This article discusses a fundamental juristic concept in law - the human rights maxim of legal certainty – that has been the subject of discussion by various political and legal philosophers and courts throughout time.
Aristotle noted that Solon’s Constitution had its power augmented ‘by the want of simplicity in the framing of the laws, and the uncertainty in their interpretation.’ Thomas Hobbes argued that the legislator must aim for making laws which, though short, are properly framed. Charles de Secondat Baron de Montesquieu held that lawgivers ‘ought to be particularly attentive to the manner of forming them. The style ought to be concise. The laws of the [Roman] Twelve Tables are a model of conciseness; the very children used to learn them by heart... The style should also be plain and simple, a direct expression being better understood than an indirect one… When the law has once fixed the idea of things, it should never return to vague expressions’. He further contends that: ‘The laws ought not to be subtle; they are designed for people of common understanding, not as an art of logic, but as the plain reason of a father of a family’.
Edmund Burke also emphasised the need for legislative assemblies to ‘form a body of law, which shall be short, simple, clear, and so forth. That is, by their short laws, they will leave much to the discretion of the judge; whilst they have exploded the authority of all the learning which could make judicial discretion, (a thing perilous at best) deserving the appellation of a sound discretion’. John Stuart Mill held that: ‘In making laws too, not only is there a demand for powers of mind to cope with the disorder and complication of facts, and the abstruseness of reasoning, but there ought to be also a complete mastery of language, that nice and delicate instrument of thought and communication, by the clumsy handling of which so much confusion and uncertainty is yearly produced in legislative enactments. Every word in a law is of importance: every sentence ought to exhibit that perfectness of expression which is to be looked for only from the skill and caution of undistracted minds. Well might Bentham observe, that the words of a law ought to be weighed like diamonds’.
Flavio Lopez de Oñate opined that legal certainty comprises precision, fixity, and certainty. He continues that uncertainty is the product of ambiguity and obscurity and the result of gaps in the law, lack of simplicity and stability in the text of the law, a multiplicity of provisions through which the law is articulated, the plurality of legal provisions, and the difficulty and length of judgments. Åbe Frändberg identified four main factors which obstruct legal certainty. The legal certainty defects are: incapability, incomprehensibility, unobtainability, and unreliability. Robert Alexy considered that legal certainty ‘requires the norms of a legal system be as determinate as possible and that they be observed to the maximum degree possible’.
The Council of Europe’s European Commission For Democracy Through Law - the Venice Commission - in its Report on the Rule of Law included legal certainty amongst the necessary elements of the Rule of Law, these being: ‘(1) Legality, including a transparent, accountable and democratic process for enacting law; (2) Legal certainty; (3) Prohibition of arbitrariness; (4) Access to justice before independent and impartial courts, including judicial review of administrative acts; (5) Respect for human rights; (6) Non-discrimination and equality before the law’. The Venice Commission considers the following elements as forming part of legal certainty: ‘publicity, precision, consistency, stability, non-retroactivity and the finality and binding force of decisions’.
Legal certainty is deemed to be a constitutive ingredient of the rule of law as understood around the world (apart from Malta, of course!). It is evidenced in the documents adopted by various international and regional institutions, including the European Union. For Takis Tridimas, legal certainty expresses ‘the fundamental premise that those subject to the law must know what the law is so as to be able to plan their actions accordingly’.
Tom Bingham stressed that the ‘law must be accessible and so far as possible intelligible, clear and predictable’. D. J. Harris considered that, in so far as foreseeability of the Criminal Law is concerned, ‘an individual must be able to know from the wording of the relevant law and the courts’ interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed’. Pieter Van Dijk noted that ‘an offence must be clearly defined in law’ and opined that this ‘requirement serves to avoid a criminal conviction being based on a legal norm of which the person concerned could not, or at least need not, have been aware of beforehand’.
The European Court of Human Rights, with reference to Article 7 of the European Convention on Human Rights, has held that this provision ‘prohibits criminal convictions and sentencing without legal basis... it contains the principle that criminal laws have to be sufficiently clear and precise so as to enable individuals to ascertain which conduct constitutes a criminal offence and to foresee what the consequences of transgressions will be’. It further proclaimed that ‘one of the fundamental aspects of the rule of law is the principle of legal certainty’. Legal certainty requires an explanation of a ‘law’ which has to be both ‘accessible’ and ‘foreseeable’: ‘It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege)’.
Legal certainty further embodies: ‘The principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him or her liable’. Finally, Article 7 establishes a rule against arbitrariness and uncertainty of criminal offences and penalties: the object and purpose of article 7 is that ‘no one should be subjected to arbitrary prosecution, conviction or punishment’.
The criminal offence concerning racism and xenophobia is contained in Article 1 of the EU Council Framework Decision 2008/913/JHA of 28 November 2008. As it stands, this provision of European Union Criminal Law is neatly drawn up. It is short, straight to the point and subdivided into paragraphs. Each paragraph criminalises one genus of conduct even if that genus might be subdivided in turn into a number of species.
Article 1, paragraphs (a) and (b), of this Council Framework Decision has been transposed in article 82A of the Criminal Code of Malta whose marginal note reads ‘incitement to racial hatred, etc.’. The transposition is not ad litteram. Nor is it subdivided into paragraphs as in the Framework Decision. In the case of the latter, one can easily distinguish between the genius/genera and its or their species. The Maltese provision, on the contrary, is more complicated as it even goes beyond the species listed in the Framework Decision when it adds other species namely, gender, gender identity, sexual orientation, language, belief, political, and other opinion. Everything is lumped together into one single provision. That the actual construction of this provision is unclear is evident also from the 2014 European Commission Report on the Framework Decision: ‘MT appears to make the crime of incitement to violence or hatred dependant on it being threatening, abusive or insulting’, thereby adding more ingredients into the provision to inextricably complicate matters further. Article 82A of the Criminal Code poses difficulties to establish its contents, that is, which are the exact material acts which are being criminalised. A mathematical approach to this matter helps resolve the conundrum.
If the constitutive ingredients of the crime established by article 82A of the Criminal Code are dissected into their component parts, this provision establishes - in its completed form - 1,716 separate and distinct criminal offences. Each unique offence cannot be reproduced in this paper as these spread over 95 pages of single line spacing of text. However, the Criminal Code distinguishes between various types of offences such as: (a) the completed offence of incitement to racial hatred, etc. (article 82A); (b) the attempted offence of incitement to racial hatred, etc. (article 41); (c) the conspired offence of incitement to racial hatred, etc. (article 48A); (d) the instigated offence of racial hatred, etc. (article 69); and (e) the incited offence to disobey the law through inciting to racial hatred, etc. (article 70).
For each of the above five types of completed crimes, 1,716 distinct offences are generated. In all, all five types of completed crimes in article 82A of the Criminal Code produce as much as 8,580 different offences, and this without taking into consideration the multiplicity of combinations and permutations between these offences which is infinite in number and impossible to determine. The power of mathematics in revealing the human rights infringement to the principle of legal certainty procured by article 82A of the Criminal Code can be discerned through the application of a mathematical formula. If the combination of all the various permutations of these 1,716 crimes is worked out, it will total up to a non-mathematical number, that is, to infinity, that is an incalculable number that cannot be foreseeable and ascertainable.
If more than one perpetrator were to be involved, the number of offences – whether completed, attempted, conspired, instigated, or incited – will have to be multiplied by the number of perpetrators. Nor is the above mathematical calculation considering the combination of all permutations of the completed crime, the attempted crime, the conspired crime, the instigated crime or the incited crime. Mathematically, the number of offences which Article 82A(1) creates in combination with the other provisions of the Criminal Code referred to above is astronomical.
There have been quite a few cases prosecuted under article 82A, the latest judgment being The Police v. [Fr] David Muscat delivered by the Court of Criminal Appeal on 31 May 2023. Irrespective of the facts of that case that are irrelevant for this piece, Fr David Muscat was found guilty based on article 82A by the appellate court, whilst reversing an acquittal judgment of the lower court. Admittedly, the criminal court was not determining any human rights issues; but the point is that on the basis of Article 82A, that does not comply with legal certainty and, is, therefore, in breach of human rights law at least on this ground (without entering into questions of freedom of expression, freedom of conscience, etc.), the accused was found guilty and sentenced to six months imprisonment, even if the punishment was suspended. In other words, on a crime that is in breach of human rights, a criminal court sentences an accused person to imprisonment! Of course, the inevitable question that arises is where is justice in the Maltese criminal legal system? The answer is obvious: nowhere. The fault is neither of the prosecutor, nor of the court, that are both bound by the rule of law, but of the legislature that drafted a provision beyond logical comprehension. Yet, this notwithstanding, a person bears the brunt of an unjust law through the punishment of imprisonment – a complete travesty of justice.
This article has discussed the human rights implications brought about by a non-literal transposition of Article 1 of EU Council Framework Decision 2008/913/EU. By ‘non-literal’ is meant a transposition that does not follow verbatim the text of the Framework Decision. The human rights aspect - legal certainty – is a constituent ingredient of the principle of legality. The transposition in article 82A of the Maltese Criminal Code of Article 1 of Council Framework Decision, has the consequence of creating an infinite – and, therefore, incalculable amount – of separate and distinct criminal offences within the fold of that single provision that works out to be astronomical. This obviously has human rights implications in so far as legal certainty is concerned. The result of the mathematical calculation is that the transposition into state law of the EU criminal norm is that the principle of legal certainty is thrown overboard. So is the legal maxim of ignorantia juris neminem excusat (ignorance of the law is no excuse) for, if a norm is so ambiguous, uncertain, vague, obscure, fluid, unforeseeable, and unascertainable, how can a person be expected to comply with its dictates when that norm, in essence, is garbled, confused, and the product of unclear and undecipherable wording? The result, inevitably, is an injustice that defeats mathematical logic committed by the legislature through the judicial system.
Kevin Aquilina is Professor of Law, Faculty of Laws of the University of Malta