The police should be reluctant to arraign anybody on the vague charge of committing “other immoral acts” after a Constitutional Court slammed the law’s lack of definition, according to lawyers.
In a ruling a few days ago, Mr Justice Joseph Micallef said the law’s use of the words “other immoral actions” breached the fundamental human rights of people facing such charges because the definition was not specific and open to interpretation.
The government will appeal the judgment, according to a spokesman for the Attorney General.
“Given that the case is still subject to appeal, it is not considered prudent for this office to comment in the media. It will, however, do so in its application of appeal before the Constitutional Court,” the spokesman said.
An appeal must be filed by not later than eight working days from the date of the judgment, which was delivered last Wednesday.
For lawyer Edward Gatt, who instituted the case along with constitutional lawyer Therese Comodini Cachia, the judgment was a “landmark decision”.
Dr Gatt’s clients were charged under the White Slave Traffic Ordinance for operating a Buġibba lap dancing bar but they contested the charge of “other immoral acts” on grounds that it was left to the presiding judge to determine whether scantily clad women dancing on a man’s lap in a gentlemen’s club constituted an immoral act or not.
Dr Gatt said other countries, such as the UK, had clear and detailed definitions outlined by the law of what constituted immoral acts. This ensured a judge’s subjective view of what constituted immorality irrelevant.
The Constitutional Court said legal provisions had to be “sufficiently foreseeable and accessible” to avoid a criminal conviction being based on a legal norm of which the person concerned “could not... have been aware of beforehand”.
If the government loses the appeal and the original decision stands, the law would have to change.
However, the outcome to date left the police in a conundrum when tasked to take action against pole and lap dancing clubs, Dr Gatt said.
“After this decision, the police should put pressure on legislators to include clearer definitions of what constitutes an immoral act in the law,” he said.
For lawyer Philip Manduca, the court’s decision should make the police “reluctant to issue a charge which included the phrase ‘other immoral acts’”.
He said morality was constantly changing and the legislator had a duty to reflect contemporary trends and clearly define what was illegal.
“For instance, in 1960, in Malta, a man was found guilty because in his jukebox he had the song Nuda (Naked) by Domenico Modugno. The requirements of morals vary from time to time and place to place,” Dr Manduca said, adding it was up to Parliament to change the law.
The prospect of Parliament debating what is immoral or not could make for some interesting discussion.
For Dr Gatt, it was ironic that, while Malta was still discussing lap and pole dancing clubs, abroad the issues were more sensitive and explicit. “If the judgment is overturned on appeal, my clients are ready to go all the way to the European Court of Human Rights. It would be interesting to see how the judges in Strasbourg, who have to decide on other cases such as whether Danish prostitutes should pay taxes, will view the Maltese situation,” Dr Gatt said.
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