So... are there penalties for not wearing face-masks, or not?

Given all the excellent work carried out by the same Superintendence of Public Health so far… it would be a shame to have to conclude that it is now desperately trying to backtrack out of an ill-conceived, poorly-implemented and unenforceable directive, that was very clearly rushed through with no proper planning or foresight

I feel I have to warn you that this article is going to ask a lot of questions – to which there don’t seem to be any reliable answers, as yet – and that by the end of it all, there’s a danger you’ll be almost as confused as I am right now.

And what the heck? I may as well start with the most irritating question of them all.

Why are we even calling the blasted things ‘face-masks’, anyway? I mean… they’re ‘masks’, right? And where else are you supposed to wear something called a ‘mask’… if not on that part of your anatomy called ‘your face’?

Lord, grant me patience. By the same reasoning, I suppose we’ll be talking about ‘hand-gloves’ in no time at all. Or ‘foot-shoes’. Or ‘finger-rings’. Or how about… ‘neck-necklaces’? (Hey, you never know: some people might think they’re supposed to go around your… um… never mind...)

But that was just an aside. There are more important questions to be asked right now. Like… how are we all supposed to obey this latest public health directive, anyway? When no shop or pharmacy, in the length and breadth of the entire country, appears to actually have any face-masks on sale?

And more to the point: what would happen to us if we were caught disobeying this regulation? (As is more or less unavoidable anyway… seeing as how it is isn’t even possible to comply if we all wanted to.)

To put that into some context: this morning I tried visiting five separate shops in my neighbourhood – three of them pharmacies – with the intention of buying myself a face-mask… you know, because wearing one is now supposed to be ‘obligatory’ for anyone thinking of entering a shop to… um… buy himself a face-mask…

Hmmm. Good thing, I suppose, that Joseph Heller is no longer around to point out the Catch-22 situation there. Even if I got it explained to me anyway, by one particularly helpful shopkeeper who informed me that I wasn’t actually allowed into his shop to buy a face-mask, because… erm…

… yep, you guessed it. I wasn’t wearing a face-mask. So technically, it would have been a crime for me to step through that doorway; even if my intention was to purchase the one thing that would have regularised my position in the eyes of the law…

In any case, however: it didn’t make a difference in the end, because neither that shop, nor any of the others, could have sold me a face-mask if their livelihoods depended on it. Whether it’s because they’ve been instructed not to by their respective unions (as is the case of pharmacies); or because the government-imposed price restrictions mean that shops would be forced to sell those products at a loss… the upshot is the same.

As things stand right now, you simply won’t find any face-masks on sale in this country at all: not for love, money, or the offer of sexual services (still less for 95c, as is also supposed to be mandated by law).

So our only options are to either ignore a directive that is, quite frankly, unworkable in practice; or risk exposing ourselves to the possibility of fines and/or prison sentences… which, in turn, may or may not even exist.

This brings us to the most befuddling question of them all. OK, let me get this straight: this weekend, we all heard the Superintendent of Public Health, Charmaine Gauci, very clearly confirming that wearing face-masks is now mandatory for anyone entering a shop, or boarding a bus… and, more specifically, that there are ‘penalties’ for disregarding this latest directive.

Twice within five minutes, she was asked to specify the exact nature of these penalties; and on both occasions she gave the same answer.

This is from the 4 May press conference: “Wearing a face mask or visor is obligatory in all retail outlets, and on public transport, including buses and the Gozo Channel. This is according to criteria published in the Public Health Act […] so if there is a contravention of these guidelines or directives, that is a crime at law.”

Pressed for a more specific reply (e.g., how much are fines?), Gauci stuck to the line that the penalties are ‘governed by the Public Health Act’… and added that anyone breaching the new directives may face criminal charges in court; and may therefore be subject to whatever sanctions are stipulated in that law.

Admittedly, she stopped short of spelling out what these penalties are: but she did give us a clear indication of exactly where to look for a more detailed answer.

So – to its credit – the national station TVM went through the trouble of actually consulting the Public Health Act to find out: and on Monday, it duly reported that the maximum penalties include “a two-year prison sentence, and a fine of up to €4,658.”

I have meanwhile separately consulted the same law, and… yes, I am afraid that is perfectly true. Those are indeed the maximum penalties stipulated, in black on white, for breaching the Public Health Act.

Naturally, it remains intensely doubtful whether the law-courts really would hand down the maximum penalty for this particular infringement… but that is ultimately irrelevant. Fact remains that the law-courts can resort to those punitive measures, if they choose…

… in other words, TVM was quite right to warn us all what Charmaine Gauci really meant with her evasive answers last Monday.

Strangely, however, this otherwise factual, well-researched article was pulled from the State-owned broadcaster’s website within less than a day. Meanwhile – a coincidence, no doubt – Prime Minister Robert Abela was confronted with the same question as he stepped out of court on Monday morning: and – as is becoming something of a habit of his – he went on to totally contradict Prof. Gauci in the space of a couple of sentences.

“The legal notice is clear,” he said. “Although there are no penalties imposed on people who don’t wear masks, the fact that the Superintendent of Public Health has issued a directive means we should comply. I wore a mask inside court too. It’s not an issue of fines but of obeying the directives.”

Hmm. OK, at this point there is more than one contradiction that needs to be clarified. What ‘legal notice’ is Abela talking about, exactly? The face-mask directive has not, so far, been the subject of any specific legal notice of its own (or at least, not one that has been published in the Government Gazette).

I can only conclude, then, that he was referring to LN 115 of 4 April: which declared the COVID-19 pandemic to be a ‘public health emergency’; and which – more pertinently - also “gives the Superintendent of Public Health, Charmaine Gauci, the power to take all the measures she considers necessary to ‘reduce, remove or eliminate’ the threat to public health.”

The same emergency legislation also specifies that “any person who does not comply with any direction issued by the superintendent shall be guilty of an offence.”

Effectively, this means that the Prime Minister is in no position whatsoever to answer the question of whether or not there are penalties for breaching this directive. And this for two reasons:

One: in a functioning parliamentary democracy, it is the law courts – and NOT the Prime Minister – that determine what fines/prison sentences are to be handed down in any given case… and that decision, in turn, has to be based on what the law permits (as opposed to whatever happens to be politically convenient for Dr Robert Abela, at any given moment).

Two: on April 4 this year, the government delegated ‘special powers’ to the Superintendence of Public Health; as such, it is actually Charmaine Gauci’s word that counts on this matter… and not the government’s.

And yet, Charmaine Gauci herself seems strangely reluctant to ever answer the question directly: i.e., to confirm that TVM’s story last Monday was indeed correct; and that: yes, actually… we might conceivably be facing two years’ jailtime, and a fine of up to €4,658, for not wearing masks that we can’t even get our hands on in the first place.

Given all the excellent work carried out by the same Superintendence of Public Health so far… it would be a shame to have to conclude that it is now desperately trying to backtrack out of an ill-conceived, poorly-implemented and unenforceable directive, that was very clearly rushed through with no proper planning or foresight.

Sadly, however, I can see no other way to interpret the situation myself.

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