Essays in criminal law and constitutional history ‒ some interesting revelations

Essays in Maltese Legal History – Volume 2

by Mark A. Sammut Sassi

Pertinent Press

When I was requested to write a review of this work by Mark Sammut Sassi, I accepted with much trepidation. Having read his previous writings and having spent (and still spending) many hours of discussion with him, on a diverse range of issues – legal, historical and philosophical – I was not sure I was up to it. Still I decided to have a go.

Sammut Sassi has many achievements to his name, graduating from the universities of Malta, Leicester and Oxford, and the London School of Economics. He is a member of a number of prestigious academic societies in various countries and has regaled us with many books and articles, including the treatise Il-Liġi, il-Morali, u r-Raġuni with the profound thinker, the late chief justice Giuseppe Mifsud Bonnici.

Just listing his credentials explains my trepidation. In themselves they are a story. To this must be added the preface entitled ‘Almost a preface’ penned by another great luminary, judge emeritus Giovanni Bonello. This leaves little space for a review of both man and content. The preface is a review in itself.

Bonello writes: “I am left stunned by the fastidious perseverance of Mark Sammut”, and “This collection also showcases some seminal essays of the evaluation of criminal doctrine in Malta”. He adds: “Dr Sammut has demonstrated a particularly rare genius at unravelling how and when the various rivers of thought, flowing in different, sometimes opposite directions, at some point met and energised each other.” What more?

In his introduction, Sammut Sassi draws a very interesting and, in my opinion, subtle distinction between history of legislation and history of law. It is a distinction that requires more explanation. He advocates, under his­tory of legislation, that the process of understanding law starts with the primary source, the beginning of the production chain, the intention of the legislator.

As a long-practising litigator, I have always approached the chain the other way round: law – jurisprudence/case law – parliamentary debates. If the law was clear in the first place, I would stop there. A point of divergence between us.

The author writes about the “history of ideas”: politics, philosophy and economics; as he delves into essays on constitutional and criminal law.

Of Malta: “The economy was colonial and the legal framework imperial.” “… whatever the impression they gave, the highly-civilised Italo-French (ified) elites of Malta were not ready to kow tow so easily to the new masters [the British].”

“These essays are an attempt to challenge the mentality bequeathed to a small, insular community by a huge world-wide empire for the benefit of the mightier of the two.”

Sammut Sassi’s opening section is on criminal law. His first essay, ‘An Enlightened Shadow’, gives us his definition of jurisprudence: philosophy of law, legal theory, case law and judge-made law. He tells us that in Europe under the Ancien Régime, “judges had more power than the weak centralised state to make the law”. And that “criminal law [implies] a political organisation of society”.

Sammut Sassi then provides us, in another essay, with ‘Common Law contributions to the Maltese Penal Code’, as rendered from the French Code. Interestingly, he points out how the British colonial masters tried to get the Maltese and the Scots to at least temper their Roman law tradition, bringing it closer to common law.

“The Maltese claimed that they belonged to the Roman Law tradition, so did the Scots, and it was therefore logical for the colonial administration to invite a Scotsman to prune the Maltese draft criminal code with a view to making it more palatable to the common-law masters.”

In this they were largely unsuccessful. The Scottish legal regime has remained separate from that of the rest of the UK, as has, more so, the Maltese. The Scotsman was lawyer Andrew Jameson, presenting his famous report (‘Report on the Proposed Code of Criminal Laws for the Island of Malta and its Dependencies’) in 1844, “with the eye of a historian more than that of a lawyer”.

These essays are an attempt to challenge the mentality bequeathed to a small, insular community by a huge world-wide empire for the benefit of the mightier of the two

In the section on constitutional law, Sammut Sassi unearths, so to say, Amabile Bonello’s essay ‘Diritto Pubblico di Malta’, which paper, on the essay prepared by the present author, Bonello, in his preface, describes as “the first and only monument to Bonello’s contribution to building the foun­dations of our nationhood and of our constitutional edifice”. He then provides a full translation of Bonello’s 1868 essay (quite a task), the essay of a layman, and then asks: “Who was Amabile Bonello?”, to which he replies, and then, for a better understanding, goes on to describe “The Political Context in 1867 Malta”.

Before concluding his paper, Sammut Sassi introduces us to Gian Domenico Romagnosi, whose quotation Amabile Bonello opens his essay with: “...the sovereign is higher in ‘law and in fact’ to each citizen but not to ‘the united body of the nation’, in which lies the ultimate constitutional guarantee”.

Next is J.J. Dillon’s Memoir on Malta. Dillon was a hereditary knight and baron of the Holy Roman Empire and a barrister-at-law since 1801. His was a ‘Memoir Concerning the Political State of Malta’ (1807). He asked “whether the British acquired sovereignty over Malta through conquest or voluntary-informal cessation”. He also asked whether the position was that the British were occupants with the permission of the Maltese – a position that he seems to support and with which I concur.

He continues enquiring by posing the question whether Malta should be an independent principality governed by a prince from the British Royal family – a highly interesting, albeit controversial, proposition, which clearly would not have been welcomed by a predominant portion of the Maltese popu­lation at the time; and which, in fact, Dillon later shoots down.

Sammut Sassi provides a synopsis of Dillon’s Memoir, which consists of two parts. In Part I, he shares his admiration for the Maltese, “a people neither mean nor abject, but resolute and intrepid”. Part II deals with “the form of government which it may be proper to establish for the island”.

Sammut Sassi’s final essay is ‘Constitutional Law as History’. He defines constitutional law as an “amalgam of law, politics and history”. I shall quote some of the salient parts of this paper:

“The British Constitution is the result of the historical evolution of British politics” – “something which evolves”.

“The Maltese embrace an attitude… in recognising the supremacy of Parliament, rather than the supremacy of the Constitution, even when prevailing constitutional provisions and norms would seem to support the latter over the former.”

“For the British, their Constitution evolved in the typical common law fashion, that is to say bottom-up; for the Maltese, the British Constitution (or its derivative) was created in the typical civil-law fashion, that is to say top-down: the handing down of concepts and rules buy a higher authority.”

The book also provides us with a couple of reviews, including, aptly, of the first volume of Sammut Sassi’s Essays, penned by Giuseppe Mifsud Bonnici, as well as a bibliography.

All in all, this work under review, Essays in Maltese Legal History ‒ Volume 2, is a continued study in depth of diverse, some newly discovered or revealed, writings strung together by law and history… and politics.

As is now an established expectation in Sammut Sassi’s regard, this is a further academic publication to be commended.