The Malta Independent 22 September 2021, Wednesday

NGO says justice system weak with the strong, strong with the weak

Thursday, 5 August 2021, 11:04 Last update: about 3 months ago

Moviment Graffitti along with the Maltese Association of Social Workers and aditus foundation today held a symbolic activity in front of the Law Courts to reiterate its position regarding the “inhumane and unjust judgement” whereby two migrant mothers were handed a six-month imprisonment sentence by the Court of Magistrates for the use of forged passports, leaving their young children ‘orphaned’ by the system.


Moviment Graffitti reiterated that this judgment is a manifest example of institutionalised racism since a number of other more lenient and suitable sanctions could have effectively been meted out by the Courts. Indeed, nothing in the law precludes the Court from handing down a community-based sanction in lieu of imprisonment in such cases.

Community-based sanctions under the Probation Act (Chapter 446 of the Laws of Malta) are routinely utilised for offences which carry a sentence of up to 7 years imprisonment and for offences which pose more harm to victims of crime and society in general compared to the use of forged documents by asylum seekers. It is thus clearly the case, that in such instances, the criminal justice system is being strong with the weak and weak with the strong.

Moviment Graffitti welcomes the sensitive coverage on the issue by the media, as well as the strong position issued by Pauline Miceli, Commissioner for Children whereby she urges the court to redressitsjail sentence in order to minimise the children’s trauma and harm, in line with the provisions of the Convention for the Rights of the Child, which sustains that children should only be separated from their parents as a last resort and where it is in the child’s best interest.

Whilst due to the plight of the children involved, this case aptly raised greater awareness on the injustice and inhumanity of the Criminal Justice System towards the most weak and vulnerable, it is to be noted that the discriminate use of sentencing towards migrants and asylum seekers by the Criminal Justice System, is a long-standing ongoing practice, which unfortunately often goes unnoticed. Indeed, the overpopulation of the prison system can be partly attributed to the indiscriminate use of imprisonment sentencing for persons found guilty under the Immigration Act without any consideration to mitigating circumstances.

In view of this, Moviment Graffitti called for an immediate redress of this practice and for the application of more humane and effective alternatives, which reflect the humanitarian nature of migration and asylum seeking rather than their criminalisation.

Any punishment meted out to Maltese and foreign nationals needs to be just, reformative and proportionate to the crime committed rather than utilised as a form of retribution, incapacitation and deterrence. Otherwise, as in this case, it boils down to a form of institutionalised racism emanating from a criminal justice system which is unfortunately strong with the weak and weak with the strong, the NGO said.

The Malta Association of Social Workers said is appalled by the Court judgement in the last few days, which sentenced two mothers to six months in prison and their children were consequently placed in the care of the state. The women were indicative victims of human trafficking. The Court decision has separated the children from their mothers aggravating their likely trauma. MASW is concerned about the effect such a judgement will inevitably have on both children and parents. The justice system is failing the most vulnerable as such judgements, when compared to other situations, sound hugely disproportionate.

For example, how can perpetrators of sexual abuse of children often be given a suspended sentence by the same Court but an undocumented migrant be sent to 6 months’ prison?

It is our firm opinion that:

1. The state needs to ensure that the children have substantial daily contact with their parents while they are in the care of the state

2. Alternative community based consequences for the parents should be considered while safeguarding the best interest of the children involved. Therefore the decision to separate the children from their parents should be revoked immediately through any legal means

3. Child protection services should proactively advocate to keep children with their families whenever possible as it is their intrinsic right, according to the UN Convention for the Rights of the Child

4. The government needs to implement an effective strategy to combat human trafficking

5. Politicians need to act now to reform the criminal justice system, following consultation with key stakeholders, to be child-centred as children cannot wait any longer.

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