MP criticises bail granted to alleged drug trafficker

Nationalist MP Franco Galea yesterday criticised a court decision granting bail to a Briton accused of importing 50,000 ecstasy pills.

Mr Galea said the people were seeing tough law enforcement on minor things, such as areas falling under the responsibility of local wardens, but justice was not seen to be done in cases such as this.

Mr Galea said this latest drugs case contrasted sharply with the criticism directed at Malta some time ago after a foreign girl was kept in prison for importing a small amount of drug for personal use.

Decisions such as this also served to discourage the police force, which was at the vanguard of the fight against crime.

Mr Galea said loss of public respect for the institutions was a very serious matter, but if there was to be respect, laws had to be enforced on everyone and there should be zero tolerance.

The Nationalist MP was speaking during the debate on a Bill to amend the Civil Code. While welcoming the Bill, Mr Galea referred to the provision whereby a birth certificate would not indicate a mother as having been single, saying that although he was not against this, one needed to be careful not to encourage birth out of wedlock.

Earlier in the debate, Education Minister Louis Galea said Malta's membership of the EU influenced the manner in which the Civil Code was being updated to reflect current circumstances. Recent changes to the code could only be described as modern and progressive and they had enhanced the way citizens could insist on their rights. Some amendments in today's bill reflected social circumstances, such as the provision providing that a husband may, within a limited period, file a case to repudiate a child which was not his own but was conceived during wedlock and born before December 1, 1993.

Joe Falzon (PN) welcomed the provisions of the Bill making it easier to issue hypothecs on movable property, saying this would make it easier for small businesses to have access to finance. This provision, therefore, would promote business.

Also welcome was the raising of the threshold of funds available to a surviving spouse from the community of acquests until inheritance issues were sorted out. He said the former threshold had been far too low and had caused financial hardship for some people, who would already have been suffering the trauma of losing a spouse.

Silvio Parnis (MLP) said the bill went deep into modern social problems, in some cases exacerbated by rapid changes. Never at any time in the past had Malta seen so many broken marriages, which caused some of the problems that the Bill was seeking to solve. True justice demanded that such cases be helped along for an early solution, at least in order to relieve financial hardships.

Senior citizens, too, had their own crop of problems, some of which were admittedly inflicted by one part over the other. The time had come to ensure that women got a fair share of their husbands' pensions, so that such hardships could become a thing of the past.

Joe Brincat (MLP) reiterated the opposition's objection to the clause of the Bill providing that a court may order that the liquidation of the community of acquests in a marriage separation case be referred to the Arbitration Centre. He said the liquidation of the community of acquests could be complex. Rather than amending the law to ease the workload of the court, what Parliament needed to legislate for was greater justice in the way separations were decided.

Dr Brincat also referred to a clause of the Bill on amicable settlement of marriage separations, noting that a judge may revoke, modify or add conditions of such an agreement. This, he said, would be a mistake once a settlement was amicable.

Referring to cases where a husband may repudiate a child conceived during wedlock, Dr Brincat said the most important thing for the child was its genetic identity. Therefore the law should include amendments to other laws aimed at ensuring that birth certificates were a reflection of the truth.

Turning to enrichment to the detriment of others, Dr Brincat objected to the fact that no such case may be filed where the person who suffered the loss may take another action to make up for such loss.

He also insisted that hypothecs and special privileges on movables needed to be officially registered, otherwise this system would not work.

Dr Brincat observed that in terms of this law, the government was extending in its favour the prescriptive period for actions it may take for the payment of judicial fees, customs or other dues. This contrasted with the problems which ordinary people had, to receive funds due to them from the government.

The Labour MP said the clause providing that a mother's status as a single mother would not be shown on her child's birth certificate would not serve its purpose as long as the child had its mother's surname, because that gave the game away. He suggested Malta should adopt the Canadian system, where the parents were not listed.

Edwin Vassallo said that thanks to this Bill, it would now be easier for the banks to lend money on the basis of guarantees linked to movables. Such hypothecs, which would be officially registered, would improve business liquidity and hence lead to growth.

Another advantage was that the value of movable assets that could now be hypothecated would be closer to the value of collateral needed.

Mr Vassallo said such amendments were the essence of simplifying bureaucracy. Through their social aspects they could also be considered as instruments of solidarity. But society needed to be responsible in the way it looked at accessibility to funds. The concept of over-trading must be carefully considered, with people overstepping trading levels that not even the country could afford. If not a red warning light, at least there should be an amber light. Over-trading could not avoid bringing on financial problems to any businessman seeking excessive economic growth.

Mario de Marco (PN) said the Civil Code evolved in the same way as society. This Bill had six basic points, one of which involved cases where a husband may repudiate a child who although conceived during wedlock was not his.

Legislators always wanted such challenges to be made as early as possible, generally within six months or a year after the birth. This timespan, however, sometimes could not be observed and the European Court some months ago decided that Maltese law had denied a man the opportunity to challenge the paternity of a child because of the time constraints which existed at the time.

This Bill therefore laid down that in the case of children born before December 1, 1993 (after which the law was changed), a husband may file a case to repudiate the child conceived during wedlock. Such cases had to be filed by the end of next year.

Another proposal in this Bill tackled the way how the status of the parents was shown on the birth certificates of their children. This Bill laid down that a birth certificate would only indicate a mother as being married, when that was the case, with no reference when the mother was single. This was a significant change which would remove embarrassment that could be caused to children.

Also interesting was the amendment on action over unfair enrichment to the detriment of others (actio de in rem verso). This was something which had long been recognised in jurisprudence and it was only right that it was now being formally introduced in the statute book.

The Bill also extended the concept of hypothecs to immovables. The principle, as in the case of immovable property, was that the hypothec would continue with the movable property, even when ownership changed hands. The list of immovable properties on which a hypothec could be extended would be listed by legal notice. It could include, for example, industrial machinery, which could serve as a hypothec for loans. This truly reflected the dynamic nature of the current business environment.

Dr de Marco said he felt further reflection was needed on the amendment providing that in marriage separation cases, a court may refer the liquidation of the community of acquists to the Arbitration Centre.

His concern was that when important parts of a case were transferred from the ordinary courts to other bodies, the rhythm of the case could be lost.

An arbiter had to be chosen and new appointments had to be set. A judge had the authority to impose his rhythm on a case whereas the arbiter always sought consensus among the parties.

Furthermore the Bill did not specify who would pay the arbiter. Could new evidence be presented before the Arbitration Centre or would the arbiter decide on the basis of evidence presented before the court?

Would the declaration of dissolution come before or after a case was referred to arbitration? Clearly, it should come before so that the parties could initially limit their evidence to aspects such as alimony, with the liquidation of the community of acquists coming later.

Another possible problem was the fact that one could end up with two appeals, one from the judgment of the court and the other from the arbitration award.

Dr de Marco said that while he could acknowledge the purposes of this amendment, he had reservations on its feasibility. A solution could be for the Family Court to give decisions in parte on various aspects of a case, such as alimony, custody and dissolution, leaving other aspects such as the liquidation of the community of acquists to a later stage. In this way one would not lose the rhythm of the case and the case would continue to be heard by the court.

Winding up the debate, Parliamentary Secretary Carmelo Mifsud Bonnici referred to comments on Tuesday by Gavin Gulia, saying the Labour MP had shown himself to be conservative and was against giving the courts the tools to decide on cases expeditiously, especially when couples appeared before the court already knowing exactly what they wanted except on one particular point.

The sitting judge usually refrained from taking a decision on the agreed aspects with a view of handing down a complete sentence. The Bill was giving the court the right to declare the community of acquists dissolved in order to expedite matters. Experts nominated to get involved in the liquidation usually took their time and increased costs for the couple, whereas now the court could send the case to arbitration.

Whereas the court usually deferred cased by months, the Arbitration Centre had a time limit to reach its conclusions.

Dr Mifsud Bonnici said it was not true that the Arbitration Centre had been set up primarily for international cases as Dr Gulia had said. What Dr Gulia had not said was that when Labour had set up the Arbitration Centre there were members who had never attended sittings, and the remuneration for two of them was now enough for all the board.

The Bill was then given a second reading.