Yes, the amounts may be dodgy… but why deny bail?

You can generally tell your country has deep-seated problems in the justice department, when even the most basic aspects of courtroom administration seem to come as an earth-shattering surprise.

Examples include a general reaction of 'oh, here we go again', when news broke out that former Enemalta chairman Tancred Tabone and petrochemist Frank Sammut (by the way: doesn't that title remind you of the Mad Max movies?) were both granted bail on multiple charges that include corruption and money laundering.

By my count there were two distinct types of reaction to this particular decision. The first argued that bail should have been withheld altogether, and the suspects kept in jail for the entire duration of the case... with the justification being that the courts need to 'send a clear message' to society in general.

The second conceded that there was no real reason to withhold bail, but scoffed at the (admittedly rather paltry) amount set by the law courts, both as deposit (€3,000) and as personal guarantee (€15,000).

Up to a point I sort of understand both reactions. I myself am very often aghast at certain court decisions in this respect: for instance, when bail is granted in cases of violent crime, or child abuse, or any other behaviour which poses a potential threat to other people.

Likewise I am often bewildered by cases where bail is withheld - or fixed at exorbitant rates - often for no apparent reason at all.

But this particular case is different. I have never met Tancred Tabone in my life, but I do have a vague memory of Sammut from his days as a secondary school chemistry teacher at De La Salle. He did not exactly strike me as the sort of ultra-violent criminal you would want to keep behind bars as a simple precaution. In fact I remember him as a rather fuddy-duddy, overgrown teddy bear of a man, who looked incapable of physically harming a fly (unless he sat on one by mistake... but that hardly counts).

Tabone of course looks more harmless still. And yes, I am perfectly aware that 'looks', on their own, are not the most reliable indicators in such cases. But come on folks. I don't think anyone in his right mind would seriously argue that either Tabone or Sammut poses an immediate threat to public safety... and while there are other considerations, I honestly don't think any of them really applies in this case either.

It is true, for instance, that some form of evidence-tampering may be possible, or that some witnesses (who knows? Maybe even jurors) may be 'influenced' as a result. It is also possible - though I would say highly unlikely - that one or both suspects might abscond.

These, by the way, are among the 'normal' reasons to deny bail; but underpinning such considerations in an all-important principle that tends to be spectacularly forgotten - the presumption of innocence.

On the basis of this presumption alone, bail is widely regarded as a right... and not a privilege which can be withheld on a whim. In the USA it is actually a Constitutional right, guaranteed by the eighth amendment. In the UK (and Malta adopts a similar view) it becomes an automatic right only after a maximum period of pre-trial detention. But a right it remains, and rights are not things to be treated lightly.

On this page I have listed a few of the more common reasons given by international law-courts to suspend this right (though at least two of these reasons - violence and prior escape - are clearly not applicable in this scenario).

However I stress that these are reasons given by the law-courts of other, international jurisdictions. Our local equivalent is unfortunately rather woolly when it comes to actually justifying such measures... and this may well be one of the reasons why so many people seemed to assume that granting bail in this case was somehow 'extraordinary'; when in actual fact the very opposite would have been true.

Going only on the cases I myself have followed as a journalist, I would say the single most overwhelmingly common reason to be denied bail in Malta - or to have your deposit/guarantee fixed at a manifestly unaffordable sum - is to have the misfortune of simply not being Maltese.

This is closely followed by another misfortune: that of not having any close friends 'high up the political hierarchy'. A third possible reason to be denied bail in Malta - by far the most shocking, if you ask me - is merely on the basis of your socio-economic bracket.

BUT (and the use of capitals in not accidental, because it is a very big BUT indeed)... all this overlooks an important detail. The fact that others are so very often unjustly denied bail does NOT justify denying bail in yet another case... no, not even a case which happens to have all the opposite hallmarks: i.e., in which the suspects are not foreigners, are arguably as far removed from poverty as one can be realistically be in our country, and who are politically very well-connected indeed.

Here we must distinguish between two lines of reasoning (and incredibly, a lot of people I know seem incapable of following either to its logical conclusion). The first is one which recognizes the inherent injustice of a system which applies different weights and measures in different cases, depending on all the wrong criteria.

People who limit themselves only to this argument tend to make a very valid point: the problem does not necessarily concern bail in this case, but rather the inconsistency of bail decisions in ALL cases.

Strangely, however, many people follow this up with a remarkably ugly exercise in reverse reasoning, whereby an injustice committed in one case somehow 'justifies' a second injustice in other... you know, just to balance the scales.

Right. I know what I am about to write is arguably the single most controversial thing I have ever written... but the fault lies squarely with Malta's unforgivable association with Italian football (widely acknowledged to be the font of all injustice in the known universe).

The rationale that went into the above argument is in fact indistinguishable from the rationale of a football referee who knowingly red-cards an innocent player (or awards a penalty, or some equally game-changing decision) simply to 'compensate' for an earlier refereeing mistake on his own part.

Sorry folks, but the two scenarios do not balance each other out at all. I know it's a trite and hackneyed expression, but it's no less true for that. Two wrongs don't make a right... never have, never will.

Yet the same clearly flawed reasoning also tells us WHY some people reacted the way they did. And the reason has nothing to do with any real or perceived injustice in this particular case... but everything to do with all the previous injustices that the same law-courts have committed in the past.

Off the top of my head I can mention several cases where bail should have been given but wasn't, and just as many when the opposite  holds true. Some of these cases had decidedly political overtones - for instance, the recent refusal to grant bail to Joseph Borg, the whistleblower accused of blackmailing top civil servant Rita Schembri.

On that occasion the AG had even requested the freezing of Borg's assets... and Borg himself would later accuse the authorities of having imprisoned him for purely political reasons.

Elsewhere we all know cases where bail conditions were simply miles out of proportion to the nature of the alleged crime. The discrepancy between bail set for Chinese prostitutes and their Maltese pimp is one I wrote about quite recently. There are others, many focusing on drug related offences.

And herein lies the real underlying wart in the whole judicial set-up. People have grown so inured to this kind of inconsistent approach by the law-courts that they now EXPECT inconsistency in bail decisions.

And much more beside: the perception of blatant political interference in criminal cases has been allowed to run riot for so very long now, that people have come round to reading political overtones into all cases... interpreting every single detail as the external manifestation of an internal bias, when it could just as easily not be the case at all.

And the truly scary thing is... you can't really blame them, either. The real responsibility for this state of affairs lies not so much with people who have grown accustomed to such wildly inconsistent and often unjust rulings.

It lies with the law-courts themselves, for having taken so very many questionable decisions in the recent past, that about the very last place we expect to find justice these days is precisely the institution that is supposed to guarantee it.

And THAT, to me, is a truly hideous, gargantuan problem which has no obvious solution anywhere in sight.