession in favour of political mileage. We have seen the gradual erosion of public confidence on the law and the legal system based on urban appreciation of legal events, shoddy and sensational law reporting and opportunist political mileage. The law faculty continues to gaze at its toes as its graduates increasingly seem to be unable to engage in logic and analysis due to serious shortcomings in the linguistic department.
The judicial branch is still under fire from many quarters and is still reeling from the reputation-killer events of recent memory. The Chamber of Advocates seems to be more intent on either playing second fiddle to political interests or in getting a piece of the power cake by pushing for more control over warranted lawyers – a push that smells of control of competition as much as anything else in this country of fishpondism.
Court Detectors: The Gozo law courts now have new detectors following the appalling stabbing attack that involved among others my childhood friend Kevin Mompalao. It is ridiculous that this kind of event has to happen before the obvious – such as the installation of a metal detector is put into place. Having said that, once the detectors WERE put into place it is rather useless to complain that they were formerly used at the courts in Malta as though this makes them bad metal detectors. It seems they were only removed since they could not cope with the flow of persons at the courts in Malta. Unless I am mistaken the courts in Gozo do not exactly deal with the same number of “clients” daily. Also, much of the agitation by the lawyers in Gozo stank of political manipulation. Justyne Caruana would do better to call for better ethical screening of some lawyers who practice regularly in Gozo and run on the Labour ticket. Who knows maybe she should start asking questions how a lawyer ends up owning property that used to belong to clients he “represented” or for example how he might decide to ignore the legal institute of curatorship. They are legitimate questions – based on the respect of the law that we are all trumpeting about. Go ahead Justyne… start that kind of campaign and I’ll back you on that one.
Reforms: I was asked to take a look at the Draft Administrative Code that is presently before out committee for legal reform in Parliament chaired by the Hon. Franco Debono. This Draft symbolises all that is wrong with the current wave of ambitious reforms. This is not the forum to even begin to discuss what is wrong with the “code”. The weakness of the legal drafting is only the tip of the iceberg. The administrative code nibbles away at crucial principles of our legal system while purporting to replace them. Are we really contemplating this kind of shoddy legislation simply because one MP decided to make much noise? While we can understand how the man in the street can be appeased with talk about efficient legislation right after a bitching session about the state of the courts, length of court cases and cost of lawyers bills surely the legal minds of this nation have not been flummoxed into submission to accept anything that has been thrown into the playground of toys for ambitious reformists?
That Constitutional: I followed with interest the tennis match between Giovanni Bonello and Giuseppe Mifsud Bonnici with regards to the issue of declarations of unconstitutionality by the courts of Malta. In a very small nutshell this is what they were saying: Judge Bonello implies that whenever a court decides that applying a law to the facts before it would be unconstitutional then that law should automatically be null and void. He adds that such a law should not require a parliamentary intervention for it to be rendered void thenceforth – the law would become null and void erga omnes. Judge Mifsud Bonnici on the other hand has argued that the nullity is only with regards to the facts before the court and that the law is not automatically rendered void. For what it matters J’accuse is in full agreement with the GMB version – particularly because the wording of our constitution is quite clear using the terms “to the extent of the inconsistency”.
Having said that what is truly worrying is that this kind of debate is played out on a newspaper. We do not have any serious fora for non-partisan discussion on legal developments. It is definitely a shortcoming of the faculty of laws. It is also the result of the lack of continuing education among us lawyers who prefer to concentrate on the more profitable sides of the profession. A direct consequence of this is that the biggest “academic” interests in the laws are usually intrinsically linked to professional interests. Drafting of laws – even special (especially special) laws – will inevitably end up in the hands of those lawyers who have a direct interest in the outcome. Do not confuse specialist with direct interest. The reason that the rules relating to parliamentary representation, interpretation of parliamentary procedure and the issues of separation of powers have taken on a downward spiral is because the “lawyers” busy dabbling with these laws are those who have a direct interest in the results: polticians.
Discussing this kind of legal issues and reforms on the Times and Xarabank is not exactly encouraging for the future. Kudos, by the way, to Chief Justice Silvio Camilleri for his clear unconditional explanation to the Times as to why he will not abet their efforts at sensationalising the courts and their work by replying to their queries.
That’s all for legal sunday.
Having once suffered a bad experience at court with an opposing party, though at a much lesser scale than the recent event, I express my full sympathy with Dr Mompaloa.
Regarding the constitutional debate the point is not “the extent of the constutionality” but is the constitution supreme, as the constitution itself and the former judge says, or is parliament supreme, as the former Chief Justice seems to argue?
Maybe you can explain futher your criticism of the Chamber of Advocates and the actions of the Gozitan lawyers criticisng the lack of security. Regarding the metal detector which was used in the Malta courts maybe the point regarding the fact they were found wanting in Malta was if this means that they are in any manner defective.
Another issue which I think should be discussed is whether the criticism of the judiciary by the press, by lawyers and by the public at large is justified and if the chief justice’s reply to criticism of the judiciary by criticising the press is similarly justified and if his comments were appropriate.
Legal issues as also econonomic or theological or medical or other issues can be discussed in various forums as in academic conferences or the university. However they can be discussed by the media in general as well especially as these issues often are of interest to the general public and should not be dicussed only by so called experts.
For me who is not a big fan of ‘Law’ as field of inquiry, this piece is particularly insightful, and it even reveals that j’accusse might have the full spectrum of human emotions along hit cynical wit and sardonic humor. Bravo!
But I must take exception to your first paragraph. If what you care about, what you want, your ‘rasion de blogger’ is a just society, it is superfluous to try and rank the various spheres of life and subordinate something like ‘economy’ to ‘law’. Besides the Latins might be wrong too, it might be that it is law that demands there be a society, not the other way round. The point is that either way it makes no difference to the rest of your text, except in informing me that the author looks at the world through law colored spectacles!
Try looking at the world through my spectacles, which are ‘Technology’ colored (and quite thick btw). Isn’t technology even more primary than all the things you list for the formation, survival and establishment of justice in society? Note it’s Technology with a capital T, wherein currency, legislation, the state, are all forms of Technology … techne that humans come up with to interface their lives with the world.
From this perspective, your text sounds like proselytizing for LL.D.-ism, which, being familiar with your regular blogging I happen to know it actually is not. But my I do feel that the metal detector issue might have been addressed too shallowly. I hope you concur that metal detectors are no solution to whatever the problem is, they are merely stop-gap symptomatic relief. So they are fine, as long as we go ahead and trey and clearly identify what the problem actually is, and design a solution for it (which might, btw, be a legal rather than technical solution).
(FYI my knowledge of law is close to zero, all I have to guide me in ‘deconstructing’ your post are a piece by Cass Sunstein “On The expressive Function of Law” from 96, which is in some ways the flip-side of Lessig’s “Code 2.0” on how software code becomes functionally equivalent law.)
On the constitutional law debate you can also read the following lucid explanation on the supremacy of the constitution http://www.timesofmalta.com/articles/view/20120613/opinion/The-Constitution-is-supreme.424084
Yawn. Lucid eh Dave? The extent of your research seems to be the Times of Malta. Slowly but surely….
It is not a question of the extent of reasearch but that Professor Aquilina scholarly contribution to the debate explained clearly the concept of supremacy of Parliament by logical and straight forward arguments. What more research is needed?