Two types of laws are of very strict interpretation. Fiscal legislation has to be clear. Equally clear and precise must be criminal law. You cannot convict a person approximately. Either he is guilty or not guilty at law. Equally strict are laws of procedure, whether civil or criminal. This is not formalism. Procedure is there to establish the "rules of the game". If these rules are binding and important in the sphere of civil law, they are fundamental in criminal matters.

You may think that I am simply repeating trite, commonplace axioms, which everyone should know. Criminal law requires precision not approximation. What prompted me to write was a law which has baffled me. These are the new amendments to the Criminal Code which were passed by Parliament, and certain parts of the law introducing the amendments came into force on May 1, 2002.

The rest are in abeyance. The Minister of Justice has been granted powers by Parliament to introduce the whole Act or parts of it at different times. This is what happened. I am sorry to say that it is an exercise in disasters.

Plea bargaining

The amending law stated that there could be plea bargaining on the very first day of a person being charged in court. Plea bargaining is not an illegitimate exercise. It functions in the United States, and it was introduced closer to home, in Italy. The prosecution and the defence agree on a punishment which can legitimately be meted out. That is the stage where this sort of agreement can be reached.

The Court of Magistrates was faced with a request by prosecution and defence stating that a reasonable punishment would be X months in prison. The Court said that although the law came into force on May 1, the stage had already been superseded when this plea bargain was applicable.

This is a false impression. The section of the law (now in the amendments being called articles, not much in line with our traditional Anglo-Saxon reference to sections of the law) which introduces plea bargaining before the Magistrates' Court makes reference to Section 453A of the Criminal Code. Section 392A (5) is an effective provision, but it all depends on Section 453A.

This last section, though enacted by parliament, is still in abeyance. So if one reads Section 392A(5) and thinks that there is the possibility of plea bargaining, he will come to the end of a cull-de-sac when he is then referred to Section 453A, which is not written into the law book.

All this may be just boring legalism.

Bail

The question of personal freedom is not a question of leniency. It is a question of personal human rights. Many who make summary justice on others would cry foul if they are in any way touched. This is natural, but not honest. Human rights of personal freedom are a common good.

Well, Parliament has amended the law. Section 575 has been amended and is an effective part of the law. In one of the new amendments, effective as ever, reference is made to the new section 574A. If you examine the original Act passed by Parliament, you found find that it has been included. But the Minister of Justice did not put into effect this section. So here we have another cul-de-sac. One section of the law sending you to another link that is not there.

I must add here that it would be worthwhile if the minister reconsiders section 574A before making it effective. It is in flagrant violation of all the case-law of the European Court of Human Rights on the subject.

This deals with the situation when an arrested person is brought before the magistrate. The magistrate has to hear the prosecution about the arrest and grounds for keeping the person arrested. There is no provision to give an equal right to the person charged to challenge that arrest.

You may ask: why should this be? Persons charged should wither in cells. As the law stands, a person by the name of S. Damato cannot even challenge that he is the wrong person, and that the one who should be under arrest is his cousin by the name S. Damato. This is taken from a true case in the recent past.

What worries me is that such slipshod methods of legislating are not conducive to good justice. It is my duty to draw attention to such matters since legislation is my business, your business, our business.

Sincerely, I do not know the legal answer to the situation when one law puts you headlong into a cul-de-sac. The only answer is legislating again and properly.