Archive for February 2010

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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The regressive society

The recent debate on free speech and abortion has really shed light on how regressive Maltese people, politicians especially, can be. If there ever was a time in the recent months, if not years, wherein progress lost momentum, this is it. It is ironic, absurd, and quite frankly shocking, that our membership in the EU and all this talk on progress and progressive movements has made things all the more sour for our nation and its people. When we should be moving forward, we continue to inch further backwards. Why?
The reasons have been highlighted on this blog several times before. My fingers cannot but point to an ever more powerful and dogmatic Church; a distraught and fragile government which uses controversial issues to it's advantage, that is to say as a means of alienation and fear-mongering - most times with a little help from its friends in high places; an opposition that is talking and contemplating but too cautious (or too scared?) to really challenge the status-quo; and last but not least, us miserable people who recognize that things have gone wrong but have just given up or just can't be bothered about it any longer.
With regards to abortion, it's rather evident that politicians have adopted a habit of talking out of their arse, without really taking heed of what they're saying and the consequences their ideals have if they are ever passed into law. We have heard of care-orders on fetuses and of arresting pregnant women who wish to travel with the presumption that they seek to obtain a certain type of service overseas. Someone even boasted that he managed to halt one such woman. It is not enough that abortion is a criminal offence, punishable by imprisonment. We just have to make things worse. The consequences of such policies are so obvious that I cannot comprehend how these people represent us in what is supposedly the highest institution of the state - parliament. I wonder if they ever gave thought to human rights, the right to privacy and freedom of movement in particular, as well as to the fundamental principles of the EU: the free movement of persons and the right of any EU citizen to seek a service from another EU state. Tell me, what right does the State have to stop women from travelling on a presumption or allegation of their male partner or husband that they are travelling to have an abortion? The terms 'police-state' or 'morality police' would really be an understatement in such circumstances. What could ever justify such action? Good morals? Prevention of crime? Perhaps it would be justifiable under our perverse notion of 'conspiracy' which the Courts of Injustice have employed - whereby intention alone is enough to put people behind bars. Tough luck for all them first year law students which are led to believe that a criminal intent must always be coupled with a physical action for a crime to exist. Unfortunately the Constitution makes an exception to freedom of movement which exclude persons from internal or external movement on grounds of 'morality' whatever that may be ('morality', 'good morals' or 'public morality', are an exception for everything by the way). I say 'unfortunately' because, as usual, in Malta the exception always takes precedence over the main fundamental principle, even if it is a basic human right.
Which brings me to censorship. You should know that there are two types of censorship, one being more obvious and in your face than the other. The obvious type is censorship before the fact, such as when a censorship board denies a theatrical group their right to stage a play or when the police vet rock lyrics to see what can be sung and what cannot during Carnival, believe it or not. The less obvious form is when you threaten a 21-year old student and peer of mine (not of KSU/SDM stock - obviously) with imprisonment for publishing a fictitious but 'dirty' story in a students' journal. On this issue our politicians, bar one or two, have remained mostly silent because they have others to pave the road to regression for them such as the university rector, the police, the priests, the journalists, the psychologists, the chauvinists, the feminists (supposedly), the misogynists and the ignorant. Here again, the exceptions (morality and obscenity) have become the norm and the principle (freedom of speech) the exception.
Dear friends, readers, critics and fellow dissidents, this is a very sad but very true state of affairs that post-EU Malta has found itself in. Yes, it is true that on the face of it things are not all that rotten. We have a reasonable degree of freedom in Malta, we have a sense of peace and some of us may even be blessed with very cushy lives. Such things may not even affect us mere observers, lucky enough not to have wombs or to be on the receiving end of censorship, in the slightest. But there are stupidities like these that put the wheels of motion in reverse.
Sitting on my ass and writing this has been proven to be a very easy and pleasant task. It's been a while since my fingers had the pleasure to translate my inspiration into readable but fashionably pessimistic verse. To my defence, pessimism is a natural symptom of a regressive society. But I cannot profess to be a bleeding heart progressive if I have lost all hope. And although it's become cliche` and naive to say this: there is nothing false or wrong about hope. Just like the advocates and pontiffs of regression can do things to take us back so too can we take action to move forwards. But to do this we have to act, we have to make our voices heard, we have to dissent and protest if need be, we have to write to our politicians - or even better - become the politicians. We have to abolish the status-quo and we can do this better together, rather than with individual and isolated voices. We may disagree on some things but let us at least work together on the things we agree upon.

See you on the 24th.





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