The Malta Independent 5 December 2021, Sunday

Immune from prosecution?

Mark A. Sammut Sassi Sunday, 21 November 2021, 10:00 Last update: about 14 days ago

The question has arisen whether former EU Commissioner John Dalli enjoys immunity from prosecution. While EU law does afford immunity, I think that it applies only if an official breaks the law in the good-faith exercise of his functions.

But if an official is being prosecuted because what he allegedly did was in bad faith, then there can be not even the presumption of immunity.

As I dislike jumping the gun, for the moment I'll just say that I'm still waiting to hear the prosecution's submissions in court and what the defence has to say before making up my mind. But if Mr Dalli did indeed get involved in bribery, then there's no way he could have done it in good faith. Bribery, corruption, kickbacks and all that are by their very nature in bad faith! How can anyone ever accept a bribe, or even start the process leading to it, and be in good faith?


If the prosecution's truly convinced that Mr Dalli was involved in corruption, then the very nature of the accusation precludes immunity, as such immunity is afforded only to officials for good-faith acts performed in the exercise of their functions.

Surely the prosecution is not implying that people occupying such positions enjoy immunity rationae personae and not rationae materiae? Personal (as opposed to function-related) immunity transpires from no reading (literal or otherwise) of EU law. The very fact of asking that immunity be lifted can have grave implications as, irrespective of the answer, it could seem to imply the prosecution is not sure about the facts.

I'm beginning to suspect that all this might in the future shield Joseph Muscat from possible prosecution. Perhaps I'm stretching it, but wasn't Muscat an EU official as member of the Council of Ministers? If Mr Dalli enjoys immunity, why not Muscat as well?

I won't argue the point further, for obvious reasons. But let's keep our eyes open. John Dalli shouldn't enjoy immunity - not only because EU immunity is limited to official acts done in good faith but also because immunity for Mr Dalli could serve as precedent for Muscat.


Abortion: definitions

I'm not sure Robert Abela plans to legalise abortion. If he does legalise it, it will be unplanned. So the pro-choice minority might as well stop the fracas and focus instead on real problems (environmental degradation, heritage obliteration, transport mismanagement, etc) and let the PN fight the fruitful fights. Abortion isn't one of them.

That said, I think a few definitions are in order if a "mature" discussion is to take place any time in the future.

First: "conception". It's when a sperm cell fertilises an egg cell, creating a new, genetically unique human being.

Second: "abortion" versus "feticide". "Feticide" means the "killing of a foetus", just like "homicide" means the "killing of a human being", "matri-" or "patricide" - the "killing of one's mother or father", "regicide" - the "killing of the monarch", etc. "Abortion" means the "termination of a pregnancy".

This is why the Morning After Pill isn't considered an abortion-inducing pill, because it stops a possibly fertilised egg from implanting itself on the wall of the uterus. Pregnancy starts from the moment the fertilised egg implants itself on that wall. Abortion is the termination of pregnancy. Therefore, if MAP prevents the fertilised egg from implanting itself, there is no pregnancy, and therefore no abortion. Clearly, this is all hair-splitting and defies the principle of protecting life from conception.

Third: "life from conception" versus "pregnancy". "Life from conception" implies protecting the new human being; "pregnancy" implies protecting the process whereby the new human being develops. Think of "employee" and "career": terminating an employee's career versus terminating the employee.

Fourth: "women's dignity". This phrase is somehow related to rape. Whereas nobody in his right senses condones rape, it's also true that rape victims aren't always treated with dignity. This is repugnant and condemnable.

Psychological studies show that women are blamed for being the victims of sexual harassment and men often empathise with the perpetrator! I find this disgusting and revolting. And, frankly, not at all manly; quite cowardly, actually.

That said, it doesn't follow that women should have the right to kill the foetus resulting from rape. Just a few days ago, a Syrian man was acquitted of raping a woman in Paceville in 2019, as the Court (presided by a lady magistrate) decided that the sexual encounter had been consensual.

Had that encounter resulted in a pregnancy, and the woman aborted, there would have been two consequences. One, the abortion would not be justified on the premise of rape, as the crime never subsisted. Two, the woman would have been elevated to the status of adjudicator, a status only judges and magistrates are entitled to, and then only in a judicial setting (i.e., related to function not person). Nobody has the faculty to take the law into their own hands, thereby circumventing the judicial process, leading to a subversion of legality and rule of law, and to inequality.

Fifth: "equality of women". An oft-repeated argument is that, for women to enjoy their sexuality on an equal footing with men, women shouldn't face the consequence of having a child after having sex.

This is a false argument. If a man has sex with a woman and a child ensues, the child belongs to both. The consequence, therefore, applies to both females and males. More importantly, we are not beasts but rational beings. Women aren't enslaved to hormones, can control themselves and can choose not to have sex when they're fertile.

The counterargument that men don't have such restraints is, again, false. Different psychological make-ups mean that women's rate of success in finding mates is very high (as men accept offers instantly) while men's chances are always slimmer (as women usually don't accept offers instantly). Therefore, looking at the bigger picture, the two scenarios balance themselves out.

A rational woman controls herself when she's fertile because she can always find a mate when she's not fertile. Unless, she's at the beck and call of her desire. But, then, if she's incapable of controlling herself, is she even mature enough to have a "mature" discussion on abortion?


Peregin's Falcon

Are LovinMalta's unjustified attacks on Bernard Grech a long-sighted pre-emptive manoeuvre to save Christian Peregin's post-election fate in the long-term strategy underlying the liberal take-over of the Nationalist Party?


Kevin Aquilina...

...Professor at the Faculty of Laws, is one of Malta's more insightful thinkers. He presented a paper at a recent Malta Historical Society conference in which he analysed post-Independence Malta's law-making experience. He argued that political independence hasn't meant cultural and intellectual independence, as the Maltese keep referring to English/British law.

Professor Aquilina's initial foray into this subject is fascinating. I'm waiting for the elaboration of his ideas with intellectual excitement for at least two reasons.

One, the historicist idea that a society's legal developments reflect the history of that society.

Two, the corresponding idea that a society's historical experience doesn't always qualify to elevation to a universal. While some experiences are common to all of humankind, others are but local in relevance. The legislator of Country A who wants to import Country B's legislation should analyse that legislation's genesis in order to understand whether the forces that created it in Country A have equivalents in Country B.

When the British colonised Australia, Canada, and elsewhere, they could introduce the Common Law because they wiped the natives out (physically and/or morally). In Malta, this couldn't happen, as we had our own pre-existing system.

Bottom line: there's still much to be done on the national identity front, and Kevin Aquilina's a front-liner. Kudos and looking forward!


Maltese Quirks (17)

"Konjugu". Yes, here it is for you. And all this time, in my inscrutable ignorance, I thought it was "konjuġi"! Now, I realise it's "konjugu" and "konjuġi"! I've also discovered "konjugu superstitu"! This is like that other pinnacle of human ingenuity, "triq prinċipala"!

Where are the Language Czars? Escaping from the Language Bolsheviks?


Huge LHD lorries

There seem to be quite a few left-hand-drive humungous lorries ravaging on Malta's roads. Are tests being conducting to establish if Maltese drivers actually know how to drive LHD behemoths? Or is it anarchy?

Is our Home Minister too busy overseeing "self-suspensions" to notice that road safety in this country is the twin of prisoner safety at the Correctional Facility?


My Personal Video Library (26)

In the 1960s, a sentiment that sociologists call "sympathy for the devil" transformed criminals (or "deviants") into heroes and free-standing angels. One American sociologist whose paper I was recently reading, put it like this: "American sociology of deviance went from Howard Becker's 'appreciation' of his friends jazz musicians smoking dope (Becker 1963) to a 'Romantic' heroization of the outlaw or maybe we should say 'sanctification'".

This trend, argues this sociologist, erupted as "harsh criticism of traditional ways of penality and especially of the prison. It is no accident that in these years we find prison protests and riots in all industrialized countries, continuous calls for penal reform that in some cases came close to asking for the outright abolition of the penitentiary, the emergence of a revisionist history and sociology of punishment that culminated in Michel Foucault's Discipline and Punish in 1975, and finally a decreasing trend in imprisonment rates in many western countries."

To my mind, this is pertinent intellectual background for an quick analysis of the contemporary TV series Lucifer, in which the Devil leaves Hell, tired of his role as Gaoler and Punisher of sinful souls, to spend his eternal life on Earth, sleeping with the daughters (and sons) of Man, consuming copious amounts of drugs and alcohol, while falling in love with a police detective and then making a child with her.

The protagonist, Lucifer Morningstar (intelligently carved out of Jewish folklore and other sources), is played by an actor whose father is, ironically enough, a clergyman. The script discusses philosophical questions, mostly on free will, and the series is a succession of episodes that describe a nihilistic society in which psychotherapists sleep with their patients and make babies with angels while cheating on them, and decent female police detectives see nothing wrong in having a child with drunkards who're also drug and sex addicts as long as they're full of dough.

The morally tricky aspect of series like this lies in their smart ambiguity. You end up watching them whatever your political outlook. If you're liberal, you relish the patent celebratory tone; if you're conservative, you're bound to wish you could put your finger on that latent condemnatory je ne sais quoi that keeps eluding you. Either way, the show's producers nurture that tantalising ambiguity and monetise it... in a way that can be best described as... devilish.

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