‘U Can’t Touch This…’

“I did nothing illegal”… “What I did was all above board”… “I was never found guilty in a court of law”… etc. Etc.

I mean, honestly, folks. How many times are we going to hear that sort of excuse, from politicians accused of crimes or misdemeanours in this country? Or even – as was the case with Ryan Mercieca this week – when the accusations are not even of a criminal nature, but merely a question of political ethics: i.e., to be decided by an internal party committee… and not the law-courts at all?

Mind you: I only bring up Ryan Mercieca’s case, because the Nationalist MP from Gozo has just became the latest (out of probably thousands) to resort to that particular line of defence.

When the PN’s ethics committee decided that he could no longer represent the party in the forthcoming by-election – for reasons that are way too complicated to go into here – Mercieca’s response was to “refute the allegations against him, and insist that he has never been found guilty of any wrongdoing…”

Right: that’s about as far as I’ll wade into the specifics of the case, because, to be honest, I don’t know if Ryan Mercieca really did threaten an official from the Gozo NGOs Association outside the courtroom, after his testimony in a libel case over all sorts of other allegations: including (as I understand them) the fact that an organisation he was chairman of – and which benefited from EU funds – had been propped up by ‘ghost NGOs’…

No, I won’t go into any of that at all, myself: not just because I don’t know all the facts of the case – I mean, come on: since when has that ever stopped anybody? - but because I’m far more interested in the line of defence itself, than in the person who happens to be using it right now.

Lift that one line out of its context – ‘I have never been found guilty’ – and you’ll find that it chimes in with literally dozens… what am I saying? Probably millions of other times the same excuse has been used, in comparable situations, over the years: sometimes, in cases which… well, let’s just say ‘haven’t aged too well’.

For instance: as I recall, Konrad Mizzi’s initial response to the 2016 Panama Papers revelations was to insist, over and over again, that ‘there was nothing illegal’ in opening offshore companies. And let’s face it: he’s perfectly right (otherwise, a rather large chunk of Malta’s entire financial community would have to one day follow him to jail.)

But – as was time and again pointed out to him, all those years ago – that was never the point in question to begin with. For one thing, it’s not ‘owning’ those companies that may have been illegal; but the use they were actually set up for (something we know far more about today, than back in 2016).

Much more importantly, however: the question was not whether it was all along ‘illegal’… but whether it was politically acceptable for a Cabinet minister (or any politician) to set up secret offshore companies in the first place:  which doesn’t look great at the best of times… still less, in such an internationally disreputable jurisdiction.

But let’s not dig all that up again. The point was (and remains) that there is a distinction between ‘criminal culpability’ and ‘political responsibility’. Not everything we describe as morally or ethically ‘wrong’ is necessarily against the law; just as – conversely – not everything that falls within the parameters of the law is automatically ‘right’, ‘just’ or ‘good’.

Oh, but one other thing before proceeding: here, I have to stress that I am no longer making specific reference to Ryan Mercieca’s case; nor any other individual example, for that matter. Think of it more as a generic principle, along the lines that: ‘strict legality’ cannot be used as a yardstick for moral behaviour, because…

… well, because of some pretty darn obvious reasons. Old laws get amended over the years (unless they regulate female sexual health in Malta: in which case, they apparently stay the same for centuries); and new laws are also being introduced – and then amended, then re-amended, etc. - all the time.

This also means that pretty much everything that is illegal today, was once upon a time perfectly ‘legal’: in the sense that no specific law existed to cover it (until some spoilsport legislator came along, and ruined all the fun for everybody.)

Human sacrifice? All perfectly legal, everywhere in Europe… until only around a couple of millennia ago, too. Slavery? Pretty much the same, except that it remained legal for much, much longer (and is arguably still alive and kicking, in various parts of the world, today).

But if those examples are too remote or archaic for you: how about crimes such as ‘money laundering’? ‘Human trafficking’? ‘Aiding and abetting international terrorism’… or even just the entire concept of ‘financial’ – as opposed to ‘commercial’ - crime?

Those are all areas that Maltese law had no specific provisions to deal with, until very recently (And I could add ‘hijacking’ to the list: we had no specific laws about that either: until over 60 people got blown up on the Luqa runway, in the aftermath of the 1986 Egyptair hijack disaster…)

But the fact that local law failed to target those crimes individually, for so long, doesn’t mean that they were any less ‘criminal’, or ‘reprehensible’, that they are today.

It just meant that Maltese law hadn’t yet got round to legislating yet… and this, in turn, only meant that the people who were engaging in those activities had one thing less to worry about: the law ‘couldn’t touch them.’

They, too, could defend themselves (without even lying) that ‘they never broke the law’; or that ‘they were never convicted of any crime by any court’. And that, in a nutshell, is roughly how reassuring the same excuse sounds, when it comes from local politicians accused of ‘wrongdoing’.

With the small difference that politicians (when in government, naturally) also get to write, amend and re-amend the same laws that they will always somehow find a way to wriggle out of later…. and this, in particular, is what makes the argument so irksome in the first place.

Another reason why the law is often powerless to fulfil its functions – in this country, as elsewhere - is precisely because politicians have always done such a spectacular job of tweaking it, until it gives them precisely the sort of legal ‘ass-coverage’ (for want of a better expression) they need.

No shortage of examples: but local laws (and government policies) concerning the environment have all been passed through exactly the same shredder. Ever wondered, for instance, why the Local Plans issued in 2006 - and which set fairly specific building height restrictions: among countless other limitations to what (or where) can or cannot legally be built in this country -  always seem to be magically turned on their heads, almost every single time a developer submits an application which openly defies the same Local Plans?

In most cases, the Planning Authority will approve the project – illegalities and all – on the basis of some ‘proviso’, written specifically into the law, that suddenly makes it ‘inapplicable’ to the specific case at hand. In all the others, however, the developer will simply build what he wants to anyway; only for the resulting illegalities to be retroactively ‘sanctioned’ (sometimes, but not always, against an ‘environmental fine’.)

ODZ, for example. The Local Plans excludes all new development of land outside the established development zones… except for those that eventually get approved via ‘Structure Plan Policy 12’, which specifically states that “there should be solid evidence as to why development should be located outside development zones, in which case, it is required to give reasons why from a planning point of view such proposed use cannot be located in areas designated for development”…

Likewise, it matters not a jot that the same Local Plans limit the height restrictions to only three storeys in, say, Pembroke. When it came to the necessity of overriding that restriction for the benefit of a new Chinese Embassy (covering 19,500sq.m of supposedly ‘protected’ woodland, if you please)… well, there was a caveat for that, too.

The area destined to become the new embassy’s footprint had been ‘rezoned’ in 2012… for yes: apparently, the Local Plans allow for ad hoc revisions, too.

Malta’s entire environmental law, it seems, is underpinned by a tacit, unspoken rule: ‘any or all of this legislation can be overridden at will, if the regulators (in this case, the Planning Authority) simply decide to make an exception…’

As a result, all the architectural atrocities we have witnessed of late – no matter how blatantly illegal, or in violation of policy guidelines, they may appear – are all (well, most of them, anyway) ‘perfectly legal’… in the sense that… ‘you can’t touch them’.  Not legally, anyway; they are offences which are simply beyond the power of the law to rectify.

So to argue – whatever the circumstances – that ‘I did nothing wrong, because what I did was not illegal’… sorry, but that not only does that fail utterly to ‘absolve’ anyone of their wrongdoing… but it also tends to come across as…

… well, as a somewhat legalistic version of MC Hammer’s 1990 Hip Hop sensation: ‘U Can’t Touch This!’ (repeated, as in the song, over and over again…)

Because that’s what those words actually mean, you know. That what you did was every bit as ‘wrong’ as we all know it was… but… all altogether now (no excuses, you all know the tune);

‘U Can’t Touch This!’ (Bow-ba-ba-boom!)

And just like that, MC Hammer’s riff is now officially stuck in my head for the rest of the week…