16 Feb 2017 Why the repeal of criminal libel should apply to the few pending cases
The Bill to reform the libel laws is an important step in the right direction. Its core implements the major proposals I made way back in 2011 to abolish criminal libel and increase the maximum amount of civil damages. Other improvements like the introduction of mediation crystallise current practices, since as far as I know, informally this happens in most cases with lawyers assisting clients reach am amicable settlement before the case goes to judgment.
However an interesting point has been raised regarding the applicability of the new law to pending cases once criminal libel repeal comes in force.
My opinion is to the effect that the few pending cases should be adjourned sine die, since the Bill will presumably not take long to become law. Moreover I am of the opinion that once the Bill becomes law the Prosecution should be in a position to withdraw all pending cases. Why?
Needless to state that the provisions of the Interpretation Act have to be seen in the context of the Constitution of Malta art 39(8) which prevails in the inconsistency.
The relevant disposition in the Bill making an exception to the general rule of the inoperability of criminal laws beyond their legal limit of operation, is to effect that no punishment of imprisonment can be inflicted for those criminal libel cases pending at the time the law comes in force.
Now first of all the general principle, as authoritatively explained by Professor Anthony Mamo, is the inoperability of criminal laws beyond their legal limit of operation (repeal) –
”In fact, in the hypothesis under discussion, though the liability was contracted while the former law was still in force, the prosecution and sentence would be carried on and pronounced after such law has been repealed. So that, if such law were to be applied to such prosecution and sentence, it would be given an effect beyond its legal limit of operation.
It is thus not by way of an equitable retrospective application of the new law but rather on the grounds that the operation of the old law cannot extend beyond its repeal (divieto di ultra-attivita’) that, in this hypothesis, the criminal proceedings cannot be maintained in respect of the act which, at the time of the trial, has ceased to constitute a criminal offence.” – Lectures in Criminal Law – Professor Sir Anthony J Mamo – p.32
However in this case the provision in the new Bill making the exception to this general rule is based and grounded on a mitigation of punishment in the sense that whilst remaining applicable to pending cases no punishment of imprisonment may be inflicted.
However currently in the case of criminal libel under the Press Act only a fine (multa) is applicable – and no punishment of imprisonment (Cap 248 art 11), and hence it is clear that at least as regards the said article 11 (criminal libel) the exception to the general rule of non-operability beyond repeal is based on a wrong premise, which could thus have constitutional implications as to legal certainty.
Thus if the legislator’s intention was to leave criminal libel in force with regards to pending cases BUT with a lesser punishment applicable this cannot be the case with regards to art 11 since even at present no imprisonment is applicable. Thus it will be in force and unmitigated.
One should also consider we are here dealing with the fundamental human right of freedom of expression, and all these arguments should be considered in that particular context.
Thus, these are the, somewhat complicated reasons why, in my humble opinion as the Bill passes through the various sages in Parliament, the repeal of criminal libel should apply to all pending cases once the new Law hopefully comes in force.