Closing the gaps on freedom of expression

Justice Minister Owen Bonnici this week announced a revision of the criminal code to update archaic Malta’s blasphemy and obscenity laws, among other relevant articles of legislation. This follows on from two earlier reforms in the same direction: the removal of a theatre classification system in 2012; and the abolition, following the change of government, of the Censorship Board the following year.

The latest reform however takes a significant step beyond its predecessors, in that it also signals a change in Maltese governments’ traditional approach to issues such as censorship and public morality. Bonnici alluded to this himself when presenting his government’s proposals on Thursday. “The State cannot play moral custodian,” he said, adding that “adults should not be told what they can and cannot watch.”

This marks a very decisive break from the past, when it was almost taken for granted that governments would perceive themselves as the guardians of public morality. Both sides of Malta’s political divide have succumbed to this delusion in the past: the 2007 ban on Stitching (arguably the cause célèbre that precipitated this reform) took place under a Nationalist administration, while the law cited to prosecute author Alex Vella Gera and editor Mark Camilleri over Li Tkisser Sewwi was enacted by the Mintoff administration in 1975. 

Other laws to be amended or repealed predate Independence by several decades. For instance, the article that criminalises “vilification of the Roman Catholic religion and other cults” has been in place since 1933: a time when popular perceptions of morality were very different indeed from the present.

Apart from updating Malta’s criminal code to reflect contemporary realities, the proposed amendments also serve to clarify a number of outstanding legal grey areas, especially insofar as pornography is concerned. One of the foremost problems with the 1975 law was that it lacked a workable definition of the word ‘pornography’, and instead generically outlawed articles that ‘unduly emphasised sex, crime, horror, cruelty and violence’.

Such a broad category could only give rise to different and often conflicting interpretations. Many films shown routinely at local cinemas could easily be deemed to ‘emphasise horror, cruelty and violence’: in the case of specific genres such as horror, that is the whole point. 

Yet when it came to applying this law, the State chose to arbitrarily only focus on the ‘sex’ emphasis – and even then, only in cases of local publications – while ignoring all the other categories that were likewise prohibited by the same legislation. This in turn underscores the inherent danger in retaining archaic laws beyond their sell-by date: had the law been uniformly applied, the levels of censorship it would have produced would be considered almost laughable by today’s standard.

Previous approaches involved applying the law sporadically, only in cases (such as the aforementioned Realtà controversy), which were bound to provoke public outcry. This is intrinsically unjust, and raises suspicions that the outdated law may in fact have been retained simply because it could occasionally serve the purpose of silencing individual views or artistic expression.

Much the same applies to the other laws under review. Articles 163 and 164 of the Criminal Code envisage six months’ imprisonment for the vilification of religion “by words, gestures, written matter whether printed or not, or pictures”. In practice, this would apply to every single case in which blasphemy is ever uttered in public: a daily, routine occurrence in all parts of Malta and Gozo. In practice, however, citations were usually handed out only when the blasphemy was aggravated by other crimes… or alternatively, only in isolated ‘controversies’, such as the incident when a Nadur carnival attendee dressed up as Christ the Redeemer.

The new amendments go a considerable distance towards addressing these multiple lacunae and discrepancies in Maltese law, and – much more importantly – should also offer greater protection of freedom of expression. This does not however mean that the proposal will not be met with resistance: already it has been argued that Article 165 should be retained because “otherwise, there [would be] no protection for people to practise their religion in peace.”

It is an understandable concern, but one that must also be viewed in the context of the Human Rights charter. Freedom of expression is listed in the charter as a fundamental human right; but there is no equivalent right for one’s belief system – religious or otherwise – to be shielded from criticism or even abuse.

It is worth remembering also that the legal amendments retain existing minority protection safeguards: racist (or similarly intolerant) comments will remain illegal, but only in cases where the intention is to incite violence.

This is at it should be. State intervention to avoid or condemn violence is a state of fact we all accept as a sine qua non of a civilised society. But State intervention to clamp down on non-violent speech, or to protect ‘privileged’ views or opinions, is something else entirely.

Bonnici is therefore to be commended on delivering on this aspect of his government’s manifesto so promptly. One now looks forward to the enactment of the rest of this manifesto on the issue of human rights: the removal of criminal libel being the next logical step.