The ‘sub judice’ mess

The truth is that, irrespective of the way this case was handled and resolved, such issues are tantamount to a clash between freedom of the press and the rule of law that bans undue influence on the judicial process

This court decision could ‘open the floodgate for similar decisions’
This court decision could ‘open the floodgate for similar decisions’

Earlier this week, the editors of four media outlets (including this newspaper) issued a statement that condemned the ‘misuse’ of using contempt of court as ‘a callous tool of suppression of information.’

This followed the recent decision of Magistrate Joe Mifsud to stop Xarabank from broadcasting interviews with Liam Debono who stands accused, among other things, of an attempted murder – and Simon Schembri, the police officer who was the victim of this attempt.

The concern expressed by the four editors in this statement is that this Court decision could ‘open the floodgate for similar decisions.’
I do think that, in this case, the magistrate should have asked the ‘other side’ for their submissions and even asked to see what these video clips were all about, but these are procedural issues and the magistrate’s decision would have probably been the same, even if he had followed that line of action.

The truth is that, irrespective of the way this case was handled and resolved, such issues are tantamount to a clash between freedom of the press and the rule of law that bans undue influence on the judicial process.

Many moons ago, it was a generally accepted common practice for the press to avoid comments concerning issues relating to incidents that were the subject of court proceedings. I believe that even Members of Parliament used to follow this ‘rule’, albeit they enjoy Parliamentary privilege.

The strict journalistic observance that meant one had to decline from commenting on cases that were still in the process of being judged by the Courts was actually a respected tradition. The media of the time had, in fact, followed a ‘law’ that did not really exist. At some point in time, journalists and columnists – foremost amongst them being the late Daphne Caruana Galizia – realised that, strictly speaking, there was no such law that was tantamount to an all-embracing ban on commenting about cases in front of the Courts.

Suddenly, opinions on cases in the Court started to flood the media, more so in this age of social media where every Tom, Dick and Harry assume they are the best defence lawyer or prosecuting officer (depending on which side their pre-conceived bias puts them) and even then proceed to act as judge and decide on the merits of cases that were still undecided and therefore sub judice.

The situation recalls Lewis Carrol’s famous line from Alice in Wonderland: ‘I’ll be judge. I’ll be jury,’ said cunning old Fury: ‘I’ll try the whole cause, and condemn you to death.’

While one can serenely accept that magistrates and judges resist being impressed and influenced by the media, this certainly does not apply to members of a jury panel selected from among common citizens. The argument that the media – traditional or social – can unduly influence prospective jurors is, therefore, not one to be discarded.

Where does one, therefore, draw the line?

Passing new laws will not do the trick – they might make matters worse, as far as freedom of the press is concerned.

As it so happens, in practically the same week an incident that also raises the same question occurred in the UK. Former Labour politician, Lord Peter Hain, used parliamentary privilege to reveal that multi-millionaire Philip Green was the businessman behind a high-court injunction preventing ‘The Daily Telegraph’ from reporting details of non-disclosure agreements with employees.

Although Green has denied that he had sexually harassed and racially abused staff, several of his employees alleged that the tycoon had sexually harassed or bullied them and were given enormous seven-figure secret pay-outs to settle their claims.

Here the clash is evident. Green used the ‘rule of law’ to gag the press and then Parliamentary privilege was used to challenge the Court decision.

Writing in ‘The Guardian’ about the case, Jolyon Maugham insisted that the judges got it wrong in granting the injunction to Philip Green because they failed to see the case from the point of view of the victims of sexual harassment, Maugham concluded his opinion piece in this manner: ‘There is a role for parliamentary privilege as a balance to the power of the courts. And we can’t rule out the possibility that Hain had good reason to front-run the court’s final decision. But it is not easy to see what was gained by him speaking now, rather than waiting. To circumvent is to damage the rule of law.’

Balance is the key word here.

Muzzling the press is always wrong in principle and there must be a really good reason to justify a Court to decide otherwise.

US mid-term elections

Mid-term elections in the United States will be held on Tuesday, November 6, 2018. Mid-terms are held every four years, about halfway through the President’s time in office, putting the entire House of Representatives (Congress) and a third of the Senate up for re-election.
Trump’s Republican Party currently controls both chambers. In these mid-terms, both could theoretically fall to the Democrats, though the Senate is very much a longshot.

Even if the Republicans only lose the House, however, it will leave Trump unable to pass legislation without the help of his political enemies.
No wonder that this year’s mid-terms are being seen as a referendum on President Donald Trump, more so as control of Congress seems to be up for grabs. Tuesday’s results will either cripple Donald Trump’s presidency or throw his opponents into political chaos.

A poll conducted by ‘Politico’ during the last week when there was an increase of violent clashes in the US, shows that a majority of voters (56%) think that President Donald Trump has done more to divide the country than to unite it since he took office. On the other hand, 30% think that Trump has done more to unite the country.

But the media fared worse with 64% saying that the media has done more to divide the country while only 17% say the media did more to unite it.

The poll was concluded with one week to go until the mid-term elections, and the political environment in the US remains challenging for Trump and Republicans. The President’s approval rating is 43%, down from 45% the previous week. A majority of voters, 54%, disapprove of the job Trump is doing as president, up slightly from 51%.


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