Maltese loitering rules: When ‘persistent presence’ becomes a crime

Mayors in Marsa and Hamrun have justified new anti-loitering by-laws as a way to clamp down on unruly behaviour in their localities, which has been linked to the increased presence of foreign communities.

But human rights NGOs are concerned that such laws are encouraging racial profiling.

Hamrun has recently joined Marsa in enacting a by-law against loitering which is defined as the “persistent presence of any person for no apparent reason” in the streets of these two neighbouring localities.

Any person who is found loitering in these two localities can be liable to a fine of €65.

Sociologist Angele Deguara, an activist for Moviment Graffitti, is concerned about the legal repercussions of anti-loitering laws on civil liberties and individual freedoms due to the vague definition of loitering.

“This could see a person being arrested just by being present in a locality for a certain amount of time and who the police may feel should not be there, thus constraining the freedom of individuals to a considerable extent,” Deguara told MaltaToday.

Marsa was the first locality to introduce a law against loitering in June. It was the second by-law approved by the council, following another prohibiting the consumption of alcoholic beverages on the locality’s streets, approved last year. Last week Hamrun mayor Christian Sammut announced that his locality was following suit by approving similar by-laws. The by-laws have been supported by all councillors, including the Nationalist minority.

Sammut admits that he was initially hesitant about adopting this approach. “I do not like a Big Brother approach which stifles people and turns the locality into some sort of prison. But the situation is now becoming intolerable,” he said.

Sammut also claims that following the introduction of by-laws against drinking in public spaces and loitering in Marsa, “abuse” started shifting to neighbouring Hamrun.

On his part, Marsa mayor Frans Debono is glad that Hamrun is adopting the same approach as his locality. “It makes sense to have similar laws in both localities to avoid anti-social behaviour moving from one locality to the other.”

Christian Sammut justifies his change of heart by referring to the “fear” reigning in his locality. “People are afraid… There are people begging, others get drunk and sleep in public spaces … and there have been fights,” he said, referring to a recent violence street fight between groups of Syrian residents.

While the law is aimed at both Maltese and foreigners, the Hamrun mayor insists that “the majority of these abuses are committed by foreigners.”

Writing on Facebook last week, Sammut was more categorical linking these problems to the “large amount of foreigners”, particularly migrants moving freely to Malta from Italy, due to Schengen regulations. He referred to an increase in homelessness among migrants some of whom he has seen living on the street.

Sammut admits that foreigners also contribute to the locality’s economy and that some have established roots within it. He also points out that the council has often reached out to this segment of the population on matters like waste collection.

Both the Marsa and Hamrun mayors insist that they have nothing against foreigners, that the by-laws are aimed at deterring abuse and exploitation of migrants. In fact, the Marsa mayor makes it clear that the main aim of the by-law in his locality was to stop migrants from “loitering” for work.

While recognising that migrants are contributing to the economy he feels that the other side of the coin can no longer be ignored. And his concern is not just about what residents have to contend with in their daily lives.

“We need to respect the dignity of migrants…. but it is wrong to exploit them by renting them shabby places and offering one time jobs by picking them from the road… and all this simply creates more tension in the locality.”

Debono insists that he has nothing against immigrants working in Malta and agrees with a more regulated system to save migrant workers from loitering for jobs, which still prevails in his locality. Debono says the problem was recently exacerbated by arrivals of irregular migrants from Italy in search of temporary jobs.

The Marsa mayor also sees laws against loitering as a way of giving the police an additional tool when addressing anti-social behaviour. “They are not meant as just another administrative fine similar to a traffic fine… That would be an easy way out.”

He is satisfied by the enforcement so far, noting that a number of people have been fined. But he admits that social problems related to migration need more holistic solutions.

Both mayors also link problems in their locality to the fact that exorbitant rents are pushing migrants to live in large groups in a small space. The Marsa mayor notes that some end up paying as much as €800 a month in rent. The increase in the number of people living in sub-human conditions was weakening social bonds in these localities, the two mayors warn.

On this aspect both mayors seem to be in synch with NGOs who also insist on holistic solutions. But while the mayors think by-laws against loitering are part of the solution, NGOs are worried that these will further aggravate the situation by turning the very presence of migrants in to a problem.

Aditus director Neil Falzon does not dismiss the problems faced by local communities.

“The concerns of the residents of Marsa and Hamrun are about community safety, and as such need to be taken seriously,” he said.

Yet according to Falzon the solutions proposed by the two local councils are misdirected and may also amount to discrimination.

“Aditus insists that residents’ complaints are the result of several factors, including social exclusion, poverty, unemployment, exploitation, mental health problems and disability issues.

“Without addressing the root causes of vagrancy and loitering, we would be doing an injustice to people who need support.”

For while residents are more than justified in wanting to live in a safe environment, it is simply not good governance practice to punish those people “who the system, the institutions, the support structures, have repeatedly failed to identify and protect”, says the Aditus director.

Falzon is also concerned that these measures are targeting non-Maltese nationals, “possibly black Africans… whether directly or indirectly”.

Falzon said he fears anti-loitering by-laws may amount to discriminatory laws and has called on the National Commission for the Promotion of Equality, the Office of the Ombudsman and the Ministry for Equality to assess “their compatibility with the Constitution and our equality legislation”.

Even Deguara is concerned by the discourse surrounding the introduction of anti-loitering laws. “These actions reek of prejudice and only help to increase divisions and hostilities within the community.”

“They are potentially harmful quick-fixes… the discourse surrounding them will most probably intensify the ethnic profiling of individuals, leading to situations where people are targeted unfairly by the authorities simply because of their particular skin colour or ethnic origin. These laws also reinforce the narrative that everything is to be blamed on ‘foreigners’,” Deguara said.

Rather than picking on foreigners, Moviment Graffiti wants the authorities to address social and structural issues that lie at the heart of social malaise.

“Unruly behaviour in public spaces is often linked to economic inequality, social marginalisation and mental health issues, and this has existed long before the presence of foreigners became significant in these localities,” Deguara said.

A history of anti-loitering laws in Malta and beyond

Loitering laws in Malta have so far been approved in localities as a way to clamp down on specific social problems like drug abuse, prostitution and now immigration.

In 2006 Pietà became the first council to ban loitering in a specific area “in and around St Luke Square” in a move directed against drug addicts who used to hang around the area to collect their dose of methadone from a public health facility located in the same square.

The by-law set a model for similar by-laws introduced in other localities by defining “loitering” as “the persistent presence of any person for no apparent reason”.

But the by-law also excluded “persons who are carrying out a duty in St Luke Square, Pietà, or in the vicinity thereof”.

A by-law introduced in Ta’ Xbiex in 2007, this time aimed at clamping down on prostitution in the locality, used the same definition of loitering as that included in the Pietà legislation.

The by-law also excluded “persons who are carrying out a duty in the specific streets in Ta’ Xbiex”. The law singled out seven streets, which at the time were associated with prostitution. Ironically it was the Internet through which sex workers can advertise their services without causing any inconvenience and the advent of massage parlours, which spelt the end of this red light district.

Yet loitering for prostitution remains illegal according to Maltese law which also contains anachronistic statutes against leading “an idle and vagrant life” which are reminiscent of Victorian poor laws.

Other European countries like Belgium, Finland and Sweden have removed anti-vagrancy laws from their statutes.

The Criminal Code states that it is illegal “in any public place importunes any person to beg alms.” By-laws introduced by local councils go a step further from laws which already criminalise homelessness and begging in Malta.

In 1992, the city of Chicago adopted an anti-loitering law aimed at restricting gang related activity, especially violent crime but in 1999 the law was ruled to be in breach of the US constitution which found it to be “unacceptably vague”.

In 2000, the city redefined loitering as “remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behaviour is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.”