Thoughts on sanctions in the legal system

While reading the news on various media sites today, I have come across a number of irate comments by the general public, over fines which are either excessively high or excessively low. So yesterday, the news hit the media with a man who was fined 20 Euros for masturbating in public, decidedly a lewd act under Maltese criminal law, with minimum and maximum fines between 6.99 and 58 Euro. The fact that the amounts appear laughable is not the fault of the courts, but the fact that the fines have not been amended to reflect the current cost of living. I imagine that when they were originally drafted, they were quite high, to indicate the outrage that they would cause.

On the contrary, two people swimming in the nude in one of our bays were fined 100 Eur each – a far greater amount for a far less serious offence. Indeed, to my mind, the fact that a person swims in the nude (and often cannot be seen by anyone when under water anyway) cannot be offensive because this is how God made us – it would not bother me if they left me alone. I would, however, be very offended and uncomfortable (even at my age, no longer being a teenager) if a man (or even a woman, really) were to be masturbating in the open anywhere around me. I find it oppressive and harrassing, and yet fined at levels less than what probably was considered by the carefree nude bathers a natural pleasure without bothering anybody.

However, the trouble with this whole matter is the fact that no authority has sat with the Code of Police Laws, the Criminal Code and other legislation to evaluate the punitive measures, especially the pecuniary ones (though not only). In many cases, the value of the punishment (money and / or time) no longer reflects society’s morals. Possibly, in some cases, the fines or penalties should be increased – either in terms of monetary value or because their seriousness is now no longer overlooked. The same should happen (or rather, the reverse) for acts which are no longer considered to strike at the core of society’s values.

The core of this whole set of arguments is the legal maxim which we learnt at law school, indeed in our first year: that justice must not only be done, but must be manifestly done. While in many cases, comments seen on the public media are plain idiotic, the message behind them seems to be that there is far too much leniency (e.g. giving two suspended sentences, when the law only contemplates a first one, which should be followed by consecutive serving of these sentences if followed by another period). On the other hand, growing prison populations are a worldwide problem so that the courts are faced with the dilemma of how to sentence, in the knowledge that they ought to reserve such punishments for the harsher, or harshest of crimes. Indeed, prison grounds are known to have hardened or created criminals and it is in this perspective that the lesser sentences are meted out.

All in all, a balance still needs to be created, between appropriate financial penalties which would not cause derisory laughter, and between creating a rational balance between the action and the sanction. It is not an easy balance to achieve; it must start at the level of the legislator and be continued in court, with the prosecution (and defence) properly carrying out their roles in between in the interests of the delivery of justice to the people.

 

[The opinions of the author expressed in this article are her own personal views and are in no way endorsed by any authority or entity. They are served as an expression of academic and social thought only, and are not sought to garner any political argument. Political comments, particularly partisan politics, and irrelevant or inane comments will be reported as spam and deleted.]

By Geraldine Spiteri

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