The acquittal of businessman Yorgen Fenech on charges of complicity and conspiracy in the assassination of Daphne Caruana Galizia has sparked controversy.  The jury was almost unanimous, but its verdict has not been universally accepted.  To the extent it has, it seems to follow partisan political interests.

Some people rushed to insinuate that the jury had delivered that particular 'not guilty' verdict because it was "afraid."  Afraid of what has not been specified by anybody: of a person or persons, or of some dark forces?  Such insinuations or claims, especially when not supported by facts, are very dangerous.  

The Leader of the Opposition himself told a crowd in Valletta immediately after Fenech's acquittal that we should have a country "that is not afraid."  What is he talking about?  Does he believe that the jury were subject to pressure or threats that made them afraid?  Or does he believe that, bar such pressures or threats, they were dominated by feelings of fear and anxiety in general because of the circumstances of the case?

I, for one, was extremely surprised by the verdict, having expected a narrow 'guilty' majority decision.  It could be that, even if the defendant's actions were found deeply disturbing, the jury decided that his role failed to meet the exact statutory definition of the specific crimes of which he was accused.

Controversial verdicts are nothing new.  We all remember the O.J. Simpson Trial (1995), when the former football star was acquitted of double murder. The verdict clashed with widespread public belief in his guilt.  There are dozens of others, including in Malta with the 1960 trial of Ġiġa Camilleri and her husband Leli Camilleri, who were involved the brutal murder and partial decapitation of eight-year-old Twannie Aquilina.  To this day, some people claim that there was a miscarriage of justice.

The jury system is far from perfect. At the beginning of the trial, Professor of Law Kevin Aquilina called on the government to establish a commission to undertake an in-depth review of Malta's jury system, arguing that it has become increasingly complex and difficult to manage.

For decades, the jury system has been treated by politicians, judges, and commentators as untouchable, even though it is clear that over the years some innocent people have been imprisoned or been executed.

In our system, the prosecution builds a narrative of guilt and presents the defendant in the least favourable light. The defence then tries to undo that damage. Somewhere between these two performances, the search for truth can be lost. Prosecutors have an advantage: they do not face the same obligation as the defendant to tell "the whole truth," and they choose how they frame the 'evidence.'

Structural problems make things worse. The pool of people called to serve on juries has grown, meaning that people with potential conflicts of interest may now sit in judgement.  Long before a trial begins, jurors are exposed to social media, where more often than not, the accused is often portrayed as already guilty. Whether the courts acknowledge it or not, prior bias cannot be eliminated.

But the biggest flaw is the total lack of transparency. Jury deliberations are secret. Jurors do not have to explain their reasoning.  A person can be sent to prison for decades without ever learning why nine strangers reached the verdict they did. In every other area of public decision-making, reasons must be given. Yet in criminal justice   ̶   the area where liberty is at stake   ̶   the system accepts silence.

As Dr Aquilina argued, the growing complexity of modern trials adds to the problem. Jurors with no legal or technical background are asked to interpret scientific data, financial documents, or digital evidence. When material is difficult to understand, people naturally fall back on impressions: how confident a lawyer seems, whether the defendant appears "trustworthy," or their own unconscious biases.

The old idea of being judged by "one's peers" rarely holds true.  Teachers, students, and pensioners may have little in common with a defendant in a highly technical case. Meanwhile, jurors with specialist knowledge are often excluded on the ground that they may be biased. Yet people with far less understanding, and sometimes stronger prejudices, sit on the jury without hesitation.

I wouldn't think that one can decide whether the jury system delivers justice from the results of a couple of trials.  But there is no doubt that developments since the first trial by jury in Malta in 1815 make it highly desirable to look again at the system and update it to more modern times.

Fair pay and service tips

Tipping and service charges can be a great way to show gratitude for good service in hotels and restaurants, but unfortunately some places use it to level out not paying their employees enough.  It is notably the situation in the United States, where waiters and bellboys ate very poorly paid and remain by you until you tip them, or even demand tips.  In Europe, it varies from country to country, with a variety of service charges and tipping practices. 

The issue is coming to a head in Malta too, with the introduction of service charges. As usual, the authorities have been caught with their pants down.  Former Minister Roderick Galdes brought the issue into the public domain almost a month ago, when he revealed how a particular restaurant had introduced a 9.5% service charge.  Other instances then started being reported at a number of bars and restaurants.

It was not clear whether in the case mentioned by Mr Galdes the charge was discretionary or obligatory, or whether the clients had been made aware of it before sitting down to their meal.  He was right to demand that the government regulate the practice, taking into account both the legitimate costs of eating establishments and the interests of consumers.

Service charges in some countries like Spain are not mandatory but can be up to 30% of a final bill, which can leave customers with eye-watering extra costs. In France, it is typically 15%. In places like the UK, Ireland, or Hungary, restaurants frequently add a fixed discretionary service charge of 10% to 12.5% onto the bill.  In other countries like Italy, there is a standard fee per person to cover table settings, bread, and oil, which is distinct from a percentage service charge.

The president of the Association for Catering Establishments (ACE), Michelle Muscat, told the Times of Malta that the growth in service charges in Europe has generally been driven by a combination of economic pressures and labour-market changes. "The biggest factor would definitely be rising labour costs and staff shortages," she said.

Muscat warned that rising labour, food, and operating costs were similarly exerting pressure on Maltese restaurants, bars, and other service-oriented establishments.  I would think that she is rather right, though I find it rather harder to understand the reference to labour costs when most of these establishments now employ third country nationals who are paid almost-slave wages.

I have always tipped, even for a cup of espresso, but that does not entitle me to demand that others do the same.  It's not that some people are necessarily stingy.  They might feel that, if wait staff are not making a minimum wage, it's not up to them to subsidise the employer and stump up their hard-earned and taxed euros to help them out. The onus is on the employer to pay at least the minimum wage, or higher.

In Japan, to accept a tip is considered an insult to one's professional pridem.  Any businesses that make tips quasi-mandatory are bashed into submission for violating the social norm, even though service workers are not particularly well-paid.

My personal opinion is that the government should not allow the introduction of a standard obligatory service charge.  This would defeat the objective of fair wages being paid to staff and remove the incentive to provide good service, as it would put both good and bad establishments on the same level.  A consumer who goes to Simon Rogan's Ion Harbour restaurant know that he needs to pay a higher price than one who does to Drinu's Kiosk in Armier, both of whom should be free to set their prices accordingly without any need to introduce an obligatory service charge.

In my opinion, service charges should be discretionary, letting consumers decide whether the service given justifies the charge.  If, however, service charges are made obligatory, they should go to the establishment's staff, not to the owner, though the latter should remain free to decide who gets the revenue - whether just the wait staff or all the establishment's employees.     

Sea of Malta

On the morrow of the 'not guilty' verdict in the trial by jury of Yorgen Fenech, the former Prime Minister Dr Alfred Sant wrote in this newspaper that the sea surrounding Malta should be called the Sea of Malta.  I am at a loss to explain the timing, whether it was sheer co-incidence or a ghastly diversionary tactic.

I was surprised that one of the reasons for Dr Sant's proposal was that President Trump had just renamed Lake Ontario to Lake America.  One recalls the various occasions when Dr Sant has berated Trump for undermining the international rule of law.  Now, it seems that Dr Sant has taken a leaf from Trump's book and has decided that, once somebody acts like Billie the Kid, then everybody is entitled to do so.

Dr Sant wants to outtrump Trump.  He wants the whole Mediterranean to become the Sea of Malta.  The frigging 21 other countries bordering the Mediterranean or located in it should, I was going to say, "jump into the sea," but that would seem rather inapplicable given that they are already in it.  How will these countries react to "a drop in the ocean" (Malta) "making waves" around the Mediterranean?  The likely result of Dr Sant's proposal would be that we would be "all at sea."  I rather think that the proposal would not at all be "plain sailing."

Quote of the Week

"The country too many accounts of businessmen buying influence, politicians and public officers being corrupted, police officers assisting criminals, and journalists participating in wrongdoing rather than exposing it while fraudulently presenting themselves as bona fide guardians of the Fourth Estate". - Archbishop Charles Scicluna, in the wake of the outcome of the Jurghen Fenech trial outcome.