Warning: you are entering a minefield in which judicial sense and nonsense equally risk being blown up. Our courts have never really faced, let alone solved, the unstable dynamics of lawful authority, of illegitimate usurpation of power, and where you, the little man and woman, stand between the rock and the hard place.
The criminal courts have had some occasions to deal with these issues, and have, in my view, determined them grotesquely. But it had to be a constitutional judge who came to the rescue with the most hallucinating of solutions. If a police officer, his doctrine goes, orders you to take a flying leap over the Barrakka lift, your obedience must be instant and unquestioning, otherwise you commit the criminal offence of disobeying police orders. Being in a bountiful mood, the judge reserved in your favour the right to challenge the legality of that order in court, but only once you have obeyed and lie smashed in the ditch below.
The issues here should be simple ones: is it always a criminal offence to disobey police orders? Should one distinguish between lawful orders and unlawful orders? What makes an order legitimate?
There is only one judgment by a constitutional judge that answers these questions, and that answer is blood-curdlingly appalling. I want this superb jewel to shine eternally: “The honourable Court of Criminal Appeal held, in 1908, that, even in the case of an unlawful order of the police, the citizen must suffer the injustice and obey, saving (later) action against its intrinsic injustice, and this is expected to ensure that a democratic State does not degenerate into anarchy.”
Now the world could be roughly divided into two: democratic States and police States. Before the constitutional judge made this historic pronouncement, I was inclined to believe that the unquestioning submission to the will of the police was the hallmark of the police State. Thanks to the amazing grace of the constitutional judge of Malta – I was blind but now I see – it is exactly the other way round. Unqualified capitulation to police orders, Mr Clueless, is the very essence of democracy. How would we dumbasses have ever learnt what the crux of democracy is, without enlightenment from our constitutional judges?
Thankfully, this judgment was reversed by the full Constitutional Court, but for reasons unconnected with this calamitous bestiality. This 50-carat jewel blazes forever undimmed.
The criminal code deals with this issue twice: it criminalises whoever disobeys the lawful orders of any authority or any person entrusted with a public service. And it mirrors this in another provision: any police officer may proceed to the arrest of any person who disobeys his lawful orders. Note the precise wording of the law: what you are not allowed to disobey are ‘lawful orders’, not ‘orders from a lawful authority’. U m’hux xorta? Eminently reasonable powers, heralded by an eminently reasonable code, interpreted by eminently brownnoser judges.
So don’t forget. If a policeman orders you, young lady, to have sex with him, you obey instantly
The rot started in 1908. On May 31, over 30 band-club members playing festive music marched through the streets of Qormi, when the police ordered them to stop. They refused and the police hauled them all before the criminal court, accusing them with failing to obey lawful police orders. Why? Were they breaking any law? Had they failed to request prior police permission? The court of criminal appeal was not in the least bit interested. If the police ordered them to stop, they had to, whether the order was just or unjust – period. “So long as the police were competent to give that order and the order was regular in its form” it had to be obeyed, just or unjust, lawful or unlawful. And then, once obeyed, the victim can proceed to establish its justice in later proceedings to be instituted by him or her.
That was in 1908, and related to um-pa-pa, not the trampling over of fundamental human rights. Two world wars later, the Great Depression thrown in, the rise and fall of Communism, Fascism and Nazism, the Holocaust, the Universal Declaration of Human Rights, the shaming of police States, the foundation of the European Union all jostled their way to the centre of the world stage – but not a flicker of all this registers in the mind of the Maltese judge.
If the abject submission to the police was good enough for the Kaiser in 1908, it had better to be worshipped again by a human rights court in the era when the world was celebrating human rights. Elementary, no? Craving to leave his mark on history, a freedom fighter robed in judicial damask added a corollary, absent in 1908: this reckless subservience to the police, he chanted, was indispensable for the survival of democracy.
A sizeable number of other judgments of the criminal courts followed these same patterns. It takes a lot of disbelief to navigate these judgments, but faith, a little guesswork and familiarity with the theatre of the absurd will help.
I know how all this translated in practice. One example: during the crisis of the private schools, when the government was hell-bent on shutting down all Church educational institutions, the police issued an order to all principals of religious schools and convents not to allow on their premises anyone who was not a religious belonging to the community running the school, under penalty of being charged in the criminal courts with disobeying police orders.
A totally arbitrary, foul and illegitimate police order, based exclusively on the rule of arrogance and the persuasive blandishments of fear. And yet each and every school principal obeyed that order. No one challenged it – in truth, there were only the castrated courts to address a challenge.
Even when the police orders were in blatant breach of fundamental human rights, like those forbidding peaceful student protests, or the police ordering well-behaved demonstrators to remove any posters from their hands and tearing them up when they demurred, only one lonely isolated resistance to them is on record. Were those police commands, evidently in breach of fundamental human rights, orders that had to be obeyed unquestioningly, under penalty of being found guilty of breaching police orders? The gross irony of it: the police are violating your fundamental human rights but it is you who face criminal prosecution. It is you who, according to these perverse judgments, are to be found guilty. The bullies are the heroes of legality. And the victims? They are the delinquents. Some respect for tyranny please – the courts said so.
The irony of it is that these judgments put the exercise of lawful power on exactly the same plane as the abuse of illegitimate power. Both have equally to be observed. Both make you a criminal if you disobey. The law clearly places on the police the onus of proving that the order given was “lawful”. Our regime-tonguing courts have stood this on its head – the fact that the order was given by the police, in itself, makes the order irresistible and to be obeyed, under penalty of criminal prosecution.
See how different all this is from the case law of the Strasbourg Court. Yevgeny Frumkin had been jailed in Russia for “disobeying lawful police orders”. Strasbourg ordered Vladimir Putin’s Russia to pay him €32,000 compensation, because an unlawful order by the police does not become lawful simply if it comes from men in uniform. The police can only issue that order if it is backed by the law. Russia and Malta have forged an unshakeable blood-bond on this issue, but Russia pays compensation and Malta pays the police.
So don’t forget. If a policeman orders you, young lady, to have sex with him, you obey instantly – police orders have to be complied with unquestionably and promptly, otherwise you are automatically a criminal, subject to prosecution. The benevolent judge allows you to query the basis of that order, but only later, after you have obeyed. Pleasure the policeman with a brave heart and a smile on your lips – remember what the good judge said: you are doing it for the fatherland and for democracy.
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.