Contempt of court, or gagging order?

Freedom of expression may be a fundamental human right; but – as experience teaches us, time and again – it is also fundamentally problematic, on a wide variety of levels.

This week’s court decree, handed down by the magistrate hearing the compilation of evidence against the alleged Daphne Caruana Galizia assassination mastermind Yorgen Fenech, seems to underscore the precise difficulties involved.

Responding to a request by Fenech’s lawyers, Magistrate Rachel Montebello has ordered contempt of court proceedings to be instituted against the authors of certain online articles.

The publications in question include news items from MaltaToday, The Times, Newsbook, Lovin Malta, Manueldelia.com, The Shift as well as Facebook posts by Matthew Caruana Galizia.

Also included is a satirical post by the Bis-Serjetà Facebook page – alluding to Yorgen Fenech’s defence team as ‘mafia lawyers’ – which was submitted to the courts during the proceedings; but not, it appears, as part of the initial complaint.

Montebello observed these amounted to “unjust attacks intended to obstruct the defence lawyers and deputy Attorney General in the carrying out of their duties and cast an ugly shadow over their capacities or characters.”

Significantly, however, the magistrate stopped short of ordering an outright ban on such articles: rightly noting that “the matter was one of public interest, given Fenech’s vast contacts with politicians and businessmen and his involvement in projects of national importance.”

What is perhaps less immediately justifiable, however, is the observation that ‘insults against court officials’ – amongst them the lawyers of the parties, the Attorney General or his representatives and the prosecutors which are intended to disturb them in the carrying out of their duties – constituted “an attack against the administration of justice and contempt of court.”

Even more worryingly, the December 28 ruling also observed that the court felt the need to intervene to protect the proceedings from “frequent, intensive and generally negative” reporting.

The first of those three concerns – i.e., ‘frequency’, and ‘intensity’ – had already been negated by the same magistrate’s refusal to order a publication ban. There is no doubt that the Fenech case is a matter of major public interest; it should follow, therefore, that the media would pursue it both ‘frequently’ and ‘intensely’.

Equally clearly, then, the real objection concerns the ‘negativity’ of the reporting. And this is where the problem swims into full view. Do newspapers, blogs, public commentators, and even (in this case) satirical websites, have the right to express ‘negative opinions’ about a matter on intense public interest… or not?

Applying European case-law, the answer should surely depend on one basic factor: whether the expression of those opinions can be seen to conflict with other fundamental human rights… including the right to a fair trial.

To be fair, it is not immediately clear-cut. The implication of many (though arguably not all) of the articles is that Yorgen Fenech is indeed guilty, as charged. And this does appear to fly in the face of the ‘presumption of innocence’.

But this has to be weighed against the actual impact of such opinions on the administration of justice itself. In her ruling, the magistrate appears to confirm that such statements may indeed sway the course of justice; but is that really the case?

And if so: what does this tell us about the objectivity and impartiality of Malta’s criminal justice system?

One would surely have assumed that the justice system is, in fact, robust enough to avoid being unduly influenced by such observations. And in this particular case – extending, as it does, even to satire – the notion becomes almost absurd. Are we really to believe that a ‘Bis-Serjeta’ meme (which is the equivalent of a newspaper cartoon) can indeed tip the scales of justice, and result in an unlawful conviction (or, conversely, an equally unlawful acquittal)?

If so, ours would be a weak justice system, to say the least.

Of much greater concern, however, is the possible effect of the ruling itself. Given that the expression of opinion, regarding this case, has now resulted in criminal action… the result will surely have a chilling effect on commentators who could risk facing contempt of court procedures for statements (of any kind whatsoever) dealing with the Yorgen Fenech trial.

From this perspective, the ruling appears to be less concerned with safeguarding the judicial process, than with gagging public opinion about a matter of grave national importance. As such, it comes across as a very vague and confusing remedy to the complaints of the lawyers themselves.