Comment is free. Until you pay for it…

Memory loss is apparently a common early symptom of the onset of dementia, or so I’ve been told. Hang on, wait, maybe it was something I read somewhere. For the life of me I can’t remember now. Funny, huh? But in any case, it looks like I’m not the only one to suffer the occasional bout of amnesia here and there.

The Times, for instance, recently ran an editorial entitled ‘How free are we to speak?’ A fair question, I would have thought, coming at a time when the most extraordinary means of silencing individuals – and occasionally entire countries – are being revealed to us every day.  
The editorial was based on a lecture given by Lord Ivor Judge – and yes, he’s a judge – earlier this month. By all accounts the lecture seems to have been fascinating, and I am sorry I missed it. I somehow suspect The Times editorialist must have missed it, too. But more of that later.

Very perceptively, Lord Judge asserted (according to the same editorial, at any rate) that the greatest threat to human liberty at the moment is a tendency to assume that “everything will be all right”. It applies beautifully to the overall concept of freedom of expression – i.e., the ability to speak one’s mind without fear or oppression by the State – and in particular to the situation in Malta.

Real threats to this freedom do not arise only from tyrannical regimes which actively seek to suppress comment (though there is no shortage of these: Turkey has become the latest state to attempt to ban Twitter, precisely because it proved difficult to otherwise ‘control’ it). No, there is another danger much closer to home. People have a tendency to minimise or dismiss existing threats, because they assume – often for partisan-political reasons – that Malta is a country in which free comment is somehow ‘guaranteed’. Briefly put, they simply buy into the mythology that human rights violations pertain to a recent but mercifully closed chapter in our history… and that the page was turned precisely on 9 May, 1987.

Most will stubbornly refuse to even acknowledge any evidence to the contrary, no matter how conspicuous… at least, until they themselves are affected by any form of attempt to stifle their own ability to comment or express an opinion; in which case their confidence in Malta’s post-87 human rights record will be instantly erased as if by a spectral censor in the sky.

But then their own wails and howls of protestation will be ignored or pooh-poohed by the rest of the unaffected population... and on it goes, predictably, forever.

The Times editorial goes on, too… and in so doing it very helpfully illustrates how this endlessly-repeated process works in practice. Here, for instance, is one of its baldest observations: “Comment in Malta is free. Or at least it has been, to date, since the Nationalist Party was elected to government in 1987. However, dark clouds seem to be looming on the horizon…”

Got that, folks? Comment has been ‘free’ in Malta since 1987. And it is only now – after a 25-year ‘interregnum’ of blissful human rights protection – that this ‘freedom’ is once more under threat. Etc, etc.

On one level, you’ve got to hand it to the author. Mythologies normally fill up entire encyclopaedias. Yet The Times somehow managed to condense our own political mythology into three measly little sentences. That’s almost the equivalent of a one-line encyclopaedia entry on every myth that has ever existed: “Bunch of gods do a bunch of stuff, then disappear’.

Having said that, it is easy to see why this fantastical idea that we have just experienced a ‘Golden Age’ of human rights protection – which will of course end abruptly as the new government moves to curtail all our rights – has been so successful. It’s so much simpler and less threatening to believe than the reality: which is that whoever happens to be in power will sooner or later use that power to clamp down on freedom of expression. And this because people who wield power are only ever concerned with two things: retaining that power, and maximising it.

So perhaps it is the early onset of dementia, perhaps we have all drunk a draught from the River Lethe… but in reality, freedom of expression has been under constant threat in this country throughout the two and a half decades since 1987, and often with the direct complicity of the same government credited with having ‘safeguarded’ it.

One little example concerned the criminal prosecution of an author and editor over a short story in a campus magazine in 2006. Alex Vella Gera and Mark Camilleri found themselves threatened with prison, no less, over the publication of ‘Li Tkisser Sewwi’. And who bayed loudest for their blood at the time? As I recall, that honour goes to Net TV, which accused them of glorifying ‘child pornography’.

More incriminating still, the Ministry of Justice and Home Affairs moved to increase the penalties faced by both Vella Gera and Camilleri by a scarcely believable 600%. Not content with the Attorney General’s quasi-messianic zeal in prosecuting the case (‘There is God! God, I tell you!’, etc.), the government took steps to ensure that future attempts to stifle freedom of expression would come at a significantly higher cost to the person actually being silenced.

Another case of flagrant censorship at much the same time was the outright ban on Stitching, an award-winning play by Antony Nielson. To put things into perspective, the same play was later rated ‘14’ at the Edinburgh Fringe Festival. In other words: good enough for Scottish adolescents, but not suitable for Maltese adults. Och, aye…

Both these cases hinged to a degree on censorship for moral purposes. But that is hardly the only area where freedom of speech has been abundantly defecated upon in the past 25 years.

Chugging merrily along in the background throughout all this time – with no signs of abatement today – are the interminable libel cases aimed specifically and undisguisedly at curtailing free comment. One day I would like to analyse the sheer bulk of libel cases filed in the Maltese courts in the past 30 years, with a view to determining what percentage of these was initiated by either of the two parties against their critics.

Unfortunately, the numbers involved in the calculation are rather large, and another thing I’ve forgotten is the Logarithms Table. But I can predict offhand that the search will reveal some 14 libel cases against this newspaper filed on the same day (in 2004) by the entire PN executive. It will also reveal how criminal libel prosecutions tend to suddenly dramatically surge in number during successive electoral campaigns, until they sometimes hit the tune of one a day.

And the law courts have openly been used as an accomplice in all this bonanza of state-enforced censorship. The latest (non-political) case, mentioned fleetingly in the same editorial, concerns the acquittal on appeal of a 16-year-old girl for ‘defaming’ circus organiser Silvio Zammit by calling him – shock, horror – a ‘clown’.

Incredibly, the magistrate’s court originally found the girl guilty, and it was only this week that the absurd injustice was rectified. “Calling someone a clown should be allowed in a democratic country according to freedom of expression”, Judge Quintano said. That’s another way of saying that the case should have been thrown unceremoniously out of court at first instance; yet it dragged on for four years, and other equally bizarre cases are filed every other day.

This week, two radio DJs were convicted of libel for describing a referee as a ‘figolla’ in a running football commentary. Personally I would have thought the Easter Bunny had more grounds to sue than the referee. But oh look: even an imaginary creature from mythology – a rabbit that lays eggs, for crying out loud – can easily see that this would be a monumental violation of the right to fair comment.
Our magistrates, on the other hand…

Meanwhile there is also the issue of criminal libel. Malta remains to date the only EU member state where libel is still subject to criminal prosecution. Coincidence? I think not. Past governments (including every single one between 1987 and 2013) have consistently resisted pressure by the Council of Europe to revise this torrid state of affairs. And whose interest does it serve to retain this legal archaism, I wonder?

For those who haven’t yet had the honour, criminal (as opposed to civil) libel entails prosecution by the police. Not by the appellant. By the police. As a result, anyone who feels the need to resort to libel can simply get the police to press charges on their behalf, for a case that will ultimately be paid for by the state. This person being sued, by way of contrast, has to bear all the expenses him- or herself.

This turns the entire concept of ‘free comment’ on its head. As things stand, it is only ‘free’ to try to curtail freedom of speech in this country. Defending the same freedom is however costly; and for all the reasons outlined above, it has been constantly necessary to defend it, too… often against governments which either made no effort whatsoever to safeguard a basic human right, or which even took decisive steps to restrict it further.

Still, feel free to continue believing the mythology if that makes you happier. Far be it from me to suppress an opinion… no matter how amnesiac or bizarre…