The exception that makes the rule | Alex Sciberras

Last Monday, Magistrate Audrey Demicoli acquitted author Alex Vella Gera and editor Mark Camilleri on criminal charges of ‘disseminating pornography’.

Later that morning, Camilleri’s lawyer Dr Alex Sciberras looked visibly relieved as he publicly welcomed the ruling in a press conference before the law courts.

Defining the ruling as an “important first step” towards updating the law, he also hinted that much work remains to be done, if the threat of future prosecutions involving art or literature is to be allayed.

At the heart of the matter is Article 208 of the Criminal Code, which makes the “distribution or display” of any “pornographic” or “obscene” material a crime punishable by up to six months imprisonment.

But as the prosecution discovered in the case of Vella Gera’s Li Tkisser Sewwi – now arguably the most famous short story in the history of Maltese literature – the law itself is wide open to interpretation.

The first and most glaring question concerns the precise definition of ‘obscene’, which is at best rather vague. Sciberras summarises the definition supplied by Parliament as follows: “Anything that lays excessive emphasis on sex, violence, delinquency – even ‘horror’ – can qualify as ‘obscene’.”

This can however be made to apply to a wide range of public expression.

“By the standards of this definition, most popular art forms could easily be defined as illegal. This could apply to films like Trainspotting, and even classics like The Godfather series…”

However, Sciberras acknowledges that there is an escape clause written into the law itself. Explicitly (and excessively) sexual and/or violent content could be deemed acceptable, if it can be demonstrated to serve “the common good”.

But this only raises a second anomaly: there is no legal definition of ‘the common good’, either… and judging by recent developments (including unrelated issues such as divorce) consensus on any workable definition is unlikely, if not downright impossible.

Sciberras argues that the Demicoli ruling represents a vital first step towards making sense of the legal minefield posed by Article 208.

“This judgment is one of the first to tackle head on the challenges this law has left to the courts. It tries to address some of the legal shortcomings: supplying definitions where the law is unclear, and pointing towards a framework within which the law can be practically applied.”

When it comes to defining obscenity, the ruling adheres to the British model, which centres on the intention behind the distribution of the material in question. If the intention is interpreted as ‘to corrupt the morals of society’, then a case could be made against the perpetrators.

The ruling goes a step further, and Sciberras praises it for being the first of its kind to recognise that values change over time.

“It recognises that concepts such as ‘public morals’ do not exist in a box. They are dynamic, changing in step with society, and this has to be taken into consideration when interpreting the law.”

And this is not all. Among the many oddities surrounding the Li Tkisser Sewwi case was the fact that the person who initially pressed charges – University rector Prof. Juanito Camilleri – publicly admitted to having interpreted the story literally, suggesting that author Alex Vella Gera was to an extent encouraging misogyny with his portrayal of a foul-mouthed, sexually depraved adult male.

This view was taken up by the prosecution, which argued in court that as the story written as a first-person narrative, it followed that the opinions it contained were those of the author himself.

In passing judgment, Magistrate Demicoli openly rubbished this view: repeatedly stressing that ‘it is evident’ and ‘clear’ that the story is intended as a literary exercise, and therefore not to be taken literally.

Returning to the ‘intention’ argument, Demicoli even noted that the author’s own aversion to the opinions concerned was equally clear from the thrust of the story itself.

More important still as far as the defence was concerned, she also stressed that it was a matter concerning human rights.

“The court states very clearly that Mark Camilleri and Alex Vella Gera were exercising their freedom of expression,” Sciberras notes with satisfaction. But he also observes that the battle is far from over.

“With this ruling the court has upheld the right to free speech. But to enshrine this protection, we need the intervention of the legislator. Parliament should take this opportunity to provide clear definitions and parameters to make the law clearer and more functional.”

And despite the clarity of the ruling, it is debatable whether it will impinge on future cases. Sciberras points towards a well-known legal idiosyncrasy of ours: the lack of any precedent law.

This in turn means that one judgment may give an interpretation to an existing law, only for another later judgment to supply an altogether interpretation, and so on and so forth ad infinitum.

“Technically there is nothing to prevent the state from prosecuting similar cases in future. And with a different judge it is possible for to court to reach a completely different conclusion.”

Nonetheless, Sciberras is optimistic that the principles laid down in this case will be taken up in future. “Although there is no precedent system, in practice quite a few judges do refer to previous cases when it comes to formulating judgments. I am confident this verdict will have an impact on future cases.”