Andrea Zammit Pro-Italianism, treason and conspiracy in wartime Malta A judicial inquiry into deportation and capital punishment as imperial deterrents
Dr Andrea Zammit is a University of Malta alumnus and currently forms part of the civil and commercial law department of the legal firm IURIS Malta in Valletta. Zammit successfully graduated with a Bachelor of Laws and Master in Advocacy degree from the University of Malta in 2018. In 2016, he spent a semester of studies abroad at the prestigious Universita’ degli studi di Urbino Carlo Bo, where he defended a paper titled ‘Il valore risocializzante della pena detentiva sottolineato dalla sentenza Torreggiani e l-ART. 27(3°) Cost.’. His Bachelor’s thesis purported to be a judicial inquiry into the main deterrents used by the British colonials as a means of containing Pro-Italianism in wartime Malta. Besides being a practitioner, Zammit is also into research ranging from legal history to the Theory of Law, as well as other subjects which pertain to the studies of history, philosophy and the arts.
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1. Pro-Italianism, Internment and Deportation: 1939- 1945 1.1 Historical overview and the juridical implications.
‘W
ithin the course of the last few days the Authorities have found it necessary to restrict the movements of certain persons in these islands as a safeguard against any conscious or unconscious action which might endanger public safety’. So read the editorial commentary of the Malta Daily Chronicle of the 1st of June 1940, a Colonial manoeuvre criticised by internee Dr. Herbert Ganado as mere juridical novelty.1 The spirit of the Habeas Corpus in barring State arrests, if made within forty-eight hours a subject, was not hauled into Court. It was expediently set aside under the transference of power from the British Parliament to the Governments in interning, on the slightest suspicion, British subjects - without a legal process, an accusation and founded proof – shattering the reassuring degree of liberty nurtured by those incriminated through sui generis offences.2 The 1939 Emergency Powers Regulation Act flagged under the canons of legality, was to be coupled by Ordinance No.1 of 1942 advocating deportation of the internees. Notwithstanding a legal victory of the latter in successfully exposing the illegality of such a measure, the Maltese authorities were impotent in raising juridical objections to the Governor3 whose delegated mission was that of representing the interests of Britain in Malta as a fortress Colony with the menace of fascistisation looming over its seas4 while particularised miscarriage of justice ensued within. The abnormal circumstances of the Second World War ushered in an internal politico-cultural struggle culminated by the language question and removal of Italian language from the law courts in August 1934.5 The British were adamant in maintaining new regulations on a rigid press law6 entailing pre-publication guarantees and sanctions of an accusatory nature levelled against personages like Enrico Mizzi, whereby lamentations followed that mere criticism of Colonial authorities was tantamount to a seditious intent.7 1 Herbert Ganado, Rajt Malta Tinbidel, Vol.II (Interprint Malta 1977) 213. 2 Ibid 201. 3 Max Farrugia, L-Internament u l-Eżilju Matul l-Aħħar Gwerra (PIN Malta 2007) 3. 4 Reno Borg, Malta u l-Faxxiżmu (SKS Malta 1991) 107. 5 Carmel J. Farrugia, Polluted Politics: Background to the Deportation of Maltese Nationals in 1942 (Midsea 1995) 23-24. 6 Ibid 16. 7 Carmel J. Farrugia, Polluted Politics: Background to the Deportation of Maltese Nationals in 1942 (Midsea 1995) 25.
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Whilst pleas of ‘Constitution worthy of such a name’ by the politically vociferous in 1938 were ‘indecorously’8 requited with the MacDonald Constitution of 1939, the major proponent, Mizzi, had already been courtmartialled in 1918 for seditious articles published in Italy9 in 1940, interned for his ‘hostile origin and association’, and in 1946 having been accused of fascist subsidisation10. The assimilation of Mizzi’s unflinching apology of Malta’s ‘italianità’ with incriminating fascism was an ace in the hole of Strickland’s followers11 who succeeded, through the incitement of the press12, in blacklisting the Maltese as ‘Quislings’ and ‘traitors13’ to the knowledge of Security Officer Colonel Ede, as the fire of invasion continued to fuel opportune Colonial actions.14 Three days following Strickland’s decisive proclamation in the Council of Government on the 7th of May 1940, fifty-four internees were informed of their arrest by virtue of Section 18(1c) of the Malta Defence Regulations of 1939 between the 11th and 31st May 194015. Two years later, on the 31st of January 1942, Enrico Mizzi and other forty-eight Maltese from St. Agatha internment camp were officially informed by the Governor of their immediate deportation as a justification of the public safety and defence of Malta. With no formal accusation hinging on their forced exile and denied of their right to institute judicial proceedings, the hostile climate had been spurred by the fear-mongering of the press and the island’s defencelessness: all these did not bode well for the observance of the Rule of Law and speediness of justice. This was evidenced by the Court of Appeal’s pronouncement on the inoperability of the Deportation Ordinance No.1 of 1942, which proved to be futile as repatriation was delayed until the 8th of March 1945.16 8 Ibid 26 9 Austin Sammut, The Court Martial Of Enrico Mizzi, 1917 (Midsea Books 2005) 59. 10 Joseph M Pirotta, Enrico Mizzi’s Political Integrity: Fact or Fiction?, (Malta Historical Society 1986) Enrico Mizzi’s Political Integrity: Fact or Fiction 93-94. 11 Ibid 96. 12 Ray Bondin, Deportation, 1942: The Internment and Deportation of Maltese Nationalists (Rama Publications 1980) 28-34. 13 Carmel J. Farrugia, Polluted Politics: Background to the Deportation of Maltese Nationals in 1942 (Midsea 1995) 65: ‘On 22 May the editor of The Times of Malta instigated the Special constabulary to: ‘organize themselves quietly and without fuss into anti-Quisling specials... and help to wipe out those who by their subversive activities are traitorously helping the enemy to strike at our homes.’ 14 Ibid 26. 15 Ibid (n 12) 40. 16 Ibid (n 10) 92.
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1.2 Colonial Ratio decidendi challenged by the principle of legality Sir Ugo Mifsud’s address to the Council of Government on the 9th February 1942 chiefly encapsulates the essence of the principle of legality, no punishment without crime – directed towards the British pursuance of Ordinance No.1 which advocated deportation of Maltese nationals. The memoirs of the deportees attempt to unofficially surmise the ratio decidendi of the British in interning a person as per 18(1c) of the Malta Defence Regulations, 1939 for ‘the public safety and defence or in view of [his] hostile origin or association’ and deporting insofar ‘[his] continued detention in Malta [was] inexpedient.’ Constitutionally, the internment of prominent figures and divestment from high tenure, as seen in the case of Chief Justice Sir Arturo Mercieca, was not legally permissible unless proof of judicial misconduct was presented based on the principle of ‘quamdiu se bene gesserint’17, a criterion which was inadequately qualified by the accusation of ‘pro-Italian sympathies18’. While the British government acted in ‘a spirit of self-preservation’ ‘to remove not as penalty but for safety’,19 the ‘good reasons’ divulged by Sir Harry Luke were never judicially intimated to the internees in a statutorily clear manner other than in axioms product of a common expediency rhetoric. The internees’ petition on February 1942 emphasising that the Malta Defence Regulations had never contemplated deportation but only internal internment ‘in such place...as the Governor may, from time to time determine’ was met with disapproval as he is was ‘unable to vary his decision’.20 Internally, Malta had witnessed a constitutional regression throughout the climatic phase of the 1930s. Concurrent legislation by Order in Council, had bestowed upon the Governor the new reserved power of unfettered discretion in validating any motion as if it were passed by the Council if held expedient in the interests of public order21, thereby restraining the liberties of a given sector in Maltese society. The ultimate victory against the principal foe can arguably be remembered in history as a pyrrhic one for Great Britain, 17 Translation of Security of Tenure principle: ‘As long as he shall behave himself well’. 18 Arturo Mercieca, Le Mie Vicende. Note Autobiografiche. (1st edn, Tip Lux Press 1984) 306. 19 Carmel J. Farrugia, Polluted Politics: Background to the Deportation of Maltese Nationals in 1942 (Midsea 1995) (n 5) 74. 20 Bondin (n 12) 83. 21 J. J Cremona, The Maltese Constitution And Constitutional History Since 1813 (Publishers Enterprises Group 1997). 39-41.
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for the Island Fortress had succeeded in remaining impregnable but inside its own walls, the fortitude of the principles crystallised in the 1802 Declaration of Rights were shackled.34 On line of principle, if the sanctity of such principles permeating from binding instruments is to be shrouded absolutely, then it should follow that such ‘absoluteness’22 of rights cannot fall secondary to the expeditious measures of the maintenance of safety and good order, without fulfilling due requirements consonant with the declared rules authoritatively laid down by the Courts of Justice.23 Sir Anthony Mamo gives a learned elucidation on the principle of legality and limitations by territory; both of which relate to the question so far discussed. To wit, ‘no act or omission can be considered as a criminal offence unless it has been so declared by the law of the State and no punishment can be inflicted which is not prescribed by the law’24, reiterated by Sir Ugo Mifsud25 as well as Cesare Beccaria’s assertion that ‘the place of punishment should be the place of the commission of the offence and no other’.26 An understanding of Sir William Blackstone’s analysis in his ‘Commentaries on the Laws of England’ puts the British government in Malta’s policy into perspective. ‘To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient’.27 Recourse to the ‘bulwark’ of human liberties, the Habeas Corpus Act, is 22 William Blackstone, Wilfrid Prest and Ruth Paley, Commentaries On The Laws Of England (Oxford University Press 2016). 130-135: ‘the personal liberty of individuals... without imprisonment or restraint, unless by due course of law…to refuse or delay to bail any person bailable, is an offence against the liberty of the subject by the common law; as well as by statute and the habeas corpus act.’ 23 Sir Anthony Mamo, Mamo Notes on Criminal Law (GħSL) 18. 24 Ibid. 25 Debates of the Council of Government, 9th February 1942: ‘deportation is a very grave penalty, and it means, therefore, the consequence of a crime.’ 26 Ibid. 27 Blackstone (n 22) 135.
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therefore a litmus test determining the legality of detention, a contestation reproduced in 1942 Debate in the Maltese Council of Government. The latter does not settle the rapprochement between expediency and legality; rather it demarcates the fundamental differences rendering the task of identifying the substantive reasons for the underlined deprivation of liberty as an uphill struggle.28
2. Deportation, the legal battle and Human Rights infringed The principal thesis of the deported internees was that deportation was a punishment and there could have been no punishment without the proven existence of a committed crime, on further admission of the British that in point of fact no crime was committed nor was a charge preferred.29 Thus, internment was construed to be a preventive measure however being unequivocally challenged by the very notion of nulla poena sine crimine. Ordinance No.1 of 1942 was, notwithstanding AG Dr Lewis Galea’s argument that the Governor had the power to deport since Uganda was to be considered an enlargement to the British colonial outpost of Malta, vitiated by its ultra vires character as pronounced by the Court of Appeal in the historic judgement.30 Professor J.M. Ganado observes that the existence of a defect in law cannot be subject to presumption and an interpretation of the law, which is being therefore impugned, must exclude vitia in legal provisions. The Court of Appeal had established that the law warranting deportation, had been enacted by a non-sovereign legislature unable to legislate with extra-territorial effect31; an interpretation which restricted the remit of the Governor in solely making arrangements32: ‘The Malta Defence Regulations, besides concerning itself solely with these islands, do not give power to the authorities to exert the jurisdiction beyond territorial limits as the deportation or transfer of the plaintiffs must necessarily involve the Head of Government’.33 The internees had already been exiled to Uganda prior to 28 David D. Cole, ‘In Aid Of Removal: Due Process Limits On Immigration Detention’, SSRN Electronic Journal <http://scholarship.law.georgetown.edu/facpub/68> accessed 17 April 2017. 1099 29 Ganado (n 1) 331-333. 30 Guido Abela et vs Major Walter L Bonello et [1942] Court of Appeal (Civil), 8/42. 31 J.M. Ganado, Prolegomena Notes (GħSL) 40-41. 32 Sergio Grech, L-Avukat Herbert Ganado: Bejn Storja U Miti (Horizons 2015) 47. 33 Bondin (n 12) 88.
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the actual pronouncement of the Court, uninformed of the situation34, and the internees’ legal feat35 – although proving their point that deportation was illegal - was ‘despotically’ disregarded.36 When notice of deportation, Area Order No.40, was attached on the notice-board of St. Agatha internment camp, Rabat on 31st January 1942, Enrico Mizzi along with forty-eight other internees were officially notified of their own deportation as the Governor exercised his emergency powers for the public defence of Malta.37 This inevitably had a domino effect on the internees’ battle in Court. On the 3rd of February 1942 the internees filed a case before the First Hall of the Civil Court instituted against Major Walter L. Bonello, Commander of the Internees, and Sir Edward St John Jackson, Lieutenant-Governor of Malta, whereupon deportation was challenged. Judge Dr A.J. Montanaro Gauci opined that deportation order, although signed by the Commander who enjoyed no right of interning or deporting, was a ‘simple notice’ and therefore not ultra vires or illegal. Subsequently, the Court declared that the Governor’s rights to intern and deport – owing to their ‘enormous difference’- were not mutually inclusive, refuting ‘the argument that the action was being done in special times’.38 However, on the 9th of February 1942 the Lieutenant-Governor proposed to the Council of Government that in view of the lacune de droit of the Defence Regulations an ‘Ordinance to Empower the Removal from Malta of persons lawfully detained therein’ be advanced for the purposes of ‘defence and security’.39 Sir Ugo Mifsud staunchly opposed the Bill and delivered a ‘strong’ speech on the affront of the Emergency Powers Act (on which the Malta Defence Regulation was modelled) to the spirit of the British constitution and the ‘birth-right of every British citizen and subject’.40 Inspired by Humanitarian ethos, Sir Ugo Mifsud, whilst observing the risks of deprived legal assistance suffered by an exiled subject, made reference to the collective commitment for the defence of Human Rights.41 The seventeen Members of the Council for the Bill with the exception of Dr. Borg Olivier, voted in favour for the Bill which propelled the new case presented on the 10th of February 1942. The 34 35 36 37 38 39 40 41
Grech (n 32) 47. [1942] First Hall (Civil), 50/42. Ganado (n 1) 334. Pirotta (n 10) 93. Bondin (n 12) 91. Ibid 92. Ibid Ganado (n 1) 336.
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internees reiterated their thesis on the inoperability of the illegal deportation ordinance by making reference to George Micallef vs A. Mifsud L.P. by virtue of which the Court of Appeal affirmed that ‘it is not within the competence of the Governor thus indirectly to give validity to a law that is null and void.’ The legal saga was characterised by continuous cut and thrust with the Court conceding the Governor’s authority in using the Ordinance to effectively transfer the plaintiffs to any contemplated country ‘ad quinas’ on the one hand and the following appeal of the 12th February in which internees corroborated that such rationale contradicted the foundations of British Constitution and the individual liberty ‘consecrated by the Magna Carta’.42 The adjournment of cases protracted over the span of four months was an embodiment of procrastination of justice for those who had fought amidst the trials and tribulations of the Second World War. The 4th of May classification of the Order of Deportation under the auspices of Uganda regulations brought to an end the legal battle with the sentence of the Civil Appeals Court presided by Dr George Borg, Judges Dr A. Camilleri and Dr W. Harding on the 5th of May 1942. The Court of Appeal declared that Section 3(1) of Ordinance I of 1942 did not empower the Governor to deport British subjects from Malta but only make arrangements insofar as that such deportation occurred through expressed permission of an Imperial statute, and in such a case needed to be satisfied ‘intra vires’.43 Section 3(2) allowing extraterritoriality, was invalid and any Order of Deportation beyond the territorial limits of Malta was null and void. The Court pronounced itself emphatically on the latter, through references of deportation from America over its seas sanctioned as ‘illegal’, stressing that legislation for the upkeep of ‘peace, order and good government’ required sound discretion44. No colony, such as Uganda, could have passed legislation repugnant to British parliament and by default no colony could have extended its authority beyond its territorial waters and therefore could not materialise, through arrangements with the British Government in Malta, the deportation of the Maltese.45 Whilst the conditions of deportation in Uganda meant a blow to the human rights of the internees principally insofar as sanitary maintenance was concerned and the illegality of deportation was carried through to the 42 43 44 45
Bondin (n 12) 97. Ganado (n 1) 431. Bondin (n 12) 102. Ganado (n 43).
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end for ensuing three years46 in spite of the decision of the Court of Appeal, the ‘grand injustices destined to remain in history’ were manifested mostly in circumstances when the War had almost finished and to the dissatisfaction of the internees, another Christmas in the trenches had to be endured.47 The troubling time for Malta did not only extend to the undermined independence of its judicature48 but, more significantly, the conditions suffered by the Maltese and the repression of their fundamental rights – from parity of arms in a Court of Law to right of expeditious repatriation.
3. Inquiry into the Legal Validity of Colonial Measures, Malta Defence Regulations and Ordinance No 1 of 1942 The vocation to achieve the desired Imperial ends through ‘legal channels’49 shapes a conflict between Law and legality. Internment was not merely the exercise of the Court’s discretion; it was rather within the leverage of Security Officer Colonel Ede to proceed without a chargeable offence and legal process.50 The ‘warrant of arrest for no specific reason’51, as described by internee Herbert Ganado, emanated from Governor’s power delegated to the Police Commissioner – which authority was ‘in virtue of Section 18(1c) of the Malta Defence Regulations of 1939’ preventively52 pursued for the ‘public safety and defence of the islands’ without the filing of a solemn indictment. Legal advices were the juridical medium through which the Governor brought the Emergency Powers Regulation into being as invoked in the Council between 1939/40. L.A. Number 577/40 issued on the 22nd of November 1940 advanced by Lt Governor St John Jackson laid down that it was legal for the Governor to make coercive regulations for the good governance of internment camps and maintenance of the detainee’s discipline such as solitary confinement for seven days and detention at Corradino Civil Prison for twenty-eight days53, a transition repudiated by the internees as this seemed to put them 46 47 48 49 50 51 52 53
Bondin (n 44). Herbert Ganado, Rajt Malta Tinbidel, Vol III (Interprint Malta 1977) 115. Farrugia (n 3) 518. Bondin (n 12) 60. Ganado (n 1) 195. Ganado (n 1) 200. Ibid 332. Farrugia (n 3) 313.
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on a par with an indicted criminal without having been accused nor found criminally liable.54 Although the general precepts of the Habeas Corpus Act guarantee that provisional measures by the Police ought to be referred to the Judiciary within forty-eight hours, and a contrariu sensu this constitutes unlawful detention, the British Parliament, on strength of events precipitated by war, empowered Governments to intern suspected individuals without trial, charge and evidence.55 Such detention legally emanated from the Malta Defence Regulations 1939 but it was an Order in Council which circumvented the irremovability of judges quamdiu se bene gesserim in the unprecedented case of Sir Arturo Mercieca, hence enfeebling the Maltese Court without its then Chief Justice and in absence of proven misconduct appertaining to his independence subject to guarantee: a cornerstone of British liberty.56 While it was possible for the Government to intern persons in Malta through the Malta Defence Regulations, the question of its legality was not dwelt upon by the Courts.57 Deportation, contrary to the AG Dr Lewis Galeaâ&#x20AC;&#x2122;s view that it was rather transference of a British subject to another Colony (Uganda)58, has to be contextualised in the sense that the Malta Defence Regulations did not empower Governor to act beyond his conferred powers. The order of Deportation was hence declared illegal by the Court of Appeal which had overturned the previous decision of the First Hall Civil Court.59 Sir Ugo Mifsudâ&#x20AC;&#x2122;s speech is perhaps a fundamental exposition of the illegality of deportation: the English Parliament had passed the Emergency Powers Act allowing the Executive to exercise right of arrest and detention even without a trial but such a law did not authorise the right to extradite or exile British subjects. When the newly published Malta Defence Regulations containing a clause warranting deportation, were enacted in August 1939 - contemporaneously the British Parliament disapproved of, and deliberately annulled, the same clause in the Emergency Powers Act â&#x20AC;&#x201C; hence the Malta regulations had to be amended accordingly. Similarly, deportation was a serious punishment implying the commission of a crime which had never been proved against 54 55 56 57 58 59
Bondin (n 12) 46. Ganado (n 1) 201. Mercieca (n 18) 308. Farrugia (n 3) 77. Ganado (n 1) 332. Ibid 333.
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the internees nor formally charged.60 Section 3(1) of Ordinance I of 1942 never expressly contemplated deportation orders but rather ‘arrangements’ with Great Britain or any other colony subject to legitimacy of Imperial law bearing no repugnancy to parliamentary law. The Court reiterated its view that it was unable to pronounce itself on the legality on the basis of another Colony’s Defence Regulations. Ordinance I of 1942 did not bestow unto the Governor any power to deport a British subject outside the territorial waters of Malta, and any further Order of deportation under such ordinance was declared null and without effect.61 The foregoing premise gave rise to the logical conclusion that the Order delivered by the Governor on extraterritorial deportation was ultra vires;62 nevertheless, the Colonial authorities – after having hastily green-lighted deportation despite the active consideration of the Courts seised of the matter - furthered the illegality of the measures and bypassed the Court’s judgment.63
4. Capital Punishment as a Corollary to Treason and Conspiracy 4.1 The Rex v Carmelo Borg Pisani case (1942): The constitutive elements of the case: in-depth analysis of sentence The case Rex v. Carmelo Borg Pisani was decided on the 19th of November 1942. The Criminal Court had been composed under the 1939 Malta Defence Regulations, more precisely according to Article 70(4)64: the “Criminal Court shall be composed of three judges and shall sit without a jury”, a requirement brought about by the enactment of Government Notice 471 of 1940.65 Borg Pisani, the young art student who had resided in Italy prior to the outbreak of the war, had made a public will on the newspaper of Malta in which he relinquished his participative arbitrium to the failed espionage mission on his home country in aid of Fascist Italy.66 In the Bill of Indictment, Borg Pisani was 60 61 62 63 64 65 66
Farrugia (n 3) 78-79. Ganado (n 1) 431. Mercieca (n 18) 348. Farrugia (n 3) 82. Laurence Mizzi, Għall-Ħolma Ta’ Ħajtu (Bugelli 1983) 86. Mizzi, Mixlija b’Konġura u Tradiment (PEG 1996) 212. Ganado (n 47) 19.
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charged with the commission of a crime against the security of the British government, perpetrated in a country contrary to his own nationality, in which he partook in seditious conspiracy (konġura) aimed at subverting the Royal Government in Malta and the King himself while aiding and abetting the declared Enemy of Britain through travaux préparatoires ‘in furtherance of a common design’.67 Seditious conspiracy, as contemplated by the Court, entailed the adherence of ‘those British subjects to the Comitato d’Azione Maltese87, hence the consummation of the offence of conspiracy in the sense intended by law’. The Court furthermore rejected Borg Pisani’s line of defence: ‘if a conspiracy is formed, and a person joins it afterwards, he is equally guilty with the original conspirators.’ This did not exonerate him from the criminal liability sanctioned by Article 56 of the Criminal Code. The charges ascribed to Borg Pisani were therefore three-fold; firstly, that the Maltese-born British subject undermined the security of, and subverted, the Government of His Majesty the King through preparatory acts amounting to seditious conspiracy; secondly, that he directly conspired and took up arms with a foreign power against the Royal Government and thirdly, ‘with intent to help the enemy [attempted] to conspire with any other person to do, any act which [was] designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty’s forces or to endanger life’. The constitutive element of the crime of seditious conspiracy lies in the ‘agreement of two or more persons to do any unlawful act or to do a lawful act by unlawful means’,68 encapsulated in Article 58 of the Maltese Criminal Code, and the offence is complete though no further act is done in pursuance of the agreement, therefore there must be (i) the act of agreement (ii) the persons agreeing (iii) the purpose agreed upon.69 The raison d’être of the Committee was that of assisting the Italian government to subvert the British colonial administration of Malta and hence invade the islands as read in light of Article 57 of the Code. Although Borg Pisani denied active participation with the Committee’s manifestations, the ‘common design’ unifies the marginalised with the agent participants of the conspiracy as explained in Rex v. Blake and Rex v. Shellard.70 On such grounds, the publications in the newspapers, radio transmissions and Committee exhibition were all referable to the accused as they had been collusively 67 68 69 70
Mizzi (n 65) 212-214. Mizzi (n 65) 163. Mamo, Mamo Notes on Criminal Law Vol II (GħSL) 19. Mizzi (n 65) 164.
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made ‘in furtherance of a common design’. Borg Pisani self-defensively owed his religious adherence to the cause of Fascist Italy in personal necessity, yet ‘an act which amounts to an offence cannot be justified by mere personal necessity’. Demonstratively, not only did he declare his readiness to enrol in the Armed Forces, but effectively he became an Italian soldier. As argued by Halsbury in his Laws of England, ‘A British subject adheres to the King’s enemies if...he makes a declaration of willingness to take up arms on their behalf’.71 Thus, enmity is a criterion defined by public belligerency.72 The charges of ‘overt-acts of treason’ were cumulatively enlisted in his enrolment in the San Marco Italian regiment and the continuing service till September 1941: the period which marked Italy’s hostility with Britain, and in the great scheme of things this ultimately had a bearing despite Borg Pisani’s non-combative character of a soldier in the reparto artisti. The scope of the Axis armed forces was precisely that of subverting British governments in their colonial possessions and therefore, the mere act of participation in the regiment, even in non-combatant sectors, amounted to an attempt of subversion. An inference of the intent to facilitate the naval, military or air operations of the enemy and thus undermining those of His Majesty was drawn on the night between the 17th and 18th of May 1942 whereby the accused, duly ranked as Second-Lieutenant departed from Sicily on a high– speed motorboat with Lt Ungarelli to a remote area of Ras id-Dawwara cliff on a mission to leak strategic information to the enemy through radiotelegraphy with all the perils such mission carried with it73. Borg Pisani’s explanation of his sudden disinterest in the mission as soon as he reached Malta was weak since the execution of his mission had been interrupted by force majeure of strong seas on the third day. Borg Pisani’s line of defence was based on the presumption that the existence of extenuating circumstances which might have desisted him from completing the crime. The Criminal Court reasoned that there are different canons of interpretation in evaluating the outcome to a voluntarily abandoned on the one hand and an impeded crime due to the verification of fortuitous events on the other. His Majesty’s Criminal Court convicted the artist-soldier of the aforesubstantiated charges on the sole exclusion of taking up arms with a foreign power against the Imperial government resting its case on the provisions of Articles 56(1)(3), 57(1) & (2), 5(3) of the Criminal Code and Article 27 of 71 72 73
ibid 166. Mamo (n 69) 10. Mizzi (n 64) 170.
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the amended Malta Defence Regulations of 1939. Borg Pisani had been sentenced to death for the first – and only recorded instance in Maltese criminal history in the ambit of high treason.74
4.2 The Lord Haw-Haw case: a comparative study The fait accompli of the Borg Pisani affair falls into parallelism with the trial of William Joyce,75 an American born radio broadcaster and holder of a British passport who, merely a fortnight after Britain and France’s joint declaration of war on Germany, entered the German Broadcasting Service with the purpose of disseminating propaganda on radio programmes, hence aiding Nazi Germany in its psychological war against Britain.76 Caught in flagrante in the borders of Denmark, Joyce was brought to Britain, charged with High Treason (contrary to the Treason Act, 1351) ‘in that he, being a person owing allegiance to His Majesty the King, adhered to the King’s enemies elsewhere than in the King’s realm’, this while enjoying the privileges and immunities curtailed by a counterfeit British passport which had expired on his last broadcasting service dated 2nd July 1940.77 The brevity of his absence from the realm was no excuse as ‘aid and comfort to the King’s enemies outside’ ‘by purporting to become naturalised as a subject of Germany’78 amounted to a treasonable act. The defining principle revolved around whether possession of a British passport by a non-British subject ipso facto imposing Sovereign obligations, and receipt thereof, translated to effective extension of his allegiance when he was no longer in Britain but at the helm of the enemy’s Propaganda: hence Joyce’s defensive argumentation of his status of alien. Yet the Court opined that the argument of the cessation of a duty of allegiance outside the confines of the protection of law held no water. Jurisdictionally, the crime of treason could have been indistinctively committed both within and without the realm. An ‘alien’, through retention of a passport, was amenable to trial in Britain for crimes committed overseas and therefore a British subject is obliged by his general duty of allegiance regardless of the existence of a passport.79 Notwithstanding the proceedings instituted by Court of Criminal 74 75 76 77 78 79
ibid 172. R. v. William Joyce, 1945 2 All ER 673. Mizzi (n 64) 137. John W. Hall, Trial Of William Joyce (W Hodge & Co 1946). 18. ibid 45. ibid 32-234.
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Appeal80, the Criminal Court reaffirmed its foregoing position in its patois: ‘If such alien, seeking the protection of the Crown, and having a family and effects here, should during a war with his native country, go thither, and there adhere to the King’s enemies for purposes of hostility, he might be deal with as a traitor. For he came and settled here under the protection of the Crown; and though his person was removed for a time, his effects and family continued still under the same protection’.81 On a comparative note, Borg Pisani – a British subject - had availed himself of the protection granted by British passport to prove his renunciation of his ties with Great Britain and similarly of his British citizenship.82 Borg Pisani openly disdained his status of a British subject yet legally this could not amount to a renunciation of his British subjection. Author Lawrence Mizzi postulates that a distinction of ‘moral’ and ‘technical’ subjection could have spared the death penalty to Borg Pisani; indeed a distinction raised by the AG Sir Hartley Shawcross in the Baillie Stuart case whereby ‘technically he was still a British citizen in 1939 whereupon he worked in cahoots with Germany during enmity with Britain but morally he was no longer a British subject since 1938’83 revealed the difficulties of trying the accused on grounds of ‘High Treason’.
4.3 Major differences between combatant and non-combatant sedition arising from the Conspiracy Trials 1946-1947 in juxtaposition with the Borg Pisani affair Linked with the trial of Borg Pisani, are the Conspiracy Trials held between 1946 and 1947 dealing with seventeen pro-Italian Maltese who decided to remain in Italy throughout the war for varying reasons just like Borg Pisani. A telling number of the accused militated in the Comitato d’Azione Maltese, and – owing to its seditious implications – the seventeen ended up accused of treason; the very same ratio legis of the two out of three charges levelled 80 81 82 83
Joyce v D.P.P. [1946] A.C.347. Hall (n 77) 250. Mizzi (n 64) 53. ibid 141.
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against Borg Pisani.84 The seventeen came from every walk of life and accusations varied from enrolment in Italian army without taking up arms to other accusations involving combatants who notwithstanding their ranking of Second Lieutenants in the overseas 1941 Siege of Tubruk against the British had no intention to ‘fight against [their] compatriots’.85 On paper, the acts done by Ivo Leone Ganado were manifestly graver in comparison to Borg Pisani’s ‘passive contribution’ within the Armed Forces of Mussolini without taking up arms. The seventeen accused –facilitated by return to normal times and change in the Court’s introspection - were acquitted of the same substantial imputations levelled against Borg Pisani on strength of a unanimous verdict.86 Notwithstanding the commonality of the constitutive factors, viz. whereas Borg Pisani was caught in flagrante at the height of the Second World War, receiving no sympathy from Maltese society as a whole and adjudicated both secretly and speedily with three judges intent in satisfying the dispositions of the Law87 a contrariu sensu, the seventeen availed themselves of repatriation at the epilogue of war, with normalisation of relations between Britain and Italy and with a nation back on its feet after half a decade of national hardship. Herbert Ganado admits that the trial by jury was an effective instrument introduced by the British to resolve those juridical conundrums springing from the significant cases of disloyalty against the British Crown in Malta’s 150 years of history88. Significantly, he observed in his autobiography: ‘Legally, the accused were guilty because the facts had been proven. However, the Maltese sentiment began to conceive mostly the human elements of the case. The jurors, who are none other than common people of the country just as the accused, out of a non-legalistic mentality […] decided not to find them guilty. In the likelihood of trials being presided over by judges only, the accused would have been convicted since legally; there was the presence of a crime89’ The first trial of the years 1946-1947 was indicative of the strong position held by the Prosecution in conflict with the Defence in an atmosphere 84 85 86 87 88 89
ibid 124. ibid. ibid 125. ibid. ibid. Ganado (47) 241.
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characterised by ‘tension’, as recalled by Albert Ganado, and knowledge of the fact that the death penalty was at stake for doctor Albert Xerri De Caro and priest Paolo Ignazio Chetcuti, accused in solidum90 for their adherence to the Comitato, an entity which specifically required the consignment of British passports and participation in seditious conspiracy. Xerri de Caro had been also accused of writing a propagandistic article in support of the enemy ‘and within his realm’ and on such basis the AG advocated the death penalty under the tenor of Article 56(1)(c) and 5(c) of the Criminal Code. ‘Against the two accused there lies a serious imputation of attempt to subvert the Government, a crime known as alto tradimento or high treason’.91 Xerri de Caro, having enrolled in the Armed Forces of Italy as a doctor, could not contend his line of defence as the Prosecution opined ‘regardless of his quality, combatant or non-combatant, there is always a crime’. Nonetheless, Defence Counsel Flores availed himself of Article 56 (i.e. aiding the enemy and attempt to subvert) arguing there was sufficient proof of the fact that the accused had never been charged of aiding a foreign power as his mission was that of a doctor in Soriano del Cimino. Similarly, the consignment of passports and culpable adherence to the Committee had to be construed in the context of voluntariness or coercion, whether attained morally or violently; as further exercise of judgment by the Jury. Both Xerri de Caro and Chetcuti were cleared of the charges and released.92 Perhaps the case of Leone Ganado,93 owing to the juridical similitude with the Borg Pisani incident and the difficulty in reaching judgment as well as the benefits propounded by British liberalisation giving rise to institute of the trial by Jury, merits a closer look. The charges were a verbatim rerepresentation of the foregoing sentences, chiefly symbolised by R. v. Borg Pisani judgment. His allegedly active belligerent participation as a volunteer in a Fascist militia and as a soldier who served in the invasion of Cephalonia on May 1941 first and at ‘the important navy base of Italy’ La Spezia then with subsequent apprehension of courses helping him climb the ranks as a sotto capo manipolo in the battery of Venice. On September 1942, the accused ventured to Northern Africa and took up arms against the garrisons of His Majesty the King in the campaign of Tobruk, whereby he intercepted radio and telephonic communication concerning the 8th army and translated them in Italian. He was also accused of having assumed fictitious names such as 90 91 92 93
R. v. Xerri de Caro, Chetcuti [1946] H.M. Criminal Court. Mizzi (n 65) 29. ibid 53-55. R. v. Ganado, Cortis, Vassallo, Gonzi [1947] H.M. Criminal Court.
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Leonardo Gallardo during his years of service in the Italian army. Prima facie, the accusations were serious yet the principles of Art. 27 of the Malta Defence Regulations accentuating intention to help had to be a point in favour of the seventeen who had not been in Malta when Regulations were issued. Defence advocate Dr Magri had underlined Ganado’s intention to specifically serve in the battalions of Russia to avoid committing ‘treason against his own people’ and his enrolment was not an exercise of his discretion but on fear of execution by shooting; and therefore, he was obliged to respect a superior order. Leone Ganado, like his other ten compatriots, was found not guilty of the charges.94 The Prosecution in all cases advocated the death penalty much to the dismay of the general Maltese sentiment. At the dawn of the first verdict which absolved the seventeen, a Labour Party newspaper editorial lauded ‘the dignity and sobriety of the Courts…our jurymen were completely free and unfettered in coming to their decision by any possible reaction from the people one way or the other.’ Their release in a modicum time was a stark contrast to the affairs of the interned Maltese who had been exiled to Africa for five years without charge and trial;95 an important transition in the evolution of Imperial deterrents.
5. Effectiveness of imperial philosophicalperspective
deterrents:
a
juridico-
5.1 Carmelo Borg Pisani, a British subject and the death penalty: the right deterrent? Prior to the outbreak of the war, Borg Pisani sent a letter to the American Embassy in which he renounced British subjection and ties with the Crown through the previously possessed passport, thereby modifying his status of nationality.96 The incomparable nature of the two cases lies in the fact that William Joyce usurped a fraudulently acquired British passport which authenticated his right to protection and travel to the Enemy’s realm with the sole scope of ‘naturalisation as a German subject’.97. The only treason trial in Maltese history was a defining moment for the independence of the Maltese 94 95 96 97
Mizzi (n 64) 206-208. Mizzi (n 65) 21. Mizzi (n 64) 53. Hall (n 77) 25-45.
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judicature in spite of the conflicting political inclinations.98 The Maltese Criminal Court seised of the Borg Pisani affair had been composed of three Maltese Chief Justices: Borg, Ganado and Harding - the possibility of a lighter penalty other than the death penalty was close to null. On the other hand, the presence of nine jurors in the Conspiracy Trials was a determining factor. The amended 1939-40 Ordinances specifically decreed the death penalty in cases of seditious conspiracy leaving the accused with few legal leeway. Detractors of an immediate trial argue that the case of Borg Pisani, a prisoner of war, should have been dealt after the war as the Maltese judiciary was obliged to judge from a purely legal viewpoint suspending interpretation of ‘legal’ versus ‘moral’ treason test, a ratio decidendi applied in the Baillie Stuart UK case. The Court had abstained from sentencing the 1947 conspirators to death although provisionally required to examine it in light of the same causa of Borg Pisani’s decision.99 Legally, there was no other effective deterrent than the death penalty for Borg Pisani albeit his case continues to attract controversy as morally he bore no allegiance to the British Crown given that he confided to the American Embassy and cooperated with the Imperial authorities upon capture.100
5.2 Internment and deportation without formal accusation and trial: Imperial expediency as the malaise of human rights in a ‘fortress’ Colony We are told that when laws no longer conform to justice and human rights, their own legitimacy is dissipated. Law should not only be subordinate to the whims of the State but in concordance with an embodiment of natural law in human rights which is not an exclusive emanation of the State, and therefore surpassing the positive law of the State, and binding the latter in recognition.101 Although human rights was a fledgling, if not a totally extraneous concept at the height of the Second World, the actions of the British in Malta would be, prospectively voided by the overarching observance to Human Rights 98 Anthony Zarb Dimech, ‘The Maltese Judiciary In Wartime Malta’, The Malta Independent (2010) <http://www.independent.com.mt/articles/2010-03-27/news/the-maltese-judiciary-during-wartime-malta 272293/> accessed 20 August 2019. 99 Mizzi (n 65) 215. 100 Mizzi (n 64) 141. 101 David Attard, The Maltese Legal System Volume One (Malta University Press 2013) 14.
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in the ECHR, particularly Articles 5 and 6 of the Charter. By what token of the Rule of Law did the British pursue their Colonial policy when two fundamental freedoms were repressed? The question must be linked with a speech delivered by then Governor Sir Thomas Maitland on January 2nd, 1815: ‘British rule is of course equally binding upon all; I am limited and restrained in my authority, the judges are limited and restrained in theirs; the law of the land is the only fixed and invariable point to which they are to look. The King’s intention is [...]to introduce such ameliorations in the proceedings of the Courts of Law as would secure to everyone the certainty of speedy and effective justice and to make such improvements in the laws themselves as past experiences or change of circumstances which might render necessary or advisable.’ Fundamentally, while the executive realm ‘ought to be prevented from undue interference with judicial proceedings’,102 the sole Rule of Law was being expediently taken into the British’s own hands, in name of public defence of the ‘fortress colony’, with the enactment of Defence Regulations hindering the fundamental human rights of the internees.103 Internationally, the relationship between the British Empire and human rights had been prejudiced by a federalist approach in minimising the ‘rights’ rhetoric which possibly could have ‘licensed’ sedition within the Empire.104 In an attempt to ensure the attainment of justice, a Dworkinian model of integrity can be contemplated in settling the rights of citizens and the judge’s decision ‘constrained by the political history of his community’ based on the principles of justice and fairness.105 In wartime Malta, the Courts had pronounced themselves clearly on the insufficiency of ‘special times’ as an excuse and that the Order of deportation was invalid and without effect as no British subject could have been deported outside the territorial limits of Malta. But the court sentence was conveniently set aside and, outside Maltese shores fundamental human rights continued to be infringed also on a national scale; as PN supporters were arbitrarily barred from being employed with government following 102 Ganado (n 31) 18-19. 103 Farrugia (n 5) 83. 104 Kevin Grant, The British Empire, International Government, And Human Rights (2013)11HistoryCompass<http://onlinelibrary.wiley.com.ejournals.um.edu.mt/doi/10.11 11/ hic3.12069/full> accessed 20 April 2017. 105 T. R. S. Allan, Dworkin and Dicey: The Rule of Law as Integrity’ (1988) 8 Oxford Journal of Legal Studies. 266.
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a departmental prohibition on 7th December 1942.106 The internment and subsequent deportation of Maltese were merely precautionary measures but their effects impinged on a wide range of fundamental rights such as right to a fair trial and no crime without punishment, right not to be deported as protected by the Habeas Corpus Act, right of an adequate defence in Court and also right to work without suffering political discrimination. Verily, ‘a black blot which will always remain in British colonial history’.107
6. Deontological assessment of the death penalty in Malta. 6.1 Influence of Beccaria rooted in Maltese juridical forma mentis When the Maltese Grand Master De Rohan nominated Neapolitan jurist Giandonato Rogadeo to reform Malta’s laws in spirit of Catholic enlightenment, thirteen years had passed from the publication of Cesare Beccaria’s Dei Delitti e Delle Pene. In 1777, Rogadeo – being a strong proponent of capital punishment - attacked Beccaria’s work for its ‘highly pernicious’ content meriting an outright ban.108 He defended capital punishment as the efficient instrument of curbing the delinquent tendencies: ‘There is no cultured nation whose code of laws does not recognize the death penalty as the most suitable punishment for particularly atrocious crimes.’109 ‘The Romans’ opportune use of this deterrent illustrated their learnedness and the title ‘barbarous’ conjured by the downfall of the empire was not due to enforcement of death penalty but owing to their little knowledge of their own law, hence a parallelism displaying its necessity and proving wrong those who think themselves as lovers of humanity and advocate its abolition’.110 As an antithesis to Beccaria, Rogadeo slams pardoning as ‘abusive’ and claims the amendment of unjust laws should not deprive them of their rigour as a guarantor to public security. Used sparingly, the death penalty would serve as a deterrent to society while judges had to inform the Supremo 106 107 108 109 110 427
Farrugia (n 3) 734. ‘Patria’ [Maltese newspaper] 21 December 1950. Frans Ciappara, Enlightenment And Reform In Malta (Midsea Books 2006) 64. ibid 66. Giandonato Rogadeo, Ragionamenti del Cavaliere Giandonato Rogadeo (Lucca 1780)
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Magistrato di Giustizia before enforcing sentences.111 Rogadeo’s vexations were indicative of the how Beccaria’s influence had seeped into Maltese juridical thought as propounded by the Vitruvian currents of eighteenth century enlightenment.112 In 1844, Scotsman Andrew Jameson was commissioned to revise the Draft Criminal Code of Malta.113 The British authorities were reluctant in forgoing the death penalty, in view of the Maltese judicial endorsement of Beccaria’s proportionality and efficacy of punishment principles, hence Jameson’s approach towards ‘the tacit abolition of capital punishment’114 in his Report on the Proposed Code.115 Although Jameson is adamant with abandoning the death penalty, the influence of Beccaria is acknowledged by his syntax and continuous references to his philosophy, pointing out the inconsistency ‘which can display a sentimental sympathy with those who forfeit life, but can feel no compunction for the lingering death of perpetual imprisonment or the withering spectacle of mind and body destroyed by long confinement’ dwelling upon the object of punishment and certainty preferable to severity doctrines. Beccaria’s principles could not jump the hurdles set by British government yet: ‘The reason given by the learned Commissioners in their first report for retaining capital punishment, as being in conformity with the principles and rules of other continental codes is unsatisfactory. The true reason is the necessity of the punishment. Perpetual imprisonment offers too many chances of escape or mitigation of its terrors. It is too remote. Its real severity cannot be apprehended by passion… those who from a mistaken and false humanity argue for its abolition, overlook the numerous cases of atrocious crime which are prevented by the dread of it. By new code it is properly retained for only the highest crimes: wilful homicide, high treason etc.’
111 Ciappara (n 108) 66. 112 Matthias Ebejer, A Penultimate Crisis: The Order Of St. John, Malta And The French Revolution (Hons. History dissertation, University of Malta 2012) 38. 113 Douglas Gourlay, Andrew Jameson and the Origins of the Criminal Code of Malta (Melita Historica, Vol. XV, no. 2 2009) 109-134. 114 Mark A Sammut, The History of the Criminal Code: British vs. Natives, again. <http://mhs.eu.pn/mh4/201208.html> (accessed 20/08/2019). 115 Andrew Jameson, Report on the Proposed Code of Criminal Law for the Island of Malta and its Dependencies, Malta: Government Press 1844.
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6.2 First glimmers of ideological opposition against capital punishment: 1860-1938 The question of capital punishment first met its formal opposition in 1850 by Sir Adriano Dingli and Monsignor Leopoldo Fiteni,116 and in 1909 by Sir Arturo Mercieca.117 Dingli’s proposed amendment to abolish death penalty was, however, rejected in view of the binding customary practice of the penalty widely applied in the British Empire.118 Thus, Malta could be no exception to the rule. Its first limb regarding the publicity evoking terror rather than setting example was however attacked on the basis of the retrograde and atrocious process not ‘in conformity with the dignity of the human person’ as the Church’s Catechism played its own part.119 Pressure to implement penal reform throughout the first decades of British administration coupled with an increasing compassion towards convicts, marking society’s introspection towards delinquents, brought about the abolition of public punishment.120 Dr. Pullicino’s motion in the Council of Government convened on 22nd January 1869 to abolish public executions seconded by Dr. Torreggiani and Dr. Sciortino reveals important aspects. Public executions had ‘a diametrically opposed effect to what the law implied by punishing the guilty not through its publicity but the certainty of punishment in which there lies the whole efficacy of the penal framework.’ As observed by Dr. Pullicino, ‘the public nature of capital executions was no longer compatible with the mildness of the customs of modern society’.121 The 1909 Council of Government debate is also symbolic of Malta’s desire to keep abreast with times challenged by the prerogatives of the Colonial government. Sir Arturo Mercieca unsuccessfully pleaded a limitation of the capital punishment to the most serious crimes,122 at a time when the death penalty lacked the essential element of proportionality while Salvatore Cachia Zammit, aware that Malta was subservient to Britain, appealed for a ‘cautious’ infliction of this punishment as ‘Christian justice is corrective not 116 Sammut (114) 135. 117 Albert Borg Olivier de Puget, Historical and Sociological Aspects of Capital Punishment (LL.D Thesis, University of Malta 1958). 91. 118 Marie-Josette Farrugia, The humanisation of the criminal code: the death penalty: 18541971. (LL.D. Thesis, University of Malta 2013). 28. 119 ibid 54-57. 120 ibid 58. 121 Debates of The Council of Government, 22nd January 1869, 10- 20. 122 Farrugia (n 118) 65.
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vindictive’.123 Significant was Mr Azzopardi’s view favouring total abolition of the death penalty not being ‘the most efficient form of punishment’ replaceable by forced labour. On December 1938, following the Gozitan Trial of Wenzu Grech, a debate led by his defence lawyer Carmelo Mifsud Bonnici questioning the abolition of capital punishment was organised by the Literary and Debating Society in Bormla.124 This evidenced the change in public sentiment in spite of its continued enforcement for the next thirty years.125
6.3 The legal ‘death’ of the death penalty: Act XXI of 1971 as the gamechanger of Article 55 Criminal Code Parliamentary opinion had still been typified by the division of the 1970 concerning the problem of capital punishment in Malta which was about to be heralded as Republic. The jury system, hailed as one of the crowning British juridical inventions ever, was still being disputed in Maltese Parliament on the grounds that in the case of murder, judges need not apply capital punishment upon return of a majority verdict.126 New members in Parliament, such as Dr Guido De Marco, strongly advocated abolition of capital punishment and condemned it with the ‘same vigour as abortion as the right to life [had] to be cherished’127 but it was still conceived of as a deterrent in 1966.128 In September 1971, the Labour government accepted an Opposition motion to amend and abolish the death penalty, in spite of Dr Buttigieg’s insistence. This was in light of ‘fewer executions’ contemplated by the 1968 Resolution 23 of the United Nations, which was to be retained in cases of crimes against the State ‘as the nation did not have the luxury to welcome 123 Debates of The Council of Government, 15th April 1909, 1035- 1104. 124 ‘Malta Daily Chronicle’ (Maltese newspaper) 17th December 1938. 125 Farrugia (n 118) 66. 126 Ganado (n 31) 20. 127 Department of Information Malta, ‘ADDRESS BY H.E. PROF. GUIDO DE MARCO, PRESIDENT OF MALTA, ON THE OCCASION OF THE CONFERMENT BY THE UNIVERSITY OF MALTA OF THE DEGREE OF DOCTOR OF LITERATURE HONORIS CAUSA ON H.E. THE PRESIDENT OF MALTA’ (2001) <http://www.doi-archived.gov.mt/EN/press_releases/2001/03/pr0358.asp> accessed 20 August 2019. 128 Guido De Marco, The Politics Of Persuasion (Allied Publications Limited 2007).
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such change’,129 a claim lambasted by Dr. Ugo Mifsud Bonnici.130 The House, resolving itself into Committee, issued amendments which annulled Clause Two: ‘Whosoever, for political reasons, shall take away the life of the Governor General, the Prime Minister, any Minister or other Member of Parliament shall, on conviction, be liable to the punishment of death’; substituted ‘death penalty’ with ‘life imprisonment with hard labour’ in Clause Three on insurrections; and sub-clause (c) now contained the premise ‘aiding the enemies of the State of Malta in any other manner whatsoever against the State of Malta’.131 Prime Minister Mintoff thus declaredly accepted t h e amendment suggested by the Opposition to abolish death penalty ‘for murder’ ‘without exception’. The promulgation of Act XXI on 4th October 1971 officially abolished capital punishment from the Criminal Code except in offences committed by the Armed Forces of Malta and traitorous aid toward the enemy during wartime. It was only in May 2002 that Malta’s ratification of Protocol No. 13 of the ECHR on the abolition of Death Penalty in all circumstances132 completely drew the red curtain for capital punishment in Malta,133 leaving us with the present rendering of Article 55 of the Criminal Code: ‘Whosoever shall take away the life or the liberty of the President of Malta, or shall endanger his life by bodily harm, shall, on conviction, be liable to the punishment of imprisonment for life.’
129 Farrugia (n 118) 99. 130 Parliamentary Debate of 14th September 1971. 131 Farrugia (n 118) 103. 132 Council of Europe, Protocol 13 to the European Convention on Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances, 3 May 2002, ETS 187, <http://www.refworld.org/docid/3ddd0e4c4.html> accessed 20th August 2019. 133 Jeremy Buttigieg, Capital Punishment: Is It a Deterrent? GĦSL Law Journal 2013 <http://lawjournal.ghsl.org/viewer/49/download.pdf> accessed 20 August 2019.
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