Archive for 2010

Grounds for Divorce Under Proposed Legislation: The Irish and Italian Perspectives

This article first appeared on Quid Juris? GHSL's Online Law Student Journal on 24/10/2010, published by L-Ghaqda Studenti tal-Ligi (GHSL), authored by Andrew Sciberras

On the 6th of July 2010, Dr. Jeffrey Pullicino Orlando MP (Nationalist Party) tabled a Private Member’s Bill (the Bill) in the House of Representatives wherein he formally presented the Family Law (Divorce) Act. This article intends to examine and comparatively analyse the provisions of the said bill, particularly focusing on the grounds for obtaining the divorce decree, although the author does not exclude examining other areas of the subject in due course.

In the preliminary it must be remarked that the said bill seems to have been derived almost lock, stock and barrel from the Irish Family Law (Divorce) Act of 1996. Therefore, recourse to Irish jurisprudence relating to the grounds of divorce is fundamental in order to achieve a better understanding of the subject. The Irish law adopts the so-called ‘no-fault divorce system’, meaning that parties are spared from ‘the potentially embarrassing and adversarial requirement of stating fault based grounds by providing for the dissolution of a marriage on a finding that the relationship is no longer viable.’ This is unlike the situation deriving under the laws regulating separation in the Civil Code wherein the grounds for separation include fault-based motives such as adultery or cruelty.

The Grounds for Divorce under the Bill and Irish Law

It is general practise that one of the first exercises a Court faces upon hearing a case is in deciding whether it has jurisdiction or otherwise. In accordance with Article 30 of the proposed bill the Court may grant a divorce decree if, but only if, one of the following requirements is satisfied:-

(a) either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned; or

(b) either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date.

It is interesting to note that this article grants jurisdiction to the Courts of Malta also on the basis of ‘ordinary residence’ and is not limited strictly to the more rigid and arbitrary notion of ‘domicile’. Thus, this appears to complement, albeit not entirely, Article 3 of the Brussels II Regulation which confers jurisdiction in matters relating to divorce, legal separation, or marriage annulment with the Courts of the Member State in whose territory the spouses are ‘habitually resident’. This is unlike the rule obtaining under Article 33 of the Marriage Act (Chapter 255 of the Laws of Malta) which only permits the recognition of a divorce obtained outside Malta if one of the spouses is domiciled in or is a citizen of that foreign country.

According to Article 3 of the proposed bill if the Court is satisfied that:-

(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years;

(b) there is no reasonable prospect of reconciliation between the spouses; and

(c) such provision as the court considers proper, having regard to the circumstances exists, or will be made for the spouses and any dependant member of the family

the court may, in exercise of the jurisdiction conferred by the Constitution, grant a decree of divorce in respect of the marriage concerned.

As has already been elaborated, it can be seen from the foregoing that no element of fault or blame needs to be ascribed to either party in order to qualify for a divorce under this section. Furthermore, the wording of this article suggests that all three grounds must be satisfied before a decree can be granted. It is therefore prudent to analyse each ground separately in order to obtain a better understanding of the legislator’s intention.

1. Lived Apart

The spouses must have been living apart for four of the previous five years. Therefore, to obtain a divorce decree, it is necessary that the parties be married for in excess of five years. Unlike the Italian legislation, which shall be examined later, this requirement is satisfied even if the ‘separation’ between the spouses is de facto. Unfortunately for both practitioner and judge however the proposed bill and the Irish law on which it is modelled provide no definition of the expression ‘lived apart’ or ‘living apart’. This raises several pertinent questions of interpretation. For instance, can the spouses be considered to be ‘living apart’ even though they live under the same roof? Upon whom does the onus to prove that the spouses have been living apart fall? The prevailing view, according to Irish jurisprudence is, in response to the first question, that it all depends on the facts of the case. However, case-law can help to put the answer on a firmer footing. In the UK judgment Santos v Santos it was held that:-

[L]iving apart…is a state of affairs to establish which it is in the vast generality of cases…necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting. That involves considering attitudes of mind and naturally the difficulty of judicially determining that attitude in a particular case may on occasion be great…identification of an attitude of mind is required. [At p. 255].

This reasoning was accepted in the Irish judgment of McA vs. McA where judge McCraken J. recognised that as ‘there is a mental element to’ living apart other than mere physical separation, there is more to living together than being physically in the same house. In this case the father’s return to the family household was motivated by the desire to develop his relationship with his children and not to restart the marriage. In absence of the intellectual attachment to the marriage the spouses were deemed to be living apart even though they shared the same household.

2. No reasonable prospect of reconciliation

The court must be satisfied that ‘there is no reasonable prospect of reconciliation between the spouses’. The four-year separation period (per the first requirement) may already be indicative of the fact that reconciliation between the spouses is unlikely the Court is still under the obligation to examine whether there is a reasonable possibility for reconciliation. In fact Articles 4 and 5 of the proposed bill obliges the lawyers representing the applicant and respondent respectively to discuss with their clients the possibility of a reconciliation and give him or her the names and addresses of persons qualified to help to effect a reconciliation prior to the institution of proceedings.

As with the first requirement it all depends on the facts and circumstances of each particular case and the degree of acrimony or agreement in each case will assist the court in deciding the issue. In E.P. v C.P. it was held that this ground would be satisfied if the breakdown of the marriage was irretrievable: both parties accept that there is no reasonable prospect of reconciliation. In this sense the Courts must not adopt a strict interpretation of this requirement. Rather, they must ensure that there is no reasonable prospect of reconciliation and not that there is absolutely no hope.

3. Such provision as the court considers proper

The Court must be satisfied that such provision as the court considers proper, having regard to the circumstances exists, or will be made for the spouses and any dependent members of the family. This means that the Court must be prima facie ensured that provision, that is, alimony or maintenance, for the spouses and any dependant members of the family already exists or will be made prior to granting the decree of divorce. It could be that prior to divorce, the spouses have already obtained a judicial or consensual separation and, in consequence, one of the spouses has already been directed by the Court to pay maintenance to the other and to sustain his or her children. Again, this requirement is not devoid of interpretational problems, in particular the interpretation that should be given to ‘dependent member of the family’. Should this be limited to the definition given in Article 2 of the proposed bill (see footnote 11) or should it be extended so as to cover all children such that a divorcing parent may be ordered to pay maintenance even to his adult children?

Grounds for Divorce under Italian Legislation

Interestingly enough, Italian legislation does not speak of divorzio but of scioglimento del matrimonio civile, that is, of the dissolution of the civil marriage and/or of cessazione degli effetti civili del matrimonio concordatario, celebrato da ministri del culto cattolico (termination of the civil effects of marriage celebrated by ministers of Catholic worship).

In order to examine the relevant rules, recourse must be made to Article 149 of the Codice Civile which states that marriage shall be dissolved upon the death of one of the spouses and in other cases prescribed by law. These ‘other cases’, in the context of divorce, are provided for in Law No. 898 of 1970, as amended by Law No.74, 1987, namely the so-called ‘divorce law.’

First, Articles 1 and 2 of Law No. 898/70 indicate that the first investigation to be made by the Court regards the inability to maintain or restore the material and spiritual communion between the spouses for one of the causes identified by Article 3. The declaration of divorce, therefore, does not automatically follow a finding of the presence of one of the reasons under Article 3, but in any case requires the determination by the Court of the existence of a practical impossibility of maintaining or restoring family life upon the failure of the spiritual and material union between the spouses. This is similar to the provision under the Irish legislation which requires that ‘there is no reasonable prospect of reconciliation between the spouses’ for the decree of divorce to be granted although it goes one step further by linking the impossibility of reconciliation with the breaking down of the spiritual and material union between the spouses.

That said, the Court must determine that one of these strict objective grounds, pursuant to Article 3 of the Act under review exists:-

1) the conviction of one of the spouses, after the celebration of the marriage, which conviction has become res judicata, even for acts committed before the celebration of the marriage, to life imprisonment or imprisonment for a term of more than fifteen years for one or more intentional crimes or any term of imprisonment for incest, rape, induction, coercion, exploitation or prostitution, or for aiding and abetting the murder of a child or attempted murder against a spouse or child, or even to any term of imprisonment, with two or more convictions for crimes of injury, circumvention of an invalid, of non-family care and abuse committed against a spouse or child;

2) the acquittal of one of the spouses from having committed one of the crimes in the previous paragraph upon grounds of insanity or due to prescription of the criminal action if the divorce court establishes, respectively, the inability of spouses to maintain or restore family life or that there are in fact committed the elements and conditions for the punishment of these crimes;

3) the judicial pronouncement of personal separation between the spouses which has become res judicata or by decree of approval in case of consensual separation, provided that at least three years have passed from the first appearance of the spouses before the presiding judge in the proceedings of personal separation.

4) a marriage ratified (that is celebrated), but not consumed, regardless of the ignorance of the possible impossibility of sexual intercourse;

5) a court decision which is the final step in rectifying the allocation of sex, according to Law No.164, 1982 (transsexualism)

It is manifestly evident that the grounds for dissolution of civil marriage under Italian legislation are much more elaborate than the Irish grounds for divorce. First of all the Italian legislator acknowledged that dissolution should be made possible if one of the spouses is res judicata convicted for particularly heinous crimes meriting imprisonment for life or imprisonment beyond 15 years as well as conviction for crimes against public morals such as incest, rape and prostitution. It seems that here the legislator is acknowledging the fact that upon such conviction there is a big possibility for the spouses to be unable to maintain or restore family life but it does not exclude, by virtue of Articles 1 and 2, the possibility for reconciliation between the spouses nonetheless.

The fourth ground listed above links the dissolution of the marriage with judicial or consensual separation provided that three years have elapsed since the first appearance before the presiding judge in the proceedings of separation. This is unlike the Irish law which does not require such judgment or the commencement of such proceedings but that the spouses have lived apart for four of the past five years. The Italian ground could be the wiser one because various necessary and fundamental formalities such as the allocation of the matrimonial home, alimony payments, and custody of children would have already been covered by virtue of the separation proceedings. Moreover, separation proceedings, coupled with the three year separation period after their commencement, would serve as further conclusive proof that there is ‘no reasonable prospect of reconciliation between the spouses’.

Furthermore, the Italian grounds for dissolution of the marriage also incorporate one of the traditional grounds for annulment, this being impotence (the inability to bear offspring) or refusal to consummate the marriage. This section seems to pay homage to the secular and Canonical legal doctrine that consummation of a marriage, that is, the conjugal act between the spouses for the purpose of bearing offspring, is a fundamental aspect of marriage and an obligation spouses owe to each other. In fact, both the Marriage Act and Canon law provide that an inability or refusal to consummate the marriage is a valid ground for annulment. A more controversial provision, but one which should not be excluded by our legislator, is in the granting of divorce if one spouse has undergone sex reassignment surgery and has legally changed his or her gender through a Court decision in this regard.

It should also be noted that with the amendments of Law No.74/87 the Italian divorce law has been streamlined such that spouses may present a divorce application jointly, in which case the law provides for a closed session (in camera) where the parties will appear before the Court for the first and only hearing. This is known as the procedimento per direttisima or ‘direct route’ and is somewhat similar to Article 4 (2) (b) of the proposed bill provides the spouses with the possibility of mediation to help effect a divorce on a basis agreed between them jointly.

This article appeared on Quid Juris? GHSL's Online Law Student Journal on 24/10/2010, published by L-Ghaqda Studenti tal-Ligi (GHSL), authored by Andrew Sciberras

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Who Dares, Wins

This article first appeared in IDEAT Journal Vol. 2, Carpe Diem, published by Fondazzjoni Ideat August 2010, authored by Andrew Sciberras.

I began writing this article with the intention of continuing where I left off in our first edition’s cover-story which attempted to answer the question: why do we need a progressive movement for Malta? Whilst my intention remains intact, namely that we must now concern ourselves with examining how to construct such a movement, I have decided to do away with all clichés and dullness of political pieces. It is nigh time that we cut right to the chase. Besides, the summer lull does not soothe the inspiration, ironic as that may sound. For this reason I would like to apologise to our dear readers for what would otherwise be an unprofessional approach to political writing.

That things are simply not right is more than manifestly evident. Twenty-odd years of Nationalist administration have seen many highs (and it would be utterly close-minded to deny this) but at the moment we are simply living the lows. We all know that people are severely concerned with their standard of living and that it’s become such a struggle for many to cope with bills and expenses. We all know that corruption and mismanagement of public funds is rife; that issues such divorce, civil-partnerships (or dare I say marriage?) for LBGT couples, abortion and even “avant-garde” artistic expression are still taboo. When a minor is incarcerated in the Corradino Correctional Facility and a person requiring treatment has to wait for years to get it you know that we are on the brink of despair.

If progressive politics seeks to change all this it is patently obvious that we need a committed group of progressive politicians running our country. For Labour to be a part of this change it cannot be progressive in name and on paper but also in mind and in spirit. It cannot stop at identifying the above-mentioned problems and dragging on about them for months on end in the mass media. That is the issue-based politics which garners attention but doesn’t convince. What people want to know is what Labour is going to do about it? Corruption and mismanagement are indeed bountiful, but what concrete measures will Labour introduce to increase transparency and good governance? The cost of living has sky-rocketed but how does Labour plan to lower taxes, increase public spending and keep the deficit in check? How will Labour introduce divorce (a basic civil right) and limit censorship of the arts when it is itself unsure on where it stands on such issues? Evarist Bartolo (MP, Labour Party) hit the nail on the head when he asked the questions: “What does the Labour Party stand for in the second decade of the 21st century? How can it run Malta better than the PN and create the necessary political, economic, social and cultural conditions in our islands to give our people a much better quality of life? Shouldn’t we take real steps to start moving closer to the open and liberal societies of the EU?”

I sincerely believe that the majority of Maltese citizens feel let down by the Nationalist administration. But Labour cannot possibly lead a centre-left coalition if it is not yet fully trusted. Whilst grass-roots support may have been revitalised since Joseph Muscat was elected leader, the party has yet to convince mid-range income earners that it has the right solutions for today’s problems. To do this is it needs to change radically from the inside-out. It needs, as I said, a committed group of progressive politicians ready and willing to embrace reform. In order to do this, things may be somewhat unpleasant. As the saying goes, there is no gain without pain.

For starters it has to take a clear stand on the breed of politicians it wants to represent voters in Parliament. Do not get me wrong. I am all for giving MPs the right to express themselves freely. Sometimes we can do with a little less whipping and lot more principle. But you cannot have a party which calls itself progressive whilst harbouring some of the most staunchly conservative minds in the country. Diverging opinions are healthy but extremes will lead one to question the party’s consistency and resoluteness to put into practice that which it believes in. The party needs to ensure that, above-all, its MPs (and future ministers) are open-minded and not self-serving; that do not occupy their seat to serve the interests of the majority but of all the country’s citizens. In this light Marlene Pullicino’s (MP, Labour Party) frank admission that she was “narrow-minded enough to disregard this responsibility” is heartening and a welcome step in the right direction.

In no way should this be construed as an indictment of past and present MPs. All MPs are entitled to their opinions and they have served the country and their constituencies well. But a line must be drawn if the party wants (as it rightfully should) to construct a deep and far-reaching movement of progressives and centrists. To have a strong government Labour must look to revitalising itself by reaching out to fresh faces and go-getters who share a similar appetite to battle for change. A future campaign should not be built around politicians who focus on fixing potholes but on the idea that Labour can make a difference; that change is indeed possible. But for this to occur, change must first occur within the party structures and it is time for those who are reluctant to accept this to graciously bow out.

Labour must also renew its sense of purpose as a socially liberal party. There is no wrong committed in moving forward into the twenty-first century. Rather, its failure to do so would render Labour, as Bartolo wisely said, “another shade of PN, unable to offer an alternative to the increasing number of people who want our society to open up and become more liberal and socially tolerant and just.” Ultimately a great injustice is committed upon society and future generations if it they are eternally bound by the cultural and ethical norms of the past.

I remain hopeful that in a few years’ time we will see a Labour Party that is capable of progressive governance; a party which does not lack in courage to implement radical reforms to take Malta forward. It did so in the past and it can surely do so again in the second decade of the twenty-first century. I am certain that Joseph Muscat shares this vision and all that remains now is that he acts upon it. He who dares, wins.

This article appeared in IDEAT Journal Vol. 2, Carpe Diem, published by Fondazzjoni Ideat August 2010, authored by Andrew Sciberras.

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Grasping the Progressive Ideal

This article appeared on IDEAT Journal Vol. 1The Road To Progress, published by Fondazzjoni IdeatApril 2010, authored by Andrew Sciberras.

There is no doubt that Joseph Muscat’s nation-wide call for a united progressive and moderate movement to affect change in the country’s direction has come at the right moment. Indeed, since the Nationalist Party’s close-shave victory in 2008 things only seem to be going downhill. The onset of the global financial downturn has certainly stalled growth, stability and peace of mind yet the political disaster currently facing government is for the most part its own doing. The Honourable Prime Minister Lawrence Gonzi and his closest aides have a penchant for consolidatingtheir power-base, leaving his own MP’s, let alone the rest of the country, feeling completely neglected and useless. It comes as no surprise, therefore, that the prime minster must first mend the crisis plaguing his fragile one-seat majority before assuming proper leadership of the country. This has left the country ravaged by ubiquitous maladministration across the board ranging from growing unemployment and an intolerable cost of living to the deterioration of the welfare state and a stifling conservative hegemony.
Yet the Labour leader faces a tall order as those on the left demand less talk and more action whereas conservative forces dismiss such talk on movements as hogwash in a clear attempt to preserve and maintain the status-quo. On top of that Muscat must reconcile the differences amongst factions within his own party some of which promote ideological caution whilst others push him to adopt bolder and more ambitious stances. It seems to be an impossible feat especially in a country with a long history of blind partisan loyalty and a bitter political divide. However, movements are no novel concept to Maltese politics. Just five years ago the “Yes” movement successfully campaigned in favour of EU accession and time has shown that civil society can provoke discussion on topical issues, if not prod government to bow its head and heed their call. Such has been the case when civil society pressured the public administration to change course (albeit on individual cases) on environmentally harmful undertakings and, more recently, to kick-start a nation-wide debate on the country’s archaic censorship regime.

But what does the ‘progressive and moderate’ movement actually stand for? This is the one question that merits a swift response if any movement wants to achieve credibility. Surely all movements or coalitions establish their identity by rooting for a similar cause or causes. This does not mean that the individual components of a political movement abandon their loyalties and their allegiances as a qualification for unity but, rather, to work together on points of commonality whilst respecting each other’s differences. It is time to inject a good dose of pluralism in Maltese politics, especially if, as a progressive movement should, we want to address the so-called “democratic deficit” fostered by an inane tribalism and the growing indifference of the common voter. In such climate people’s resentment and apathy becomes all the more understandable and it is absolutely crucial that they do not remain neglected.

Labour does well to recognise this predicament and more so, to listen, understand and give a voice to the disenchanted masses. For no political party, no matter how powerful and distinguished has a monopoly over wisdom. Progress neither begins nor ends with Labour but with the input of each and every individual in society. And what is progress after all? Some want to make believe that it is an imperceptible term used by politicians to make them appear hip and modern. Others may fear that it is a threat to tradition and devoid of values. Sometimes the simplest answer holds the greatest truth. In unsophisticated terms progress is the act of moving forward. Not such an intimidating enterprise for those several thousand who are sick and tired of all the hidden, or indeed barefaced, agendas to keep Malta firmly anchored in the past. And the same goes for those on the left as well.

Progress can only be accomplished by abandoning traditional dogmas still reminiscent of the old left and by becoming more pragmatic, flexible and forward-looking for one cannot possibly solve today’s problems solely by the means of the past. There is absolutely no wrong in building bridges and welcoming new partners, because after all, fruitful debate and viable solutions don’t emerge from close-mindedness but from a broad spectrum of people holding different ideas. Having said that, it would be sheer folly and wholly counter-productive to the movement’s call for change if it purports to be a haven for one and all, that is for the environmentalist and the unscrupulous speculator, the civil libertarian and the moral traditionalist, and so on. This is, in fact, a perception that the Labour Party must address as of now and for the future. As the prime mover in an umbrella movement for change Labour must show that it truly means business and dismantle once and for all the idea that its current existence hinges primarily on politics of convenience.

This is why progressivism, flexible and pragmatic though it may be, must be firmly grounded in democratic values. Progress cannot be achieved if human rights, civil liberties and egalitarianism are placed on the backburner. Progress will stall if social justice and dialogue are substituted by obstinacy and arrogance. Consumers will continue to suffer if they find no solace in a bungled and weak regulatory system. Students will resort to apathy and hopelessness if those who are supposed to represent their interests linger in passivity and indifference. A nation’s precious environmental heritage will be long-forgotten if the authorities tasked with protecting it unquestionably side with speculators. These misfortunes must be tackled head on not just by Labour, which must be ever-present in positing workable alternatives, but by civil society as well including the unions and NGO’s for it is easy to criticise and prolong mediocrity than to work together and achieve concrete results.

The movement must also be ready to embrace modernity and rid itself from the cultural mentality that some things are better left unsaid and unquestioned. Taboos also have an expiry date. Not less than two years ago for instance, the local Curia officially declared war on secularism in its Victory Day homily (September 8, 2008) comparing the threatening idea of secularism to the Fascism of the 1930s and 1940s. Unrelated or otherwise, what came after was a slew of shameful indictments, fines and the potential imprisonment of persons who, knowingly or not, dared to challenge moral norms. Equally damning is the fact that to this very day Maltese society continues to be denied basic liberties such as divorce and finds itself deeply mired in social inequality and a general lack of broadmindedness perpetrated by the powers that be. It truly is a bitter irony for all those who genuinely believed that accession in the European Union would usher a new Renaissance to realise that after six years of EU membership we still do not enjoy comparable rights to those of our European counterparts.

On Church-State relations Muscat hit the nail on the head when he claimed that whilst a steadfast friendship should be maintained both entities are wholly separate in that they do not share any political or moral allegiance to one another. Incidentally, however, Joseph Muscat’s reluctance to go the whole hog on divorce and offer instead a free-vote on the contentious issue has sparked further debate, particularly on a future Labour government’s willingness to adopt this civil right. Whilst one can understand that on moral issues one should not be forced to vote against his or her own personal ethic, it is our firm belief that the current position should be reconsidered, especially in light of the commendable declaration by the Labour leader that the majority must never decide for the minority (although it is highly doubtful whether those in favour of divorce are actually in the minority). After all, Labour did not shy away from decriminalising homosexuality and giving women voting rights even though these measures were highly controversial in their day and age.

Progressivism however should not merely be construed as being analogous to social liberalism. This is a common misconception. More than just an ideology, progressivism encompasses an attitude towards the world of politics that is far less bleak than the divisive dichotomy of liberal versus conservative which tends to dominate popular politics. Progressives must also look to mending today’s decaying economic structures and reversing environmental degradation. In a blatant case of ‘strong with the weak and weak with the strong’, government’s short-term answers to shoring up the spiralling deficit have primarily been based on transferring State monopolies into private hands and ushering a punishing regime of indirect taxation and hidden tariffs. Backtracking on its promise to make sustainable development the core of its five-year program, it has created a monster out of MEPA and shows no shame or regret in defending the use of polluting technology. As a result, citizens feel dejected and have legitimately forgotten that government can be used as a force for good. Good governance cannot possibly be conceived when people are removed from the equation, leaving the ruling party widely exposed to special interests and powerful lobbies. Such a system is devoid of the checks and balances necessary for a democratic society to function properly and transparently.

Change is a difficult endeavour for any one party to achieve on its own. It requires ambition and an unfaltering conviction in the face of dogged opposition by those who fear it. This is why working together in a spirit of pluralist democracy becomes all the more essential. Any movement driven by the idea of change must not neglect reality, however. Whilst it is good to dream, for ideas are born from dreams, one must learn to walk before one can begin to run. In this sense, a movement of progressives and moderates (an unlikely pair for some) can provide harmonious equilibrium between temperance and radical action. This is not to say that both ends of the spectrum should cancel each other out but that there is likelier chance of success in achieving the common aims that they both share by working together. After all by squabbling amongst ourselves we can only nurture the arrogance and mismanagement that has taken Castille by storm. It is time to forge a better future for our country and its people. That time is now.

This article appeared on IDEAT Journal Vol. 1, The Road To Progress, published by Fondazzjoni Ideat April 2010, authored by Andrew Sciberras.

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The Regressive Society II

If there is something this nation truly excels in, it is regression. Well, there's apathy too - but I shall speak about that later on. Admittedly, these blog-posts are akin to the insufferable rants of the poignant armchair critic but this regression I speak of is so stifling and in-your-face that a rant or two is the only thing you've got to help you wind down. I see that fellow blogger James Debono is suffering from similar symptoms and has already coughed up the good old cyber-rant to keep his cool. Sir, I salute you. But believe you me, unlike the British, I don't crave disappointment (kudos to Bill Bailey whom I salute also).

Monism, intolerance and close-mindedness

If you know any better terms which summarise this country's relationship - legal, political, social and cultural - with freedom of expression, other than the above, please let me know. I'm a bit of a legal-beagle and thus far I have yet to see a more concise, yet all-encompassing, interpretation of the right to free expression than that expounded by the European Court of Human Rights. First of all, the Court so declared on countless occasions, that without free speech there is no democracy:

“Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment.” (Lingens v. Austria 1986, par. 41)

Second of all, whereas limitations or restrictions of this right are permitted, especially when it comes to the dissemination of hatred and violence, these must be interpreted narrowly:

“Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.” (Observer and Guardian v. UK 1991, par. 59)

But the best interpretation I've seen was given as early as 1976 (folks, that's 34 years ago now):

The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘democratic society’. Freedom of Expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.(Handyside v. UK 1976, par 49 - emphasis added)

And there I was, thinking that the above judgements would in some way apply to us or would be recognised by the State's institutions - especially by the judiciary. No, instead we had plays banned; musicians, authors and editors arrested and arraigned; television producers fined and prosecuted; books placed under lock and key at University of Malta because of their "immoral content" and more. When I learned that Stitching, the play banned in Malta, was classified as 14 and over in Edinburgh I didn't know whether to laugh or cry. This pretty much indicates that censorship has become the rule and free speech the exception. If this is not regression than I don't know what is.

The rise and rise of Jingoism

Not only have the racist comments and political rhetoric against asylum seekers persisted but now it seems we have adopted a policy of selecting which of the immigrants get to stay and those that get turned back to the Libyan hell-hole on the high seas - the armed forces, of course, acting as judge and jury in this affair. This is not only a clear violation of the Geneva convention but also of basic human rights: the right to asylum and refuge - all the more so now that UNHCR offices in Libya have been shut down by Muamar. These policies are government-endorsed and hence do not merit any inquiry or investigation. The opposition, through its silence and tacit acceptance of such policies, is equally guilty and is therefore in breach of its own statute. I am appalled by such actions and consequentially ashamed of my country.

The moral crusades begin

Out of the blue, the controversial politician known as JPO, submits a private members' bill on the introduction of divorce...something PL should have done since Muscat got elected leader in my opinion. But this basic civil right is still a taboo for moral crusaders, primarily the Church, and we can expect that all hell is going to break loose now that the bombshell has been dropped. I fully agree with the Church's right to express itself against divorce and its right to put up billboards advocating against its introduction (although "Id-divorzju Alla ma jridux" is pathetic). What scares me are the members of parliament, the majority of which I believe, are too confessional, close-minded and scared shitless of losing votes, to vote in the interests of the growing minority who need divorce to start afresh and close a chapter on past mistakes. This is why I have begun to question whether endowing our 69 honourable men and women with the power to introduce this right is the right thing to do or sheer folly. Also, will the Church speak up against the ill-treatment of asylum seekers by the State or is divorce more worthy of divine condemnation than playing with the lives of human beings?

The icing on the cake: Apathy

In conclusion, it seems that we've become a country of intolerant, close-minded, moral-crusading jingos but nothing could be more saddening and disheartening than our growing apathy towards this state of affairs. I refuse to acknowledge that the above adjectives define my country and who I am by virtue of my nationality. It certainly isn't what I want for Malta - this is not the Malta I want to live in. You know, a particular politician once said that he wished Malta and the Maltese could be more like Iran and the Iranians when it comes to upholding moral values. To my knowledge several thousand Iranians, mostly students, fought and died for their rights and to end a fundamentalist dictatorship. In Malta it seems like we don't even care about anything any more. Fellow peers and students have come to believe that protesting is worthless and solves nothing and are afraid that it will be tainted by partisanship so best just to shut up and ignore. At least there are those few who have the guts to act and are a beacon of hope such as the Front Against Censorship, whose funerary procession symbolising the death of the arts I shall attend next Saturday.

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Where to draw the line? - Monotheism in Politics

It seems that the Maltese saga on freedom of expression has taken another twist recently. This time it was a Labour MP who was part victim, part instigator. It gets all the more confusing considering that this particular MP is simultaneously in favour of censorship on certain issues. But the crux of the matter is whether MPs should be free to vote against the core principles pertaining to the political party they represent.

Let me state from the outset that I do believe, quite strongly in fact, that MPs should be free to voice their personal opinions and vote against their own party. British Labour MPs being "whipped" into voting in favour of an illegal war is a case in point. There is indeed honour, respect, justice and a great dose of courage to be found in straying from the party line when the time calls for it. Who cares for a bunch of yes-men anyway, except for the party leaders and die-hard loyalists ("Jekk qala l-Prim mela tajba zgur") ?

But the recent local incident took matters to an opposite extreme. Let me put it into context. Generally centrist parties such as Nu-Labour or the newly fashioned Con-Dem tend to advocate diplomacy and a respect for international law over irrational warfare. Let us say their core principle on such matters is X. Yet the Nu-Lab leadership wanted to pass motion Y (aiding and abetting the "War on Terror") which is thoroughly dissonant with X. The virtuous MP would have voted against Y and rightly so. Y was not the reason he chose Nu-Lab as his political abode. Here the Partit Laburista is subtly pushing in favour of core principle X (civil liberties, e.g. divorce) but a select-few individual MPs will openly vote against X and push in favour of Y!

Which brings to question why certain MPs chose a party that advocates X when they individually pursue a belief in Y. People will naturally begin to question the party's consistency and resolution to put into practise that which it believes in. Yes it is good to open up and yes it is good to do away with purist dogma but somewhere a line needs to be drawn. Diverging opinions are always healthy but too much of them will cause nothing but trouble. You will end up with a party with many beliefs but no soul.

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La Bella Figura

"What is a good Catholic? A good Catholic, traditionally, is someone who kept their mouth shut, their pocket-book open, paid, prayed and obeyed, was docile, went to mass, obeyed all the commandments and went to confession on a regular basis. For the most part this was ritualized: obedient and quiet. But a good Catholic is not that at all. A good Catholic is a Catholic in the model of Jesus Christ; a revolutionary - someone whose not afraid. Someone whose not afraid to get up and speak the truth. Remember, the only time Christ got angry was when he went to church." - Father Tom Doyle, Canon Lawyer and Historian (from the 2006 documentary 'Deliver us from Evil').

It seems some what imprudent of me to pass judgment on a religion I do not adhere to. Nonetheless, I must applaud the wisdom of Fr. Doyle and the courage it took to speak those words. Father Tom Doyle is a leading activist in the fight against the Church's cover-up of pedophilia by the clergy in the US and for that he was denied any chance of furthering his career in the Church. Because behind the pedophile there is a far more sinister truth. It is a system of cover-ups, lies and deceit perpetrated by Bishops, Cardinals and Church-leaders, including the Pope himself, who care more about their own image and the image of the institution they belong to than the victims of sex abuse, many of them children.

This stems from the profound belief in "la bella figura" doctrine - or "good image". This is the belief that no matter what happens one has to keep up appearances which according to veteran Vatican analyst John Allen is "undeniably influential in Vatican psychology" (see: All the Pope’s Men: the Inside Story of How the Vatican Really Thinks). Whereas there is no wrong in beauty, it is absolutely shameful to exploit a concern for la bella figura to cover up mistakes, justify inaction, or rationalise a refusal to change bad policies.

This philosophy is also deeply rooted in the psyche of the Maltese Curia. Take for example Fr. Mark Montebello and the effort that has been made to shut him up for speaking his mind and for defending the truth. Why are our roads only resurfaced and maintained when the Pope comes for a visit? And what have we to say about the Hal Luqa monument?

I find it truly hard to believe that this is what Christ stood for.

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The party-union link

“What is remarkable about the party-union link is how much it has been underestimated by social democrats themselves. The ‘golden age’ was made possible by many different components, but one of them was certainly successful party-union links: these were instrumental in forging governmental coalitions that enhanced women’s rights, gave employees a say in the workplace and secured safe work conditions for employees. Even today, and despite all the changes that the link has gone through, unions continue to form the backbone of the progressive movement in a number of countries.” - Dimitris Tsarouhas of Bilkent University in Ankara, Turkey.

Unfortunately, Maltese trade-unionism is in shambles. The two major unions, GWU and UHM, are undoubtedly linked to the two major political parties but not for the right reasons.The links that exist today seem to be based on the premise: "I scratch your back, you scratch mine" which is a major blow to a unions' credibility. This is not to say that the GWU and UHM do not serve the interests of their members. But the partisan link, at times, transcends the political one - the one that truly matters most. In this way partisan submission triumphs over workers' collective interests.

If we want a progressive society in our country the above unions as well as the political parties themselves need to reassess their strategic links and forge alliances based on improving workers' rights not on partisan back-scratching.

Similarly, these strategic links have also taken hold in KSU where partisan interests triumph over student rights. And there I was, thinking that my generation knew better. (Yes, I'm pointing my fingers at SDM).

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The saga continues...

Yesterday I witnessed first-hand the frustration and sense of injustice that lies ahead in my career. Similarly, I witnessed my country's fast-forward approach towards oppression - or shall I say a rewind towards the Dark Ages? It's as if our membership in the EU is nothing but a dream for us who believe that Europe is much more than just access to funds and less border controls. The truth is that there is absolutely nothing European about Malta.

Last month, on February 17th to be precise, the Court of Magistrates began hearing the case Il-Puluzija vs. Mark Camilleri. We heard the University Precincts Officer claim that KSU officials approached him with the 'offending story' - a claim which was vehemently denied by KSU but not by the Precincts Officer who testified under oath. We heard the Rector claim that he ordered the destruction of the Realta` publication, without even informing Mark about it, because such was his legal duty (and he wasn't imposing his moral views on anyone, you know). He also told the Court, in a brazen but calm demeanor, that university students cannot tell fact from fiction (since the story was published on a newspaper and followed an interview with the MUT chairman John Bencini it might easily be construed as a factual article). He also dismissed the notion that in the past stories used to be published in newspapers - to his knowledge no such things ever occurred. Unfortunately the great wisdom and wealth of knowledge came to a halt and the case was to continue on the 16th of March at 11:30am - a date and time that was specifically chosen by the Honourable Court so as to have ample time to continue hearing the testimony of various witnesses.

That was yesterday, a day which came and went as any other. It was the Librarian's turn to testify and this should have been followed by the testimony of Mark himself and Alex Vella Gera, the author of Li Tkisser Sewwi - a story penned in 1997. The librarian said many things but the crux of his testimony was that all students under the patronage of the UoM, and therefore also Junior College students, had access to the University library. This is an interesting revelation.

The Court, however, had other matters to attend to and the case had to be deferred to a later date. Frustration kicked in - an emotion which apparently I must get used to in my professional career. The defence counsel related how one of the witnesses lives abroad but to no avail. The moment Vella Gera's name was mentioned the prosecuting officer grinned and claimed "thanks a bunch for telling me this, Dr." He swiftly exited the Court room and asked Vella Gera to go to the police station for questioning. Vella Gera, who came of his own free will to give his testimony on his own story, now faces the same charges brought against Mark Camilleri. It seems as if the police have absolutely nothing better to do in this country.

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Where is Europe headed?

It seems that the opportunities provided by the Lisbon Treaty are going to waste. It is still early days for the new president and foreign representative but the choice of Van Rompuy and Ashton in particular speaks volumes. It is another tell, or big hint if you will, of the continuous struggle between those that desire a strong Europe, capable of setting a global agenda, and those that have an interest in seeing the EU fragmented and weak.

But this talk of Europe as a "global superpower" has bad connotations, doesn't it? It brings to mind military force and the lust for global hegemony. Not necessarily so. In a post-American world we need a strong Europe for many reasons. Europe can diplomatically assert itself in the Middle East and for once snub its trans-Atlantic buddy by taking Israel to Court for war crimes. Europe must never forget that it once was a shining beacon of human rights. Europe's miserable failure in Copenhagen (home turf) was also a disaster. Where is the Europe that does not give in to big industry and greedy states such as the US and China? Unfortunately, Dalli's recent impasse on the cultivation of GMO's has set a dangerous precedent and cast a dark shadow on the Commission.

I think the time has come to swallow our pride. If Europe wants to be strong, it needs to be united. It needs to have one face and if it wants to steer back to the course of economic, social and environmental prosperity, both internally and globally, I believe that the answer is to take European federalism to the next level.

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Hello, is there anybody in there?

It is about time that the PL realises that by simply banking on the PN's internal problems will in no way lead it to victory. History has shown over and over again that the PN excels in solving internal/party-related problems and winning back dissenters (even by deceit if needs be). Such is their thirst to remain in power ad aeternum. The PL cannot convince the electorate to vote for it simply by boasting that it is more united than the PN. It needs to show that it is a much better alternative. I'm not suggesting that it has to solve all the government's problems, but merely that the populist zeal, if not tamed by firm ideological convictions will lead it nowhere.

P.S. A small message to those within the party fighting to have divorce on the electoral manifest: keep fighting.

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It-tieni kritika

Milux qrajt dokument ippublikat mill-SDM intitolat "Il-Pużizzjoni (recte, Pożizzjoni) tac-Ċentru Alcide De Gasperi Rigward iċ-Ċensura". F'dan id-dokument l-SDM tqajjem il-punt validissmu li d-dritt mhuwiex assolut imma jikkorespondi miegħu obligazzjoni. Dan joħroġ mill-prinċipju li fil-waqt li l-bniedem jitwieled ħieles, ma jistax jirfes fuq id-drittijiet ta’ ħaddieħor. Aktar minn hekk nieħu pjaċir naqra li l-SDM irrikonoxxiet li “huwa aċċettat fis-soċjeta` moderna u sekolari tal-llum illi mhux kull m’hu kontra l-morali għandu jkun illegali” u nittama li dan it-twemmin dejjem jiġi ikkunsidrat fid-deċiżjonijiet jew azzjonijiet li din l-għaqda taddotta.

Naturalment, dan kollu qed jingħad fil-kuntest taċ-ċensura u naħseb li wieħed jista jassumi li l-argument li l-SDM trid tqajjem permezz ta’ dan id-dokument huwa li l-liberta` tal-espressjoni għanda l-limitazzjonijiet tagħha. Tagħmel proprju dan billi targumenta li l-bażi tal-limitazzjoni hija msejsa fuq il-“ġid komuni” – kriterju li jitqajjem diversi drabi tul id-dokument. Fi kliem ieħor dan iffisser li jekk espressjoni jew opinjoni ta’ persuna jew grupp ta’ persuni tkun ta’ xkiel għal-ġid komuni mela huwa ġustifikabli li din it-tali espressjoni jew opinjoni tkun iċċensurata mil-Istat jew awtoritajiet pubbliċi – is-suppost gwardjani tal-ġid komuni.

Ippermettuli nirrepeti fuq fuq dak li diġa` għidt fil-kitba tiegħi “Profs. Kevin Aquilina interview on the Insiter magazine: A critique”. Il-Qorti Ewropeja tiġustifika kwalunkwe` limitazzjoni fuq il-liberta` tal-espressjoni fuq tliet krierji importanti: (1) il-limitazzjoni trid tkun preskritta fil-liġi; (2) il-limitazzjoni għanda jkollha għan leġittimu; u (3) l-eżerċizzju tal-limitazzjoni irid ikun neċċessarju f’soċjeta` demokratika. Anzi, din l-interpretazzjoni ma’ ħarġitx arbitrarjament mid-diskrezjoni tal-Qorti imma toħroġ proprju mill-lingwaġġ tal-Artiklu 10.2 tal-Konvenzjoni Ewropeja:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Dan ifisser li l-Qrati tagħna għandom, mela le, jieħdu in konsiderazzjoni jekk xi espressjoni hijiex abbużiva u kontra l-ġid komuni imma aktar minn hekk jridu jqisu jekk l-impożżizzjoni tal-limitazzjoni hijiex neċessarja b’tali mod li toħnoq id-dritt fundamentali tal-espressjoni libera f’soċjeta` demokratika, jew biex nuża l-kliem tal-SDM stess, soċjeta` “moderna u sekolari”. Jekk ma jsirx dan l-eżerċizzju mill-ġudikant, u jitlef mil-mira tiegħu l-iskop u l-ispirtu tal-prinċipju fundamentali, jista jagħti lok għal interpretazzjoni legalistika ristretta żżejjed ta’ dan id-dritt (bħalma hekk għamel il-Profs. Kevin Aquilina fit-trattament tiegħu tas-suġġett). Agħar minn hekk il-ġudikant ikun qed jippermetti l-aġir arbitrarju u oppressiv tal-Istat.

Wieħed ma jistax ma jsaqsiex jekk verament l-każ tar-Realta`, d-dramm “Stitching” u diversi każijiet simili li jolqtu b’xi mod il-liberta` tal-espressjoni abbużaw b’xi mod mil-ġid komuni. Kif naraha jiena kien pjuttost il-kuntrarju. Jekk xejn tqajjem fuq livell nazzjonali dibattitu fuq l-arti u ċ-ċensura. Tant hu hekk li l-politiċi ħadu nota ta’ x’qed jingħad u wieħed jittama li fl-iqsar żmien possibbli naraw modernizzar xieraq (jiena ngħid l-abrogazzjoni) tal-liġijiet antikwati marbutin maċ-ċensura, partikolarment it-tifsira legali ta’ “pornografija”. Mill-perspettiva ta’ student tal-liġi, ċertament li żvilupajt interess akbar fis-suġġett u l-istess, naħseb, nies oħra. Studenti universitarji ħadu l-inizzjattiva li jiddibattu dan is-suġġett fil-kampus u forums speċjali. Faqqset ukoll l-injoranza ta’ ċertu nies u l-bżonn ta’ aktar edukazzjoni u toleranza aktar wiesgħa` fil-pajjiż.

Dan l-aħħar bdejt nirrefletti il-għala letteratura oħra, li tuża l-istess lingwaġġ, hija permissibli, fil-waqt li l-istorja “Li Tkisser Sewwi” qajmet kjass sħieħ. Staqsejt jekk il-Maltin jistħux il-lingwa naturali tagħhom u rriflettejt fuq l-ironija tal-każ fejn il-kliem li hemm miktub, għalkemm wieħed jista jsejjaħlu ‘pastaż’ jew ‘oxxen’, huwa lingwaġġ komuni fost ħafna Maltin ordinarji. U għalfejn, allura, awtur m’għandux ikollu d-dritt li jirrapreżenta r-realtajiet ta’ madwaru, anki jekk dawn jniggiżu u/jew joffendu xi persuna jew grupp ta’ persuni? Dibattitu ħaj fuq is-suġġett u dejjem ta’ ġid f'soċjeta` demokratika u Ewropeja u ma nħossx illi wieħed għandu għalfejn bħan-nagħma ideffes rasu fir-ramel jew joqgħod lura milli fl-apert jiddiskuti temi attwali li jistgħu ukoll ikunu ta’ġid intelletwali u għas-saħħa morali.

Jiena nemmen li ċ-ċittadini, partikolarment dawk li ffaċċjaw xi forma ta’ ċensura, m’humiex qiegħdin jsostnu li għanda tirrenja l-anarkija. Nifhem li kullħadd, ħlief xi erba` mġienen, jaqbel li għandu jeżisti limitu, speċjalment fuq diskors intenzjonat biss biex jppromwovi l-mibgħeda u l-vjolenza jew il-korruzzjoni ta’ nies vulnerabbli. Il-prinċipju għandu jibqa li wieħed irid jiffaċċja l-konsegwenzi legali ta’ dak li jkun ippublika. Pero` l-limitazzjonijiet huma l-eċċezzjoni li għandom jitħadmu b’kawtela u ristrettezza kbira proprju għaliex huma eċċezzjonijiet u mhux regoli prinċipali. B’mod speċjali l-moralita` pubblika m’hijiex xi ħaġa statika u lanqas dommatika iżda hi pjuttost fluwida li tinbiddel minn żmien għal żmien dipendenti minn influssi komportamentali etiċi-soċjali u dawn jinneċessitaw kambjamenti fil-leġizlazzjonijiet ta’ pajjiż, b’mod li l-liġi, biex tkun verament dinamika, jeħtieġilha taġġorna ruħa mat-tibdiliet li jkunu qed iseħħu fis-soċjeta` fiż-żmienijiet differenti.

Nota Bene: Kif tosservaw dawn il-ħsiebijiet ħażżisthom bil-lingwa Maltija u dan mhux mingħajr skop. Għamilt hekk biex kontra il-politika innovattiva, iżda retrograda, tal-Universita` li kull ma jmur qed tbarri lill-Malti, nagħti importanza lill-ilsien pajjiżi.

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Common heritage

Last Friday I attended Fondazzjoni IDEAT's debate on climate change. It was well presented, insightful and I left the event more informed on the subject than I was before. These are all pluses and a feather in IDEAT's cap. In this debate Malta's initiative on the environment and climate change in international fora were both remembered and praised, however the important question was asked: have we lost momentum? Arvid Pardo and Professor David Attard have become somewhat renowned amongst environmentalists and internationalists for their praise-worthy efforts at a UN level in ensuring (or at least trying to) that the environment (or aspects of it such as the sea bed) is treated as a 'common heritage of mankind' and not as a 'first-come, first-exploit' type of thing. This goes to show that tiny Malta can do a world of good and is not as insignificant as some project it to be.

However, as much as we boast of our endeavors, one must question and assess whether we practice what we preach right here at home. Before going to the debate I took with me two articles of law contained in the Environment Protection Act (Chapter 435). These are the following:

Article 3. It shall be the duty of everyone together with the government to protect the environment and to assist in taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner.

Try to let this provision of the law seep in for a moment. We all have a duty to protect our environment. It seems all to simple. In fact it is not truly so.

Article 5. The provisions of articles 3 and 4 shall not be directly enforceable in any court, but the principles therein contained are this notwithstanding fundamental to the Government of the State and those principles shall be employed in the interpretation of the other provisions of this Act or of any other law relating to matters governed by this Act.

Can you spot the difference? Whereas I have a duty to protect my environment it seems that I cannot enforce this duty in a Court of law if needs be.

If the environment is our common heritage and if we have a duty to protect it than why shouldn't we be able to act as its guardian by taking offenders (be they public authorities, land speculators, industrialists, corporations, or private citizens) to Court? Why is it that the government alone is entitled to act as our environment's guardian? Excuse me for being political in a treatise concerning the environment but I must say that government is doing a pretty horrid job. MEPA's role in environmental protection leaves much to be desired.

Citizens should be given the right to truly enjoy and protect their environment by means of judicial empowerment, if not directly, through environmental organisations which speak on their behalf by means of a class action. It makes no sense to dismiss a judicial action on the basis that the applicant has no personal and juridical interest in it. Harm to the environment, wherever it is caused and whomever causes it, is a harm caused to everybody and not only to persons in the immediate vicinity. Sometimes I wonder if persons in the immediate vicinity themselves have any say let alone judicial empowerment.

Allowing citizens and green-NGO's to attend MEPA hearings is a start but it is definitely not enough. No government should ever fear empowering citizens by strengthening their legal rights.

[Unfortunately none of the speakers in the panel had a legal background and thus the necessary expertise to answer this question].

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Profs. Kevin Aquilina interview on the Insiter magazine: A critique

Professor Kevin Aquilina (Head of Department of Public Law at the University of Malta) last December was interviewed by the campus-based Insiter magazine on the legal issues concerning censorship. In this interview (unabridged version here), Profs. Aquilina justifies the local censorship regime by adopting a close-minded interpretation of law and also quotes certain judgments on which he bases his argument in favor of censorship. The gist of his analysis is based on very simple logic (using public morality as an example):

1. The law says that an offence to public morality is crime;
2. The play "Stitching" and the short story "Li Tkisser Sewwi" offend public morality;
3. Therefore it is legally just and correct to censor and ban the play and destroy the publication containing the story

On Stitching

On the theatrical play Stitching the Professor quotes the powers and functions of the Board of Film and Stage Classification (as derived from subsidiary legislation 10.17), one of which is to completely disallow the public exhibition of any film or stage production if they breach other provisions of the law. He then goes on to say that after reading the script of Stitching he came to the conclusion that it breaches "several provisions of Maltese law" and consequently the Board in question would have been breaching the law every time the play was staged. Therefore they were fully correct to ban the play. The Professor, however, did not quote the laws which prohibit this production from public exhibition and does not even bother to consider whether their operation are both justifiable and necessary in a democratic society such as to merit the exclusion of a human right: freedom of expression.

On Freedom of Expression

The Professor claims that "Censorship is prevalent in several states and indeed one cannot conceive of a state without having censorship laws." He goes on to say that "freedom of expression is not absolute but subject to a number of limitations" and that any restriction must be "permitted by law". This is all true for one cannot speak of rights without speaking of obligations. However, he fails to point out that for any limitation on freedom of expression to kick in there must be, according Article 10 of the European Convention of Human Rights, three crucial factors (the first of which he cited):

1. The limitation must be prescribed by law;
2. The limitation must pursue a legitimate aim;
3. The limitation must be necessary and justifiable in a democratic society

In the great majority of ECHR judgments, if not all, concerning a limitation or violation of Article 10 of the Convention the Court always takes great care to assure itself that all these factors are met before coming to a decision whether the limitation was just or indeed a breach of human rights. The third factor listed-above is the most crucial, for it is very easy to prescribe a prohibitive law on the basis that it pursues a legitimate aim (say to protect public order, health, morals and the reputation of persons from unfounded allegations) but that law must be applied only in so far as it is absolutely necessary in a democratic society. Otherwise there is a great risk that the State would be acting arbitrarily.

Profs. Aquilina seems to look at freedom of expression in reverse without taking any heed on how this right is interpreted by the Courts, and its fundamental importance as a basic cornerstone of democracy. He does not point out that Article 10 has been interpreted by the ECHR as a freedom not only to express ideas or opinions which are favorably received or which are inoffensive but also to those ideas or opinions "that offend, shock, or disturb the State or any section of the population." The Court also points out that such freedom is intrinsic in a democracy for "such are the demands of pluralism, tolerance and broadmindedness" and that "Those who create, perform, distribute, or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society - hence the obligation of the State not to encroach unduly on their freedom of expression." (See Mueller and Others v. Switzerland and Handyside v. The United Kingdom).

On Li Tkisser Sewwi by Alex Vella Gera published in Realta` Edition 8

On this case the Professor claims that he was uncertain as to which provisions of the law were used to justify the banning of the publication but after reviewing the story in the said publication he cites the following laws which in his opinion merit its censorship:

1. Vilification of the Roman Catholic Apostolic religion (Art. 163 of the Criminal Code);
2. Offence against public morals committed in public domain (Art. 209 of the Criminal Code);
3. Uttering obscenities or indecency in public (Art. 338(b) of the Criminal Code);
4. The publication of material offensive to public morals (Art. 7 of the Press Act);
5. The sale of offensive material (Art. 19 of the Press Act);

In truth, the charges brought against Mark Camilleri as editor of Realta` were two:

1. The publication of pornographic/obscene material (Art. 208 of the Criminal Code); and
2. The publication of material offensive to public morals (Art. 7 of the Press Act)

Here again the exercise the Professor adopted is similar to the one he used to justify the censorship of Stitching - that is by interpreting the law in the most rigorous and restrictive manner possible and consequently applying the facts to such rigorous interpretation. Again, he fails to at least consider, prima facie, whether the prohibition and destruction of the publication was necessary in a democratic society. He thus concludes the "University authorities are bound not to permit the distribution of the offending edition of Realta` on campus once they are aware that its content contravenes the law." Yet he cites no law as to whether the Rector has the power and legal competence to act as judge and jury and consequently take such an action and he does not question whether such action was taken fairly and in line with the principles of natural justice.

Wingrove v. The United Kingdom and Otto-Preminger v. Austria

The Professor cites the above to judgments to argue that the ECHR itself permits a limitation of Article 10 in the case of blasphemy. Yet, he did not cite an extremely important declaration by the Court in this regard. In Wingrove, the ECHR said the following:
The final European supervision is all the more necessary given breadth and open-endedness of the notion of blasphemy and the risks of arbitrary or excessive interferences this entails. Prior restraint in the present case calls for special scrutiny. The blasphemy law does not prohibit the expression of views hostile to Christian religion or of any opinion offensive to Christians. The law seeks to control manner in which views are advocated. The extent of the insult to religious feelings must be significant. A high degree of profanation is required as a safeguard against arbitrariness (the case in question was about a film portraying the crucified Christ in acts of an overtly sexual nature).

Today the UK only incriminates actual threats towards religious believers as opposed to insult and permits discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system (Racial and Religious Hatred Act of 2006)

The Otto-Preminger case was also highly criticized for coming to the decision that Article 10 was not breached on the assumption that religiously offensive speech “can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them." A report drafted by the United Nations Human Rights Council (Tenth Session March 2009) argues that "This empirical claim, that Catholics are made less free by the existence of blasphemous movies, seems highly implausible given the fact that in this case the Catholics were in the majority. The Court adduced no empirical evidence in support of this claim."

Lautsi v. Italy

The Professor criticizes this case, arguing that the ECHR "has imposed its own morality on the state of Italy." No consideration is given as to whether Italy has actually imposed its own morality on the entire population by displaying the cross - a symbol of Christianity, in public places. In this case the court qualified a public place as a place where a person has no other option but to attend (e.g. schools, hospitals, etc.). Therefore the ridiculous assumption that the cross will also be removed from Churches or other private institutions is completely unfounded.

The Court held:

The State was to refrain from imposing beliefs in premises where individuals were dependent on it. In particular, it was required to observe confessional neutrality in the context of public education, where attending classes was compulsory irrespective of religion, and where the aim should be to foster critical thinking in pupils.
The Court was unable to grasp how the display, in classrooms in State schools, of a symbol that could reasonably be associated with Catholicism (the majority religion in Italy) could serve the educational pluralism that was essential to the preservation of a “democratic society” as that was conceived by the Convention, a pluralism that was recognised by the Italian Constitutional Court.

On the Swiss minarets referendum

I find myself in full agreement with Profs. Aquilina's views on this issue, particularly that "the majority cannot take measures that contravene human rights and fundamental freedoms."

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