A discrepancy in the laws that came to light last week after a man was arraigned for sharing a video of himself having sex with his former partner without her consent has been promptly corrected. The magistrate drew attention to the error in legislation while delivering judgement.
Magistrate Donatella Frendo Dimech highlighted a substantial difference between the Maltese and English versions of Article 208 (E) of the Criminal Code while handing down a judgement against 37-year-old Pietà resident John Ebejer.
Whereas the English version of the law laid down a punishment of a fine and/or imprisonment “up to five years”, the Maltese version spoke of a “five-year jail term or a fine”.
The Maltese version effectively removed from the court all customary discretion to determine the exact term of imprisonment – as things were the only prison term that could be imposed was of five years. The man was subsequently fined for his offence.
The situation attracted strong criticism on social media, with many asking whether the man, effectively, was allowed to get off with the minimum of punishments due to a technicality.
Government spokesperson Etienne St John confirmed that the relevant article has now been amended in line with its English counterpart, and that the discrepancy has been eliminated.
“When it’s a matter of a correction due to a discrepancy between the Maltese text and the English text, there is no need to refer the matter to Parliament, as per the Statute Law Revision Act,” the spokesman said.
Legal sources confirmed that the court had acted correctly in applying the Maltese version to the letter. Asked what happens in such situations, criminal lawyer Stefano Filletti explained that the rules of law clearly lay down that the Maltese version always takes precedence over its English counterpart.
“The function of court is to apply the law; it cannot change it or bend the rules. Although the law does give discretion to the court to apply the spirit of the law in case of ambiguity, in this case the Maltese version was very clear. There was no ambiguity,” Dr Filletti said.
He added that the system is based on the principle of separation of powers, where only Parliament is given the power to amend legislation.
“What is sure in this case is that the matter required immediate intervention,” he said.
Meantime, the court decision attracted further criticism due to the leniency of the fine imposed. With the law setting the minimum at €4,000, the judgement delivered a fine of €4,500 payable in instalments over a period of 12 months, significantly reducing the impact on the offender.
The lighter sentence goes contrary to current public opinion and the general feel of dissatisfaction that this nature of crime, which typically targets females, does not carry enough retribution.
Female rights activists, in particular, have noted how our legal system needs to send a stronger message that such crimes are being treated seriously by the system.
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