Friday, 1 July 2005

When the law is an ass

It is surprising how some laws go unchallenged for so long even when they are so blatantly in conflict with the provisions that guarantee the universal respect of human rights. This alone makes them unconstitutional. Notwithstanding, such laws are continuously made use of at our courts by our prosecutors without the slightest twinge of conscience, magistrates rule on the basis of such laws arguably without pointing out their inequity, and lawyers defend clients against the imputation of such laws apparently without the slightest remonstration. This seems to me quite incredible (not to mention troubling).

In particular, I refer to Article 30 of Chapter 101 of the Laws of Malta (Dangerous Drugs Ordinance), which, in part, states the following:

Where a person has purchased or otherwise obtained or acquired a drug [...], the evidence of such person in proceedings against the person from whom he shall have purchased, obtained or acquired the drug, shall not require to be corroborated by other circumstances [italics mine].

This legal provision was added to our 1939 ordinance as Article 5 of Act VIII of 1986 under the title ‘Evidence by accomplice’. The initial part of this article, which I removed from the above paragraph, expressly states that this new provision will be accepted ‘notwithstanding the provisions of sub-article (3) of article 639 of the Criminal Code’. The reference is to a much older legal provision that, in substance, also under the title ‘Evidence by accomplice’, states the following:

When the only witness against the accused in any proceeding for any offence [...] is an accomplice whose evidence is not sufficiently corroborated by other circumstances, the evidence of such single witness shall not be sufficient for the conviction of the accused [italics mine].

Apart of the manifest contradiction of this provision of our Criminal Code to Article 30 of Chapter 101, in particular note here the words ‘sufficiently corroborated’. This should mean that, despite the fact that more than one circumstance may exist to corroborate the evidence of a single witness, if none of them are insufficient to substantiate satisfactorily the original evidence, then this evidence will be inadmissible. But Article 30 of Chapter 101 prescribes more than the mere contrary. Here it is recognised that not even one circumstance is needed, sufficient or not, for the original evidence to be admissible.

This ignites my curiosity. It makes me anxious to learn how legislators can be so shortsighted so as not to foresee the distressing effects that such a legal provision can yield. To solve my quandary I sought out one of our key legislators at the time, and asked him to give me the background to this Act of 1986. He was kind enough to oblige.

(Since I am not a person whose profession is the law the legal facts of this writing were thoroughly checked out with more then one lawyer, to whom I am grateful for their kind contributions.)

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