Times of Malta works out how much fines the Financial Intelligence Agency has raised over the last several months. It comes to an average of around €360,000 every month. The report also says there are 17 court cases filed against the FIAU by people it has fined, all making the same complaint.
The complaint is that since the fines are hefty (often in the hundreds of thousands) they amount to criminal punishment which constitutionally can only be handed down after due process. Due process means that the decision is taken by an impartial arbiter in front of whom your accuser must provide evidence and you are presumed innocent until proven otherwise.
That’s what happens if you’re caught pissing in a public place. The police charge you, a magistrate hears them, the magistrate hears your defence, and then decides whether to hand you the applicable fine of a few euro.
But it doesn’t happen when you’re found not to have kept your books in order. The equivalent of the police does not take you in front of a judge, you are not presumed innocent, they don’t have to prove your failings in an open court. They catch you and they fine you, tens of thousands of euro.
I’m all for efficient anti-money-laundering enforcement. I’m for suitable deterrents in the law. I support frequent, efficient, indiscriminate investigations and rapid action. God knows this country was a mess when anti-money laundering laws were not enforced at all and it was high time for someone to do something about it. Preferably though, something lawful.
I’m all for catching and punishing murderers. It doesn’t mean I want them to be punished by ambulant Judges Dredd who patrol the streets and execute on the spot people they decide are criminals.
I want due process for criminals not only because it’s fair and right but in the purely egoistic self-interest that comes from the fear that I might one day be falsely or wrongly accused of something and I’d want every opportunity to clear my name.
The courts have already ruled that administrative fines of this scale by the FIAU without due process in an open court are unconstitutional. They have either struck down the fines and reduced them to a small fraction of the original. There were other cases before the 17 that are ongoing that have asked the same questions of the constitutional court as these ongoing ones and the answer was that the “administrative fines” handed down by the FIAU are punitive and since they’re not handed down by a court they are unlawful.
There is no reason to believe that any one of those 17 cases asking the same questions will not get the same answers. They contest fines handed down in identical circumstances and each one, one by one, will be struck down or reduced massively.
This means that most of the €360,000 in monthly fines will never be paid. On the contrary the state will be forced to pay court and legal expenses for cases it will inevitably lose. And yet they keep at it. They keep issuing fines and make headlines knowing they are doing so unlawfully, knowing these fines will never be paid, knowing that the validity of the process will be challenged and struck down.
Instead of the fines themselves the deterrent and the punishment are in the effort the recipients of these fines are forced to make to avoid paying them. People are warned to comply with anti-money laundering rules because if not they risk having to acquire a court ruling that they’ve been handed unconstitutional fines. The method may be effective but harassment and persecution are not a legitimate method of enforcing the law, not least because there is nothing stopping the authorities from harassing or persecuting people they have no reason to believe or no ability to prove have done anything wrong.
I argue that when the government persists in breaching human rights on matters already ruled by the courts they are aggravating the fresh abuse of human rights by its repetition. The first time the courts found the government acted unlawfully they might claim there had been no guidance by the courts before. But when they pay the fine in that one case and proceed to repeat exactly the same process with others in identical situations the government shows contempt for the courts and contempt for the country’s constitution.
This doesn’t happen only with anti-MLA fines. Consider how the government has been repeatedly found in breach because of the law keeping properties away from their rightful owners on the pretext of rent laws designed for reconstruction from a war that ended 78 years ago. People in identical situations are forced to make claims in court which the government fights vigorously using arguments that have been repeatedly struck down by the courts in the past.
That is, to me, the dictionary definition of contempt. It is contemptuous of the victims of the breach of course, because they are given no comfort by the government that they can be guided by the findings of the courts in situations like theirs. It is contemptuous of the judges who have ruled already on these matters, the government plainly telling them that though their decisions about the individuals who appeal to them will be reluctantly respected, the legal principles the judges have studied and documented in order to support their decisions will be systemically ignored by the government. It is contemptuous of the constitution which expects the government to be guided by the courts’ interpretations of the laws of the land.
At first I thought of the government (and the FIAU) as Sisyphus pointlessly pushing the boulder uphill as they fine culprits, only for the gravity of the courts to tumble all their work downhill on the other side.
That metaphor is upside down though, isn’t it? Like Sisyphus citizens push uphill to persuade the courts that their rights are breached and when they do get a favourable decision down all of it goes as the government repeats its crimes with abandon.