A dilemma lies at the heart of every direct action – is breaching the law in the name of safeguarding fundamental human rights justifiable?
Well, like the answer to practically every other question, it depends on whether the circumstances call for it. But first, a preamble.
In 1928, associate justice on the United States’ Supreme Court Louis Brandeis delivered a scathing opinion about the conduct of federal government agents who had wiretapped telephone lines used by a liquor smuggling ring. While the judgement of a respected member of the judiciary from almost a century ago may seem irrelevant, its inherent wisdom makes it timeless.
Federal agents compiled hundreds of pages of incriminating conversations between the suspects. Those same agents then testified in court about the authenticity of the recordings. It seemed like an open and shut case, and in fact, it was. That is, until Mr Justice Brandeis had anything to say about it.
Brandeis argued that the prior conviction should be overturned. Defying the will of the federal government, he railed against the illegality of the wiretapping operation. The illegal invasion of the privacy of the liquor smugglers was a breach of their fundamental right “to be let alone”, as Brandeis puts it.
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”
That wasn’t even the best part.
“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”
There’s the bit that makes all the puzzle pieces fall into place: if the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
So, let’s lean on this astute judge’s discretion for a minute. For a government’s stature to be considered legitimate, its actions must be in conformity with its own laws. For its actions to be considered admissible in a court of law, they must be carried out in strict adherence to the spirit of the legislation which binds the nation.
Now let us examine the state of our own nation. Can anyone in this country say (with a straight face) that our government conforms to its own laws? No, they cannot. Can anyone in this country say that the Maltese government’s actions are carried out in strict adherence to the spirit of our country’s legislation? No, they cannot, not unless they’re an amoral lawyer who’s being paid to say something to that effect. In that case, whatever they say on the matter is a moot point, because the opinion of an expensive mouthpiece is frankly irrelevant.
A photo of prime minister Robert Abela (left) and disgraced former prime minister Joseph Muscat (right). The photo was taken in 2017 while Muscat made an appearance at a campaign rally organised by Abela. Photo: Labour Party Facebook page
If the wisdom encapsulated by Brandeis’ judgement is anything to go by, then it stands to reason that by now, after over a decade’s worth of major corruption scandals, the Maltese government is way past the stage of breeding contempt for the law. The crimes committed by officials who were supposed to lead by example brought the republic to its knees, gasping for air while the vultures privatise the oxygen supply.
It would be far more accurate to state that the government has firmly planted itself at the midway point: the bit where it invites every man to become a law unto himself.
Now, it is clear that if we follow this legal concept to its logical extremities, there is another grey area to attend to.
If a government cannot justify the means by its ends, does the same strict standard apply to a citizen whose grievances have gone unheard? In other words, is demonstrating contempt for the law in protest of an illegitimate, morally bankrupt government ethically justifiable?
We would argue that it is not only ethically justifiable – any ethical standard worth upholding would tell you that it is absolutely necessary for the survival of democracy.
A century ago, judges like Brandeis had plenty of foresight and far more legal clout to stand mighty tall in the face of overbearing governments. The power of the Supreme Court could more easily challenge any opposing entity, be it a criminal syndicate, a booming business venture, or a rogue official. Today, the checks and balances which judges like Brandeis personified have been weakened by decades of unfettered capitalism, and the fundamental human rights which people spent their entire lives fighting for have been eroded as a result.
While one rests assured that redress from a court of law is in fact still available in European democracies, the fact is that in the really corrupt ones like ours, the justice system is hardly ever in a position to dispense it. In Malta’s case, blame for the justice system’s inability to provide redress to citizens who have been wronged by the government lies solely with the government. Lack of justice and the government’s refusal to provide necessary support to the structures which are meant to hold it accountable are not separate issues – they are directly related.
If the government isn’t held accountable for wrongdoing, the very same entity that controls the fundamental tools we use to shape our society, then nobody will. It is for this very reason that this website wholeheartedly endorses actions like the ones carried out by Moviment Graffitti activists in Qala on Saturday.
To be clear, it must be said that unlike the callous contempt of the law we’ve seen from the government, we were very deliberate with what laws we were contemptuous towards. We did not injure anyone or cause any undue trouble with the police. In fact, they did not stop us from carrying out our action. Nobody was arrested. We even politely lined up outside the gate when we were done so we could give them our particulars after an inspector asked us to do so, presumably in case the owner of the site wants to file a criminal complaint.
All we did was walk onto what was once agricultural land in the beautiful town of Qala to deface an unnatural, ostentatious, and downright illegal pool that was built by a developer whose ties with the government are well-known. All you need to do to identify those ties is look at the string of outrageous planning permit approvals for every monstrosity proposed by Joseph Portelli and his business associates.
Anyone whose innate sense of justice has not been beaten out of them will understand that a government and a citizen do not have equality of arms. It is the government which bears a far greater responsibility to safeguard justice because it is the entity which was set up for that express purpose.
When the government fails to observe this great responsibility, the citizen is disproportionately wronged by the sheer difference in resources available to both parties. In Malta, our constitutional court – the laughing stock of the European human rights advocacy circuit – is not in a position to bridge that vast gap. Our police force is at the mercy of a delusional, paranoid, and dangerous police commissioner. And so, the citizen is left destitute.
This is why it cannot ever be fair to state that an activist breaching trespassing and vandalism laws must be prosecuted when those two specific crimes were committed after the government refused to act. The government failed to amend planning laws which have built-in loopholes. The government deliberately appointed compliant lackeys to key boards and tribunals which are entrusted with planning decisions. Government executives – all the way up to prime minister Robert Abela – constantly trade influence with wealthy developers.
The planning system is so broken it can basically be described as totally dysfunctional. Saturday’s action was a necessity because every single avenue of redress failed. What begins as a genuine attempt to use legal means to right a wrong must eventually morph into jaded resistance at all costs. The only way to stop resistance is to stop the aggressor. Not resisting means the aggression never ends.
Invite anarchy at your own peril.
