When ‘freedom of expression’ really was under siege

By upholding a local, unsound law over the international charter of human rights, the Constitutional Court did nothing but illustrate that ‘human rights’, in Malta, were worthless at the time

It is naturally a coincidence, but two separate news items that appeared yesterday (15 May) come across as a graphic reminder of a very recent phenomenon many of us seem to have already forgotten: the extraordinary extent to which freedom of expression was under siege in this country, until just a few years ago.

The first was about a European Court of Human Rights ruling which overturned the 2009 ban on the play ‘Stitching’, by Anthony Nielson. The second was the phasing out of criminal libel, which officially ceased to exist as the new Media Law came into effect yesterday.

In a sense, the timing couldn’t have been more appropriate. Paradoxically, both these announcements coincide with a time when Malta stands accused of clamping down on press and artistic freedoms on an unprecedented scale. And most of these accusations come from the international press... or at least, those sections of it which have chosen (very lazily, it must be said) to simply plug themselves into the narrative of the moment.

Never mind the reality of the situation on the ground... where journalists can now write stories without the threat of criminal libel; where authors and editors no longer need to fear criminal prosecution (complete with the threat of prison sentences) for publishing their work; where controversial plays can be staged without a go-ahead from the local ‘morality police’; or where blasphemy is no longer a criminal offence, as it was until 2014. Apparently, none of that counts for toffee anymore... no, not even in a debate about ‘freedom of expression in Malta’.

Yet oddly enough, all those things happened here between (roughly) 2004 and 2013: you know, in our recent ‘Golden Age’, before the total collapse of human rights and the rule of law. Those cases I mentioned earlier are but distant aftershocks from the time when suppression of free speech was a commonplace feature of everyday life in Malta: in fact, the harsh realities they remind us of already seem to have faded from memory.

Going only on the current wave of international press reports, however, nothing seems to have happened here at all in connection with freedom of speech. Except, of course, for one incident: the murder of Daphne Caruana Galizia last October. It is as though the rest of the world has ever since been looking at Malta solely through the lens of that one particular (and very ‘sui generis’) case... while somehow overlooking the enormity of the changes that have swept over entire press and artistic landscape in the past decade. Certainly, there was no corresponding narrative of Malta as a place which actively suppressed free speech... even if that is precisely what Malta was, until the major reforms of the past few years.

Perhaps it’s just a case of time differences between the various zones of Europe. I was under the impression that Paris, London, etc, were around an hour behind us on the clock. Turns out the actual difference may be closer to five or six years...

But still: even a stopped clock tells the correct time twice a day. This ‘repressive Malta’ narrative may be hard to square up with contemporary reality... at least, insofar as press freedom issues go... but it sure fits the earlier Malta to a ‘T’. So perhaps it may be worth revisiting this forgotten age when exercising your freedom of expression in this country could (and often did) land you in serious trouble with the law.

Let’s start with ‘Stitching’: the play banned by the (now-defunct) stage censorship board in 2009 over concerns with blasphemy, among other objections. It may have taken eight long years, but the ECHR ruling handed down yesterday clearly establishes that Malta had violated the European Charter of Human Rights by denying its citizens the right to watch a theatre production (not to mention the theatrical company’s right to produce it, the author’s right to make his voice heard, and so on).

But just look how long and hard we had to struggle for those freedoms to be safeguarded. And how lonely the struggling minority felt, confronted at every point by an insurmountable wall of institutional intolerance.

Remember, too, the sort of arguments they had to contend with... and above all, where they were coming from at the time. In upholding the decision to ban ‘Stitching’ (which we can now safely describe as a human rights violation) Mr Justice Joseph Zammit McKeon had observed that “it was unacceptable in a democratic society founded on the rule of law for any person to be allowed to swear in public, even in a theatre as part of a script...” and “that the country’s values could not be turned upside down in the name of freedom of expression.”

Please note: ‘a democratic society founded on the rule of law’. Perhaps the only part of Zammit McKeon’s ruling I agree with is, in fact, his equation of ‘human rights’ with ‘rule of law’ issues. Beyond the obvious flaw in the reasoning – ‘values’, by definition, cannot trump ‘rights’ – this judgment  also raised questions of jurisprudence.

From a legal perspective, the blasphemy ban (even in the context of an acted play, which is perhaps the most bizarre aspect of that ruling) was clearly at odds with the Human Rights Charter, which guarantees the right to speak freely regardless of such considerations. In the hierarchy of laws, the Human Rights Charter (entrenched in the Constitution) takes precedence over the Criminal Code. Automatically, this made our blasphemy ban unconstitutional, and therefore illegal.

This week’s ECHR ruling merely confirms this self-evident fact... only several years too late, as the original error has since been rectified by the removal of the blasphemy ban (and stage censorship in general). So, by upholding a local, unsound law over the international charter of human rights, the Constitutional Court did nothing but illustrate that ‘human rights’, in Malta, were worthless at the time. The moment the right to freedom of expression conflicted with the broad majority view on morality... hey presto! It simply ceased to exist.

There, in a nutshell, you have a ‘rule of law’ crisis in the making. Some institutions had arrogated unto themselves the right to simply overturn international human rights legislation on a whim – or rather, on the basis of their own private views and opinions (which had, or should have had, no business to be dictating the law). And it helps to also remember that these institutions also enjoyed the full backing of the government of the day, with all the extended media machinery that implies.

The same principle applied (with more serious consequences) in the case against Alex Vella Gera and Mark Camilleri, over an ‘obscene’ short story published in a campus newspaper. Both faced possible prison sentences, though in this instance the local courts eventually threw the case out. But how did it reach the law-courts in the first place?

It wasn’t just a matter of the police being overzealous in applying the law: again, there was an entire network of institutional power acting as a driving force for the prosecution. The report had been filed by the University Rector: the prosecution’s case was taken up by the Nationalist Party’s TV and radio stations... which even tried to smear Vella Gera with the charge of encouraging ‘paedophilia’ (the story revolved around fantasized sex with an underage girl).

There was, in brief, an entire culture in place aimed at aggressively straitjacketing the country into an uncomfortable moral mould: and if you didn’t fit, you had to either keep your trap shut... or prepare yourself to face the full brunt of the law.

Well, all that’s finished now. And it feels finished, too. I certainly don’t feel I’m living in a country where I have to watch what I say (though I used to, until recently). Ah but that’s probably because I’m not paying all that much attention to everything that’s being written about Malta these days. If I did... hack, I’d probably be too afraid to poke my head outside my own front door.

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