While Giovanni Bonello is going hoarse preaching the Gospel of Reason week in, week out, a fortnight ago Kevin Aquilina made a powerful indictment on this paper’s sister edition. Both seem to me to have been met with a tomb-like silence.

Professor Aquilina is not some new kid on the block. He is Dean of the Faculty of Laws at the University of Malta which, in a normal country, should mean a lot. The phrase from his article of a fortnight ago which struck me was this: “as the law is applied today (not as it is written down)”.

This simple phrase, if its implications are allowed to soak in, is nothing short of earth-shattering.

“As the law is applied today... not as it is written down!” One is left almost speechless. What does it even mean: that the law is not applied as it is written down? Then what is applied? Somebody else’s idea of what the law should be? And who is that somebody? Who empowers that somebody to apply their own law rather than the law of the State?

I’ll be very frank about this. I was shocked but not surprised. And I was shocked not by the statement itself, as bewildering as it may be, but by the utter silence with which it was met. Not a reaction from the Chamber of Advocates, from the Law Courts, from the omniscient Minister of Justice, from the Minister for Home Affairs. Nothing but complete silence.

Not even that know-it-all octogenarian – who deludes himself that he is some avuncular oracle and wastes gallons upon gallons of ink preaching pro-government rubbish based on his lackey-like experiences in the UK – thought it was worth the effort to ask a few pertinent questions. Like, what kind of civilised country applies the law not as it is written down?

Ear-shattering silence and this is what shocked me.

I was not surprised because I had been made immune to this phenomenon when I was still a young man, and somebody stopped me in Republic Street, not far from Wembley Store, to tell me that I was an eccentric to believe that the law should be applied as it is written down! Then I was taken aback. This gentleman was sort of telling me to get off my high horse and accept the facts of life: the law is not applied as it is written down! On that occasion he used the Merchant Shipping Act as an example. (If he’s reading this article, he will certainly remember the incident, and I can tell him that although his words did shock me on that day, I never stopped considering him a sincere person and a friend, because the spirit of the conversation was avuncular and friendly.)

Some 16 or 17 years have since passed and I still believe that the law should be applied as it is written down. Am I an eccentric? Possibly. Do I care? Not at all!

Why should I be an eccentric to believe that the law should be applied as it is written down?

Now, the legal theorist among readers will smile at that (rhetorical) question, because the legal theorist knows that there are many issues to raise, such as the different approaches to interpretation and the relationship between one individual provision and the legislation of which that provision forms part and the entire corpus of laws and human rights, and so on. The legal theorist knows that the intention of the legislator has to be sought in the wordings of legal provisions. The legal theorist knows that some laws are like living trees, they grow and their growth reflects their environment – in the sense that a tree which grows in a wind-swept field will have a shape different from a tree of the same species which grows in a sheltered wood.

Whereas I do not dispute the legitimate reaction of the legal theorist, I would gracefully tell him or her that that is not my point. I have argued elsewhere, for instance, that we Maltese should not quote legal arguments made by Italian scholars on provisions of their Civil Code of 1942 which have no equivalent in our Civil Code (loosely based on their Code of 1865).

But my point here is not legal; it is political and cultural and is that one cannot have a system in which the law says one thing, and the State behaves in a different way.

Kevin Aquilina wisely and rightly called his article of a fortnight ago ‘Legal uncertainty and disproportionality’. I will now commit a mortal sin and quote from Wikipedia: “Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. Legal certainty is internationally recognised as a central requirement for the rule of law.”

If we live in an environment in which the law says one thing, and the State does another, we do not have the Rule of Law. We have a jungle. And to survive in a jungle you need either to be big and strong or else to enjoy the protection of somebody big and strong. This defeats the ideal of equality in the eyes of the law.

Should we care about ideals? Yes, because ideals are the antidote to the state of nature. Without ideals of order and equality we go adrift, carried by the conflicting currents of existence and ending up sinking in the whirlpool of chaos.

 

My personal library (9)

Constitutional Law in Malta (Wolters Kluwer, 2018) is not only Kevin Aquilina’s latest book but also one of my latest acquisitions. It arrived the same day I received two other publications: a pamphlet of 1838 called Quelques Notes sur les Avantages du Jury en matière criminelle and Histoire du droit pénal et de la justice criminelle, by Jean-Marie Carbasse. But it was Professor Aquilina’s book that got my immediate attention.

It is a succinct work, collating the different legal instruments making up Malta’s droit constitutionnes. I am using French because the English word ‘law’ fails to deliver because it can mean both droit (id-dritt) and law (il-liġi). Kevin Aquilina covers all the lois, il-liġijiet, which make up the droit, id-dritt.

He starts by giving a historical outline of the Constitution of Malta and a general introduction to the Maltese State set-up. He then goes on to discuss the sources of Maltese law (international law, European law, domestic sources). He logically proceeds to discuss the form of government, and then moves on to describe the State and its subdivisions. He concludes by analysing citizenship and fundamental rights, and other issues such as religion, economic activity, the armed forces... in brief, it’s a veritable tour de force which anybody interested in Malta should read or at least consult every now and then.

When you consider Kevin Aquilina’s skill at treating such a complex subject not only with dexterity but also by disarmingly, unassumingly and artfully employing apparent simplicity, you can easily understand why the indictment he made in his article of a fortnight ago acquires such tremendous weight.