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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