Worried about going to prison? Get a job in the construction sector...

Nowadays, the same sort of contradiction is painfully visible almost everywhere you look: for instance, whenever the Planning Authority comes down like a tonne of bricks on some hapless nobody who built an illegal structure somewhere 

File Photo
File Photo

Let’s try a little experiment, shall we? I will quote from two (much-publicised) judgments by the Maltese courts… you try and guess which cases they are taken from.

Ready? Here’s the first quote:

“Those concerned over the suffering their family goes through due to their conviction, should consider this before embarking on criminal activity. Having a family is not a reason to disturb a court’s decision.”

Allow me to repeat that last part, just for the sake of unnecessary emphasis: “Having a family is not a reason to disturb a court’s decision.” Got that, everyone? Good.

And now, onto the second mystery quote of the day:

“The defendants […] have to provide for their families, and a prison sentence could have negative effects on other family members who are extraneous to the case…”

Ok, I’ll admit that the second quote is somewhat easier to identify than the first (if nothing else, because the sentence itself was only handed down a few days ago: understandably enough, causing widespread outrage and indignation).

But in case you missed it: it is part of Magistrate Joe Mifsud’s justification for refusing to imprison two architects, despite having found them guilty of criminal negligence resulting in the death of Miriam Pace last year (under circumstances that you will surely not need me to repeat).

The first quote, on the other hand, takes us all the way back to October 2013. And for the benefit of those with short memories – a rather large category in this country, it would seem – it is lifted from the Appeals Court ruling in the case of Daniel Holmes: imprisoned for 10 years for the cultivation and trafficking of cannabis.

To be honest, however, the specific details do not really matter all that much.  Even without knowing anything at all about the two separate cases… you can already see, just from the wording alone, that those two quotes contradict each other rather blatantly, on the application of what is ultimately a very basic legal principle.

Should the effect of incarceration on other family members be taken into consideration by the law-courts, when meting out sentences in any given case? In the first instance, the answer came back as a very emphatic ‘No’. In the second, however… it suddenly became ‘Yes’.

Or, to use the same phrasing: in one case, ‘having a family’ was not enough to overturn a 10-year prison sentence (even though the crime, in itself, did not actually kill anyone); whereas, in the case of two architects charged with involuntary homicide… ‘having a family’ was suddenly enough to commute a prison sentence, to a mere two months’ worth of community service, and a K10 fine.

Leaving aside the sheer discrepancy in sentencing policy alone – which, to be fair, we also see in a wide variety of other cases: not all presided over by Mifsud – those two rulings could very easily have been the result of two totally different (and utterly incompatible) legal systems.

Yet they are both interpretations of one and the same Criminal Code… which - to the best of my knowledge, anyhow – has not been substantively changed at any point between 2013 and 2021 (or at least, not in any way that can possibly justify the above contradiction).

So much so, that Magistrate Joe Mifsud himself – whose ruling, by the way, was elsewhere replete with allusions to previous judgments – did not substantiate this part of his reasoning with references to any kind of case-law at all.

Presumably, this is because Mifsud was not, in fact, basing his reasoning on any existing article of law. Like so many of his other judgments, his sudden concern with family members seems to be a purely personal, subjective opinion of his own, which has no real legal basis whatsoever.

And it seems to have cropped up only in this one particular case, too. Naturally, I have neither the time nor the inclination to pore over every single judgment, ever handed down by the Criminal Court, to see if this sort of reasoning has ever been used before.

But I don’t think it would even be necessary, for the simple reason that: let’s face it, if the same logic were to be applied to every single criminal case in Malta… nobody would ever be sentenced to prison at all.

It is probably too obvious a point to even bother spelling out, but… every single person who is currently serving a sentence in Corradino prison – from the most hardened, cold-blooded murderer, to the hit-and-run motorist who accidentally ran over a pedestrian, all the way down to the hapless VAT defaulter – will have family of their own, too.

You know: mothers and fathers, sons and daughters, brothers and sisters, aunts, uncles, cousins, nephews, nieces.… that sort of thing. And all of those family members, in turn, would likewise be ‘extraneous’ to the crime in question; not to mention – most of the time, anyhow – utterly devastated by the incarceration of their darling, beloved relative (no matter how ‘deserved’ or ‘undeserved’).

So if the judiciary were to suddenly start taking the plight of all those people into consideration, when deciding on each and every single criminal case… quite frankly, we would end up having to dismantle, not just Corradino prison itself; but also, eventually, the criminal justice system as a whole.

But of course, the Maltese courts don’t normally do this (for reasons that are rather clearly spelt out by the Holmes ruling, quoted above). And nor, for that matter, does Magistrate Joe Mifsud himself… or at least, not when sentencing ‘lesser mortals’ to prison (which, in other instances, he does quite a lot).

In fact, you don’t need to look very far at all, to find cases where the same magistrate seems to have applied diametrically opposed reasoning himself.

Just five days ago, for instance, the same Joe Mifsud had no qualms whatsoever in sentencing 13 Bangladeshi immigrants to six months’ imprisonment, for the grave crime of ‘entering the country using fake passports’ (another ‘victimless crime’, if there ever was one...)

Now: I myself have neither met, nor spoken to, any of those 13 incarcerated Bangladeshis. But I am reasonably confident that all 13 of them would also have family members – most likely, back home in Bangladesh – who would no doubt have been ‘negatively affected’ by news of their relatives’ imprisonment in a foreign country.

Was that fact taken into consideration by the magistrate, before handing down that (rather harsh) sentence? No, of course not. They were, after all, only ‘illegal Bangladeshi immigrants’… just like Daniel Holmes was only a ‘Welsh expat involved in (at most) petty crime’.

They were certainly NOT Maltese members of a highly respected profession, that also happen to be plugged into the single most untouchable of all Malta’s industries. Construction…

Aye, there’s the rub. For let’s be honest here: bizarre though Joe Mifsud’s ‘exceptionalism’ may appear, to the uninitiated… the double standards represented by his ruling are hardly ‘unique’ or ‘unprecedented’ in construction-crazy Malta.

Nor, for that matter, was the accident that caused Miriam Pace’s ghastly death in the first place. It may be more than 20 years ago, now:  but I happen to remember quite clearly how another house had collapsed, under remarkably similar circumstances, in Cathedral Street, Sliema, way back in April 2000.

Then as now, the law-courts established that the accident had been caused by criminal negligence on the part of the contractors; then as now, the outcome was a woman (aged 84, in this case) buried under the rubble of her own home; and – then as now, once again – nobody has ever spent a single, solitary day in prison over that particular crime.

And in any case: it is not just ‘architects, contractors and developers’ who always end up being subjected to what looks like an entirely different legal system, from the one applied to everybody else.

Nowadays, the same sort of contradiction is painfully visible almost everywhere you look: for instance, whenever the Planning Authority comes down like a tonne of bricks on some hapless nobody who built an illegal structure somewhere … while, at the same time, also ‘sanctioning’ other, much bigger ODZ developments that bear the signature of all the major power-brokers in the construction industry.

Ultimately, then, the leniency shown to those two architects – who, incidentally, were not even stripped of their professional warrant (even though Mifsud himself ruled that they had “betrayed their oath of appointment as architects”) – has to be filed away with all the other known cases, where the construction industry has, time and again, been given the rough equivalent of a ‘Get Out Of Jail Free’ card.

So if there is any sort of ‘message’, aimed at society at large, that can possibly be gleaned from the umpteenth bizarre ruling brought to us by Magistrate Joe Mifsud… as well as all the other ‘discrepancies’, that just happen to always work out to the advantage of the construction sector (at the expense of pretty much everyone else)…

… well, what can I say? It’s right there in the headline…