Archive for 2012

Judicial Reform

We've probably heard it all before in 2001; that the judiciary is in need of a complete overhaul. Nothing much has really changed though, if at all. During that time I was but 14-15 years old, probably studying O-Level Chemistry and Biology, growing my hair, headbanging to Opeth and Beheaded and not giving too many shits about current affairs. In that rebellious spirit I was adamant to steer away from law, aiming for Medicine & Surgery instead, because it was bloody intriguing (pun intended). Horns up and all that. 

But times changed and the "family footsteps" I have indeed followed. Just one tiny step away from being a fully-fledged lawyer interested in litigation, the very foundations of the justice system have been rocked once again (can't wait to see next year's B.Comm or Architecture & Engineering buscade banners) and this time it stings

So here's my two-cents about judicial reform. 

A Universal and Objective Truth 

First and foremost, no system will ever guarantee foolproof protection against corruption and bribery. The vice of corruption in inseparable from big fat human mistakes which not only destroy one's career but - far worse - one's integrity, reputation and honour. Having said that, there may be ways that can offer a greater guarantee of appointing more suitable members to the bench. Or at least, certain manners of appointment may offer a greater degree of public trust in such a vital institution. 

The Current System 

The current system, enshrined as it is in our Constitution, provides that both Judges and Magistrates are appointed by the President in accordance with the advice of the Prime Minister. In other, words, Judges and Magistrates are appointed by the Prime Minister of the day. In other other words, Judges and Magistrates are either appointed by a Nationalist or Labour administration. These are, pretty much, political appointments limited only by certain factors, such as that Judges may only be appointed after he or she has practised law  as an advocate in Malta for an aggregate of twelve years (seven for Magistrates). Nonetheless, the allegation/insinuation/perception (call it what you will) that Judges and Magistrates are either blue or red-eyed is not that wide off the mark in the whole scheme of things, even if they have to exercise their functions and conduct themselves (both judicial and personal - ideally) in a manner free from all political bias or connections whatsoever. For the maxim that justice must not only be done but must also be seen to be done, the current system does not offer such a solid guarantee. Furthermore, the current system offers no guarantee of appointing members to the bench that are truly well versed in the law, its interpretation and it's application to the facts of a case, resting as it does on a largely subjective decision of the Prime Minister and, presumably, his Cabinet. 

Democratisation of the Judiciary?

What if we were to adopt a system whereby members of the judiciary are democratically elected by a free and sovereign people? This would surely take the decision out of the politicians' hands and offer the greatest degree of public trust possible. I mean if a majority of people directly elect members of the judiciary then they must surely have trust in him or her. All pretence of subjective and political appointments would wither away. But the pitfalls of this system, promising though it may sound, are larger than its positive aspects - at least in my opinion. First of all, the judge would him or herself become somewhat of a "politician" susceptible to lobbying by major interest groups. We would have the Judge or Magistrate of the Chamber of Commerce or the Hunting and Trapping Federation to whom he or she would owe a certain fealty. The more wealthier lawyers, with the greater connections would surely have a greater advantage - even if he or she is a nincompoop when it comes to the law. This could be tempered by disallowing all forms of advertising, lobbying, endorsements and donations in the case of judicial elections - but that, in turn, could give rise to free speech issues. Secondly, holding nation-wide elections in a system where judges and magistrates are appointed "for life" (or rather until they attain the age of 65 years) would surely give cause to logistical and financial headaches. Whilst this is no reason to hinder democracy, it is, nonetheless, a real problem.

The Academic Judge

Another system, followed in certain nations of the Continent, such as Italy, Germany and Spain, is based on actually studying and obtaining a degree/doctorate (whatever) to become a judge or magistrate. This would require the creation of a specific "Judiciary Course" whereby holders of a law degree or doctorate would further their studies to become judges or magistrates in a competitive academic system. Here again, and if the selection process is truly fair and based on merit, the decision is taken out of politicians' hands. This is an interesting way in which to solve current shortcomings, for in one fell swoop it would decapitate political subjectivity and guarantee that the persons sitting on the bench are more specialised in legal interpretation and application. The problem here, however, is that if one where to immediately further his studies to become a judge or magistrate then he or she would be deprived of any *real* court practice. He or she would be more of an academic rather than a lawyer - not that there is anything really wrong in that , but as any budding lawyer will tell you - there is a veritable yet metaphorical ocean separating life at university/academic theory and the real nitty gritty of court practice. It is much like getting out of the frying pan and into the fire - at least until you manage to settle in. This anomaly could be tempered by keeping the twelve (or seven) years court practice requirement before being eligible to enrol for such a course; plus ensuring that any such judiciary course requires mandatory practice as judicial assistant or associate judge for at least one, if not two, years. Another issue would be that such a course would have to be very restrictive and, ultimately, competitive - opening only when a vacancy is imminent - and from which only the very best may pass. Major problems would arise if no one is interested in the job, or if only one candidate would apply. Nonetheles competition, even if nasty, is healthy. This is a system which one should keep in mind. 

The Representative Judge

Another way round to reforming the judiciary is one which I have previously advocated here. Whilst it still leaves the decision of appointment in the hands of politicians, it is taken away from the Executive and vested in the Legislature. In other words, members of the judiciary may only be appointed in the same manner by which they are impeached; that is by a two-thirds majority of the House of Representatives. Such a system would ensure a broad-spectrum of support and approval by all parties in the House and is surely a form of semi-democritisation of the current system. The vote could be preceded by a specific Parliamentary Committee, chaired by the least partisan person possible (maybe the Speaker or the President of the Republic himself) which nominates candidates in conjunction with the advice of the Commission for the Administration of Justice, the Chamber of Advocates and, why not, the Faculty of Laws (comprising the Dean and Heads of Departments). Politics would not be completely avoided and headaches/delays may arise if major disagreements exist - but it is a leap forward from what we currently have. 

Thorough Reform

Reform, however, cannot start and end with the manner in which we appoint members of judiciary. It has to be thorough and from the bottom up. Furthermore, judicial reform must be accompanied with major political reforms. Since Franco Debono said so much about this and, love him or hate him, he is right - I will spare you further reading.

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[Minimum] Discrepancies

Somewhat of an uproar has been caused by the recent PL declarations on the minimum wage. I use the terms "somewhat" specifically and "uproar" loosely because I am not entirely sure whether this particular round of annoying electoral propaganda and spinning is on everyone's minds to be quite honest. Nonetheless, terms like "wage-freeze" and "wage-gate" have been banded about bringing to mind a dark atmosphere of foreboding. The heinous and unspeakable crime? Joseph Muscat and his Labour Party have declared that, should they be elected in government, they will not increase the minimum wage but will reduce utility tariffs. Whatever the case, how interesting it is to see how easily people forget and how convenient convenience has become. 

First let us begin with the deeply-rooted notion that "MuscatPL" has established a political philosophy grounded in populism, a.k.a. "being everything for everyone". I wonder now whether such arguments may still be made by those whose sole agenda is driven by a personal hatred for the man. If Muscat is purporting to be everything for everyone would it not be rather obvious to advocate an increase in the minimum wage (or the establishment of the so-called 'living wage') for workers and, simultaneously, a reduction in utility tariffs for businesses end employers? For better or for worse, Muscat - and by extension the PL - have changed their minds and ditched the living wage proposal. Truth be told, this was never set in stone. In fact a article dated 18 November 2010 reports Musact telling employers [on the living wage]: 

"I am here with an idea and an open mind, asking you to join forces with me. I am ready to change my position as long as you too are prepared to shift yours towards the common goal of raising living standards."

But alas, it is very convenient to twist facts and to spin isn't it? 

Secondly, let us take a look at "MuscatPL's" policies on fiscal responsibility. Of course, Muscat and his party are the most fiscally irresponsible people on earth and should never be trusted. They want to take us back to "Mintoffianeconomics" coupled with wage-freezes, dire poverty, hunger and bailouts. Now here is MuscatPL, prepared to pursue a core party policy (reducing utility tariffs)  by sacrificing an increase in the minimum wage for the time being. The idea is obviously to boost the economy by lowering recurring business expenditure and, consequently, to lower the cost of living which has catapulted in recent years. This can reap beneficial rewards such as boosting the tourism and manufacturing industries and increasing employment. Now I am no economist, so I cannot say with any scientific precision whether this will work out in the long-term. But do you remember how often you used to ask MuscatP: "How?" Well here is just one answer. But alas, MuscatPL is still irresponsible. In the euro-crisis MuscatPL should have lowered utility tariffs AND raised the minimum wage. That would have been the more responsible route, surely. Speaking of Malta now not part of the euro and the rest of the world? I would like to know how it isn't all of a sudden. For while other countries are bludgeoning their populations with punitive austerity we are taking Muscat to task for not increasing the minimum wage.

Thirdly, I cannot fathom how we can so easily equate Malta with the Scandinavian countries. I'd love for Malta to become more Scandinavian, mind you. Excellent wages and the best social-safety net in the world. A quasi-socialist and liberal utopia. Leaving aside the fact that such countries impose heavy taxes on the rich and big corporations (50% +), they also have something that we surely do not: resources. Can you envisage, for instance, a flourishing oil industry in Malta? Or arms manufacturing? Car manufacturing at best but from where do we get the raw materials? And you know what? None of the nordic countries have a statutory minimum wage. Neither do Italy, Germany and Austria. The United Kingdom adopted the minimum wage in 1998 - not in the 70's. All minimum wages in these countries are regulated by collective agreements. Read here

Fourthly, it is interesting to see how we expect Labour to be a fully-fledged workers' party but to simultaneously move on with the times. True, the working-class struggle has been rekindled of late (assuming that Malta is part of the world that is) but I cannot understand how we expect PL to burn all bridges and become the arch-enemy of both business and employers and yet remain modern and mainstream. Please tell me which modern European socialist-democrat party speaks only in terms of working class -vs- bourgeoisie. I even doubt whether the most radical Greens and committed but forward-looking European Communists in the vein of GUE/NGL adopt such attitudes.  Like it or hate it, the fact of the matter is that PL is not only a government in waiting but has also to be seen as a government in waiting and not a radical left-wing party with nothing to lose. Like it or hate it incentivising business and investment can also benefit the working class. 

Now here's a little twist. Truth be told, I'm no major fan of this policy even though I do believe we need to tackle cost of living and energy poverty seriously. It has a "trickle-down" tinge to it which tends to put me off. I am also a firm believer in the idea of spending more - not less - as a means to boost the economy. But sometimes the world does not work this way. You can never get exactly what you wish for and in life you have to compromise. Yet I've had enough of all the lies and spin; the propaganda and the mediocrity. Why can't we criticise maturely and without hidden agendas? Why can't criticism in this god-forsaken country be intelligent and not tainted by agendas, whether political or simply personal? And why does it have to be so childish? Beppe Fenech Adami took Muscat to task for not suing Maltatoday for libel for being the first paper to report that PL will not increase the minimum wage. Did it also say that Muscat intends to adopt a wage-freeze and deny COLA-increments? How low can you go? 

With the elections round the corner, the PN has just announced a lucrative public-sector wage increase (including pensions...even though government has been berated time and time again on pension reform) and I bet my bottom cent that if they actually do go for a budget they will implement an increase in the minimum wage believing that this will be a 'political coup'. I just wonder if there will be anyone who has no axes to grind or not blinded by partisan tribalism who will dare to ask: where are you going to get the money from and how will it affect our public finances? But I forget. Such questions are only reserved for MuscatPL. 

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A Fair Society

Here is my take on what should seriously be looked at to ensure a fair society. Several points do not touch solely upon social matters but taken together they would, in my opinion, ensure a fairer society. There is no particular order of importance. I'm sure that there are other valid and more important points to be added here.

  1. Ensure that all citizens residing in Malta can keep the public administration in check by widening the concept of juridical interest (e.g. Body A implements a measure which negatively affects the surrounding environment but does not directly and personally affect individual B - individual B would still be able to make a claim). Ensure that registered NGOs such as environmental and consumer organisations are allowed the right to institute class actions without delay. 
  2. Ensure that any Whistleblower's Act would also provide for the protection of persons involved in the offence where possible or that punishment is drastically reduced for accomplices who blow the whistle. Furthermore, ensure that the Act applies retroactively to cases of corruption.
  3. Ensure that a Freedom of Information Act is broad and that it allows for easy and unfettered access to all public documents with very limited exceptions (e.g. for the safety of national security and public order). 
  4. Ensure that a clause providing for a right to a basic yet decent and dignified standard of living is guaranteed in the Constitution - to accompany a balanced budget provision. This right should be enforceable in a court of law.
  5. Ensure that wealth is more distributive. Consider heavily and progressively increasing taxes for any earnings exceeding €230,000 annually. Consider also the adoption of a windfall tax on banks and profitable industries. Adopt a tax on financial transactions. 
  6. Reduce public expenditure by reducing investment on non-essential and frivolous works such as fancy bridges, underground tunnels, dancing fountains and all the pomp and ceremony that goes with them. 
  7. Reconsider the notion of civil partnership and opt instead for gay marriage with full rights (including adoption).
  8. Adopt an effective cohabitation law which would give registered cohabiting partners  (even if homosexual) all adequate rights and obligations including medical and inheritance rights in case of intestate succession and the right to demand the reserved portion as well as the right to all forms of prison visitation (whether ordinary or conjugal). 
  9. Abolish all remaining discrimination with respect to the inheritance rights of children born out of wedlock. 
  10. Ensure access to IVF treatment without exception or obstruction. 
  11. Insert an exception to abortion in the Criminal Code where the life of the mother is in serious and grave danger as a cause of the pregnancy. 
  12. End moral paternalism and treat adults as adults with respect to all sexual or otherwise 'obscene' matters (physical, audio-visual and literary). The regulatory powers of the State should, in this respect, be solely limited to the protection of minors and ensuring that obscene acts or articles are not foisted on the public without precaution/warning as to the content where applicable. Remove or amend all vague offences concerning injury/offence to public morals and indecency. 
  13. Invest in child-care facilities. Where possible all public buildings and facilities that serves as a place of work should have an in-house or adjacent child-care facility (similar to the one currently found at the University of Malta). 
  14. Remove all discrimination in the Criminal code with respect to religious offences. Consider decriminalising blasphemy and the removal of reference to a state religion in the Constitution. 
  15. Give local (councils) and regional (EU) voting rights to all who pay taxes or otherwise contribute to the economy, including refugees and persons with subsidiary or temporary protection domiciled in Malta. Such right should also extend to general elections after a specified period (e.g. 10 years) of continuous residence and economic contribution. 
  16. Treat people as humans not parasites or scum. Mandatory detention for asylum seekers should be drastically reduced to a maximum of three months (2 months prior to first hearing and 1 month prior to appeal). This should only serve as a transitory measure until effective responsibility sharing is guaranteed at an EU  level  (adoption of a concrete Common Asylum Policy) whereupon mandatory detention is removed altogether except in those cases were effective steps can be taken towards repatriation. 
  17. Ensure that all children of settled migrants are accorded full citizenship rights as another concrete step towards integration in the community. 
  18. Ensure that all members of the judiciary and all high level officials in the public administration and public companies are appointed by a resolution of a two-thirds majority of the House of Representatives. Such persons should initially be nominated by a special and fully representative parliamentary committee which should also be able to invite members of civil society for discussion where appropriate. Enhance supervision and scrutiny of said persons by increasing the powers of the Commission for the Administration of Justice with respect to the judiciary and by making it easier to institute public inquiries with respect to public officials. Consider increasing the salaries of the judiciary to ensure greater impartiality whilst reducing excessive salaries and perks for certain public officials such as the Chariman/CEO of MEPA. 
  19. Ensure that all members of the judiciary are provided with suitable facilities and staff to aid their functions and to make proceedings more efficient. Consider, for example, allowing members of the judiciary to employ judicial assistants on a full-time basis and invest in a proper legal library at the law courts or in the vicinity. 
  20. Desist from transferring or terminating Court staff periodically. Sacrificing experience would reduce the efficiency of justice. 
  21. Empower Magistrates to conduct inquiries independently of the executive authorities such as the Minister for Justice/Home Affairs or the AG.
  22. Institute the office of a Public Prosecutor who is solely tasked with prosecuting cases o.b.o the Republic of Malta in front of the Criminal Courts (both superior and inferior: thus removing the power of the Executive Police to prosecute). The Attorney General would be a distinct office solely tasked with representing the Government in executive matters and vested with judicial representation of the Government in the courts of law. 
  23. Ensure that all prerogatives and discretion of the Public Prosecutor (see above) are subject to judicial review. Where possible ensure that all individuals accused with a crime are ensured equality of arms during investigation or inquiry and the course of criminal proceedings. 
  24. Ensure that persons investigated by the Police are afforded the right to have a lawyer present during the interrogation who is empowered to intervene on his or her behalf (as opposed to a mere 1 hour communication). Limit or disallow the inference of guilt if the person investigated refuses to speak after obtaining legal counsel. 
  25. Ensure an adequate and serious party funding law where any donations (singular or cumulative) exceeding the threshold of €2,300 are to be published with all relevant details. Consider the adoption of a state-funding mechanism for parties based on the percentage of votes garnered. 
  26. Consider increasing the salaries of Members of Parliament only on condition that they are to be disbarred from practising their profession or engaging in any other employment (no second jobs) during the course of their tenure. Furthermore, consider reducing the number of members elected in the House and imposing penalties for failure to attend a number of parliamentary sittings without proper justification. 
  27. Consider amending the electoral law to ensure representation of political parties that reach an established quota (e.g. 5% of the national vote). 
  28. Consider the adoption of incentives for identifiable property owners to sell derelict buildings to the State for an appropriate fee and without a property tax so as to ensure that development is more sustainable. 
  29. Enhance patient rights and ensure unobstructed and unfettered access to personal medical files. Reduce waiting lists by investing heavily in primary healthcare and consider allowing patients to sue the State for damages (moral or physical) for poor and inhumane treatment (e.g. being placed in corridors). 
  30. Reduce energy poverty by reducing utility bills but only on condition of drastically increasing fines and fees for polluters as well as businesses and households that exceed a specified quota. Invest heavily in renewable energy and incentives for renewable energy.

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There is always a 'but'

Did you ever notice how us Maltese have developed an unfortunate habit of qualifying a position against or in favour of something with a counter-position? Let me give you a few examples:

  1. I am not racist....but these people should be sent back immediately from where they came. 
  2. I do not condone poaching and illegal hunting...but those Germans had no right to film such illegalities and give Malta a bad name.
  3. I am hell-bent on bringing down this oligarchic power-block...but I am not willing to do so directly so that I can be used as a scapegoat (???)
  4. I am not against gay marriage...but I do not believe that gay couples should have the right to adopt children
I'm sure there are plenty of other examples that are better or more ridiculous than the ones I have listed above. One wonders why we have a knack of adopting 'neither here nor there' positions. Is it out of fear of being labelled or perceived as being loony, radical or controversial? Is it a cause of recent historical events which have ingrained in us a certain caution to be as objective as possible? Is it the cause of purely individual/egoist interests; that is, not to step on anybody's toes or to be in everybody's good books despite one's personal beliefs? 

It could be none of the above, or a mixture of all of them. I don't really know for I am no sociologist. What is sure is that this culture of caution is all pervading. It is especially prevalent in most politicians; such that we are not exactly sure what they actually stand for. This is precisely why you come to have some respect for politicians such as Dr. Adrian Vassallo, who are consistent and unashamed of their beliefs, even though you may or may not disagree with them.

Being in favour or against something with certain reservations is not bad or deplorable or anything of the sort. But when you see a consistent pattern of cautious speech/actions you begin to wonder whether there is something more to it than meets the eye. To be honest though, sometimes it really pisses me off, especially when the X but Y position is just ridiculous and illogical. In any case, it would be an interesting to study this, I guess. 

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Le changement?

Throughout the European Union government leaders and heads of states from both sides of the (central) divide are being chucked out of power. This is a testament to the utter failure that is austerity economics/austerity politics which seeks to appease the markets purely out of human misery. Pardon my French, but let's face it, you have to be absolutely fucking mad to expect people to give you gratitude for ending up jobless, hopeless and in complete disarray largely through no fault of their own. Why should people have to pay for the gross negligence of a select few?

This failure, which mainstream parties seem to be unable to appreciate, has given a great boost to extremist or fringe parties thus putting centrist parties at the cross-roads. With the exceptions of Portugal and Spain, which have both elected mainstream conservative parties respectively (and that after long-term centre-left or socialist governments), the political centre is paying the price of its obstinacy and blindness. Francois Hollande, who hails from the mainstream French Socialist Party, got elected on an anti-austerity/pro-growth ticket. Whether he would be constrained to drift towards what I call the "pure centre" during his tenure remains to be seen. But I see no reason why he should unless he also wants to get the boot after one serving one term. 

Recent elections also point towards a rejection of a Franco-German hegemony that has completely usurped the European Union.There is simply no "Union" if Member States are constrained to the diktats of France and Germany, regardless of how well-meaning their ultimate intentions may be. Europhiles and federalists alike should reject this powerblock hegemony, not embrace it - and one can only hope that Hollande remains true to his word; that is, by remaining steadfast in reshaping France's diplomatic relationship with Germany and thus its overall outlook on Europe. 

But it is not all rosy for those, like myself, who are anti-austerity and welcome le changement. The rise and rise of the fringe also translates, very evidently, to the ugly rise of fascism which can easily capitalise on hopelessness and fear. This is a big challenge for the common-sense politicians who must convincingly establish that they can offer ordinary people a hope that is greater than populist isolation, protectionism and xenophobia. 

The recent tidal shift in contemporary politics requires a new mindset. Until recently politicians seemed content to justify their actions because of global economic constraints. This is clearly no longer a legitimate excuse. Furthermore, reducing budget deficits by cutting spending is no longer the be all and end all. Keynesian economics, expansionary monetary policy and so on should no longer remain anathema.

At the end of the day people may be willing to let go of privileges and luxuries like travelling abroad, eating out and so on and so forth. But to go so far as to deny persons a basic yet decent and dignified standard of living is not only absolute madness but completely self-defeating. This right, in my opinion, is as fundamental as free speech, freedom of conscience and all the other basic rights and should be enshrined as such. It would surely be a good accompaniment to a constitutional provision which demands a balanced budget. 

Who knows if politicians will ever learn from this crisis? 

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Which are the real Six Points?


I am not a historian and I have neither studied this matter academically nor professionally. To this extent I cannot claim any authority over the subject, yet the beauty of history is that it is always written. 

Neither is it my intention to criticise the documentary Dear Dom or its producers and director for the simple reasons that: (1) I have not yet seen it; and (2) I vehemently disagree with that species of ignorant criticism born out of pure political fanaticism.

My intention is simply to examine the historical basis of the Malta Labour Party's infamous 'Six Points' on Church-State relations with the sources that I have at my disposal, given to me by my father, Philip, who lived those days (the 1960s) and followed politics with keen interest in his youth. 

The Six Points

In the trailer to the recently released controversial documentary, Dear Dom, it has been asserted that last of the Malta Labour Party's "Six Points" (Is-Sitt Punti) called for violence in certain instances:

To be fair, when I first saw the trailer, I did not really digest this point. It grabbed my attention, incidentally, from a readers' debate following a scathing criticism by Fr. Mark Montebello of the documentary. Some asserted that this point was the pretext for violence that many associate with Malta Labour Party, whilst others denied that the 'Six Points' made any reference to violence. Whether the former case was established in the documentary, I do not know. Lino Spiteri apparently explains that this point was intended to mean violence against the British colonial regime (e.g., the struggle of April 1958). To be precise, the list of points as drawn out in the trailer read as follows:

  1. The separation of Church and State
  2. A secular state
  3. Civil marriage
  4. Limit privilegum fori so bishops will no longer remain above the law
  5. Censorship without Church interference; and
  6. In certain instances, violence. 
Yet I have in my possession a document published by Kummissjoni Centrali Stampa ta' l-Azzjoni Kattolika Maltija (Empire Press, Istitut Kattoliku, Floriana) entitled 'l-emendi mressqa mill-malta labour party' which tells quite a different tale. In this short pamphlet these six points are listed as follows (in brackets is the how the Azzjoni Kattolika named them):

  1. The introduction of civil marriage and divorce (Żwieġ Ċivili u Divorzju);
  2. The right of parents to exempt their children from religious education in State Schools (Nuqqas ta' tagħlim reliġjuż obbligatorju fl-iskejjel);
  3. The right to be buried in cemeteries wholly or partially built or maintained by the Government of Malta  (Profanazzjoni taċ-Ċimiterju Kattoliku);
  4. A State power to halt religious functions aimed at disturbing public meetings or demonstrations (Tfixkil ta' funzjonijiet reliġjużi);
  5. A concept of public morality and decency that is based on Western European, not Catholic, standards (Moralita akattolika); and
  6. The removal of the privilegum fori and the introduction of spiritual/religious threats as a corrupt practice (Tneħijja tal-"Privilegium Fori" u l-Liġi tal-"Corrupt Practices"). 
The pamphlet places these points under the heading "IS-SITT PUNTI TA' LONDRA" (The Six Points of London). The reference to London is quite straightforward: the six points were legislative amendments that the Malta Labour Party wanted to introduce to the Independence Constitution during the Malta Independence Conference held in London in August 1963. These amendments can be corroborated by the Malta Independence Conference Report presented to the British Parliament by the Secretary of State for the Colonies in August 1963 (Her Majesty's Stationery Office, London, Cmnd 2121).

The Constitutional Amendments on Church-State Relations proposed in 1963 by the Malta Labour Party

1. Civil Marriage and the Principle of Divorce

In clause 4F(4) it was stated that law will provide for marriages celebrated before a public registrar or before a recognised minister of another religion . In these cases, such marriages are not subject to the Canon law. In the following subsection it was stated that marriages celebrated according to Canon law or where either of the parties is Catholic cannot be dissolved by divorce. It follows that divorce should be allowed in case of marriages not celebrated by the Canon law or where both parties are not Catholic:

4F. (4) Il-Liġi taħseb ukoll għal żweġijiet li jiġu ċelebrati quddiem reġistratur pubbliku jew ministru rikonoxxut ta' xi reliġjon oħra u f'dan il-każ ma humiex soġġetti għal-Liġi Kanonika.
(5) Żweġijiet ċelebrati skond il-Liġi Kanonika jew fejn waħda mill-partijiet hi kattolika ma jistgħux jinħallu bid-divorzju.

2. The Removal of Obligatory Religious Education in State Schools

The second law that the Labour Party wanted to introduce in the new Constitution was based on the removal of obligatory religious education. Clause 4L stated that whereas the religious education pertaining to the Catholic faith was to be provided in State schools, parents may exempt their children from such teaching and from the obligation to sit for the religion exam:

4L. It-tagħlim reliġjuż tal-Fidi Kattolika jingħata fl-iskejjel ta' l-Istat. It-tfal ta' dawk il-ġenituri li ma jridux, jiġu eżentati minn dan l-obbligu u mill-obbligu li jersqu għall-eżami tar-Reliġjon.

3. The Right to be Buried in State Cemeteries 

Another law that the Labour Party wanted to enshrine in the Constitution was that no person, either for political or religious reasons, can be denied a burial in cemeteries built or maintained, wholly or partially, by the Government of Malta. This formed part of that Chapter of the Constitution pertaining to fundamental human rights (ancillary to the  right not to be subjected to inhumane or degrading treatment). 

19. (2) Ebda persuna għal raġunijiet politiċi jew reliġjużi ma tiġi mċaħħda mid-dfin fiċ-ċimiterji mibnija jew mantenuti għal kollox jew f'parti mill-Gvern ta' Malta.

4. A right of the State to Halt Religious Functions Aimed at Political Interference

The fourth point or law regarded an inherent State power to halt religious functions aimed at political disturbance or interference. The ringing of Church bells, whistles and heckling by Catholic activists was customary during Labour Party public meetings in the 60s. The law stated that sacred ceremonies in churches adjacent to places where public meetings or demonstrations are held cannot serve as a pretext to prohibit such meetings or demonstrations. The Police have the power to enter Churches during celebrations of sacred functions to halt the ringing of bells or other nuisances that can disturb public order during public meetings (this was an amendment to the fundamental right to freedom of assembly and association). 

25. (4)...Ċerimonji sagri fi knejjes qrib ta' postijiet fejn ikunu ser isiru meetings jew dimostrazzjonijiet pubbliċi ma jistgħux iservu bħala pretest għall-Awtoritajiet biex jipprojibixxu l-meeting jew id-dimostrazzjonijiet.
(5) Il-pulizija jkollha s-setgħa li tidħol fi knejjes waqt iċ-ċelebrazzjonijiet ta' funzjonijiet sagri biex iżżom id-daqq ta' qniepen jew tfixkil ieħor li jista' jiddisturba l-ordni pubbliku waqt meetings pubbliliċi. 

5. A Western European Morality (The Separation of Religion (Church) and State)

The fifth point was, in my opinion, the most crucial and the most far reaching, largely because from all the Six Points made by the Labour Party, it is still not universally applied to this day. It held that the terms 'public morality, decency and public order' should be interpreted according to the principles generally accepted by Western Europe. Morality and public decency should not be interpreted as being exclusively equivalent to the sense of morality or decency as understood by a particular faith (this was a clause pertaining to the interpretation of Chapter III on fundamental rights and freedoms, specifically to those limitations of such rights in the interests of the protection of public order, public morality and decency). 

28. (4A) F'dan il-Kapitlu, moralita pubblika, deċenza u ordni pubbliku għandhom jiġu interpretati skond il-prinċipji ġeneralment aċċettati mill-pajjiżi ta' l-Ewropa tal-Punent. Il-moralita u d-deċenza m'għandhomx jiġu interpretati bħala esklussivament ekwivalenti għall-moralita jew deċenza kif jifimhom xi twemmin partikolari.

6. The Removal of the Privilegum Fori and the Introduction of Spiritual Threats or Harm as a Corrupt Practice

Finally, the last point was that pertaining to the removal of the privilegum fori of Maltese and Gozitan Bishops (which effectively put such Bishops above the law and prohibited any legal scrutiny of their actions by the Courts) and the introduction of a clause which considered, as a corrupt practice, spiritual threats or harm aimed at swaying persons to vote against their political convictions or to refrain from voting:
37A. Tiġi konsidrata bħala prattika ta' korruzzjoni li tolqot il-liberta tal-votazzjoni u li għandha tiġi kastigata bil-Liġi bħal kull prattika oħra ta' korruzzjoni minn kull persuna waħedha jew ma' kull persuna oħra li tagħti jew thedded li tagħti xi inġurja spiritwali-reliġjuża lil xi persuna biex tħajjar jew iġġiegħel lil din il-persuna li tivvota kontra l-konvinzjoni politika tagħha jew ma tivvotax (added to the section on 'Voting at Elections' in Chapter V - Parliament) 
I could not find any specific provision pertaining to the removal of the privilegum fori of the Bishops however consider the following clause that the MLP wanted to introduce into the Constitution:
4D. (1) All citizens are invested with equal social dignity and are equal before the law, the Administration and justice, without distinction of sex, race, language, religion, political opinions and personal or social conditions. 

Decried as a true and proper Socialist and Secularist program, which the Catholic Church can neither approve nor accept, these proposals were rejected in their totality.

The 1963 MLP-Church Peace Talks in Rome: An Alternative 6 Points?

However, there is another set of 'Six Points' which apparently emanated from private discussions between Mintoff and the Church/Holy See in Rome (IS-SITT PUNTI TA' RUMA). These discussions were aimed at establishing peace between the Church and the Malta Labour Party following the turbulent 1962 elections. In an announcement made by Mgr. E. Galea, Bishop of Tralles and Vicar-General on behalf of the local Curia, dated May 22 1963 (a couple of months before the Independence Conference), the latter lists these six MLP demands for peace as follows:

  1. Separation of Church and State;
  2. The State should be "secularist" and should treat all religions equally;
  3. Acceptance of Civil Marriage;
  4. "Privilegum fori" should be limited;
  5. Censorship of films and books should be carried out exclusively by the Government; and the Church should be unable to interfere;
  6. In certain cases violence is admissible
They bear a striking similarity to the Six Points mentioned in Dear Dom; in fact, they are so similar, that it is reasonable to assume that these are the very same Six Points that the documentary mentioned/was based upon.

The 1965 MLP-Vatican Correspondence

Dom Mintoff documents in his treatise 'Malta: Church, State, Labour' the correspondence between the MLP and the Vatican (a set of discussions held in London, 20 February 1965) which regarded the MLP's Policies and Principles on Church-State relations. The Vatican wanted the MLP to water down the original 1963 proposals to a level it deemed acceptable. However, the MLP did not relent save on the point, it seems, concerning the interpretation of public morality. These points are once again listed as:

  1. Marriage: the MLP wanted to introduce Civil Marriage for all, irrespective of religious creed whereas the Vatican wanted it to apply in the case of non-Catholics only;
  2. Religious Instruction in State Schools: the MLP still wanted to apply a general right for parents to exempt their children from religious education whereas the Vatican wanted this right to apply solely in 'very special cases';
  3. Corrupt Practices: the MLP wanted to retain spiritual threats during elections as a corrupt practice whereas the Vatican originally wanted it removed until it settled for a compromise (it is noted that 'H.E. Mons. Cardinale (unnamed) not only disagreed with the imposition of mortal sin by the Maltese Bishops in 1962 but had stated quite categorically that the Labour Party would not be hampered by this spiritual impediment in future elections').
  4. Right of Burial: on this point both parties agreed that there should be no interference in the burying of persons in State-owned cemeteries;
  5. Definition of Public Morality and Public Decency: A watered down version was adopted, basing the interpretation of these concepts on 'generally accepted Christian principles';
  6. Public Demonstrations and Public Meetings: The MLP wanted to retain the spirit of the original proposals on this point (religious functions are not a pretext to prohibit public meetings and any disturbance breaking public order and peace during said meetings is a criminal offence). Whereas the Vatican agreed, it wanted abuse to be dealt with by the 'appropriate civil and ecclesiastical authorities'. 
Once again, these points do not make any mention of 'violence' or that violence be acceptable in certain circumstances. 

Questions, Comments and Observations: 

  1. In both instances, be it the six points mentioned by the Azzjoni Kattolika concerning the Constitution proposals or those mentioned by Bishop Galea concerning the MLP-Church peace talks, the 'Six Points' are attributed to Church documents. Were the 'Six Points', therefore, a creation of the Catholic Church alone? 
  2. Which are the real Six Points? The Independence Constitution Proposals or the MLP-Church peace demands? To be fair, there were several other amendments that the MLP wanted to introduce to the Independence Constitution. They were not, strictly speaking, just six (which reinforces the first observation made above) - but they were the six amendments/proposals that struck at the heart of the Church's spiritual and political supremacy (that is why they are termed by the Azzjoni Kattolika as: 'L-Emendi tal-M.L.P. li jolqtu l-Knisja'). 
  3. If the answer is that there are two different sets of 'Six Points' (The Rome/Peace set and the London/Independence Constitution set) which is the official one? Were the London/Independence Constitution proposals omitted from the documentary? If so, why? 
  4. Is it scientifically sound to base the 'Six Points' on those merely mentioned in the Bishop's missive concerning the abortive peace talks in Rome?

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Tackling Malta's racism: Scope for legal intervention?

There is no doubt in my mind that a pernicious racism problem exists in Malta. It is not my intention to enter into a profound or detailed study into the causes of racism and xenophobia so this post will rest on this assumption. The facts, though, seem to stand out; ranging from racist killings (to give the benefit of the doubt, let me qualify them as 'alleged') to blatant discrimination, intolerant discourse and bigotry in the workplace, the street, the press, and even in the highest institutions of the state. 

Anti-discrimination laws have a basis in fundamental human rights. Consider the following articles: 

'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status' [Article 26, International Covenant on Civil and Political Rights] 
'All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.' [Aritlce 7, Universal Declaration of Human Rights] 
'The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.' [Protocol Twelve, Article 1, European Convention on Human Rights]
Our very own Constitution states that:
'Subject to the provisions of sub-articles (6), (7) and (8) of this article, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
In this article, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.' [Article 45, Constitution of Malta]
Yet, as far as I am aware, these laws largely relate to the so-called 'vertical relationship' between the state and its treatment of individuals as opposed to a 'horizontal relationship' between two private individuals. Nonetheless, the state has (or should have) a positive obligation to disallow discrimination even in the private sphere. Otherwise the state would be passively tolerating racism and discrimination. Should the law in this regard be strengthened? Article 82A of the Criminal Code already establishes the offence of 'incitement to racial hatred', whilst other laws (e.g. employment law) makes provisions against discrimination, but is this enough? Should we consider the promulgation of one consolidated and far-reaching 'Law Against Racism' or 'Anti-Racism Act'? (This could be more comprehensive so as to include provisions against all forms of discrimination - not racism or racial discrimination alone). 

Evo Morales's Ley Contra el Racismo y Toda Forma de Discriminación [2010] makes for interesting reading. Article 14, which concerns 'private institutions', states [loose translation]:

All private institutions must adopt or amend their by-laws so as to include offences involving racist  and/or discriminatory behaviour, such as: 
a) Racially and/or discriminatory motivated verbal aggression; 
b) Denial of access to a service for racist and/or discriminatory reasons; 
c) Physical, psychological, sexual, racist and discriminatory abuse, not constituting a crime; and 
d) Demeaning actions 
However, the European Union's 'Racial Equality' Directive [Council Directive 2000/43/EC] already makes reference to non-discrimination regarding access to services (even in the private sphere) in Article 3 (h) thereof, but I am not entirely sure whether this extends also to, say, access to a nightclub.  Nonetheless, it is questionable whether such measures are being effected in practical day to day life. Our laws concerning racial equality are found in various provisions of various different Acts and laws but they are mostly concerned with the prohibition of blatant racial hatred/discrimination (see for instance, Subsidiary Legislation 350.26 concerning 'Requirements as to Standards and Practice on the Promotion of Racial Equality'). The question I am posing is: do these laws go far enough to tackle the actual problem?

However, a very valid argument exists that no matter how many laws you may wish to introduce the problem will not be solved for it is deeply rooted in the collective psyche or culture so to speak. Racism, like political tribalism, starts at home and is fostered in places like schools and work. Being in a group of friends who advocate xenophobic opinions would also put pressure on a person not to speak out (if not to actually agree with such opinions). 

In light of these facts ambitious political, cultural and educational reforms are needed. Reform has to start with politicians and political institutions. For too long have we heard and seen politicians attempt to curry favour and popularity by exploiting voters' fears of immigration. This is a practice that has to stop although it does not mean that politicians should remain silent on issues such as responsibility sharing among EU Member States; especially in light of Malta's very limited resources. Such discourse is not racist, in so far as it is based on  objective and reasonable demands for EU aid (as opposed to discourse like 'invasion', 'disease and pestilence', 'country X should serve as the rubbish bin for Africans', etc like we are accustomed to hearing).

Secondly the state has to ensure stricter vigilance and discipline on the police corps.  Various persons have stated that the police either remain indifferent to racially motivated crimes or actually participate in them. Should the powers of the National Commission for the Promotion of Equality (NCPE) (is this body actually functioning (?) because I haven't heard anything about it in the press) be strengthened in this respect so as to be able to conduct independent inquiries into the conduct of the police force upon complaints of alleged racial abuse or omitting of their duties? 

Thirdly various educational campaigns are needed aimed at promoting racial equality and harmony. The state would spend its money better on campaigns like these rather than on useless (and non-transparent) consultancies and the like. The national curriculum of education should also include concrete measures aimed at promoting racial equality amongst students. 

There is so much that could be done. All it takes is a little bit of will-power. 

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A (Very) Brief Legal History of Artistic Censorship in Malta (2): The Legal Changes of the 70's

In the period beginning from 1970 onwards the silent protest against artistic censorship and the "brute dogma" that characterized the censorship regime continued; for the most part as a public outcry on the press. Whether this could be construed as Malta's mild and belated "1968" moment is a matter for debate best left to qualified historians, sociologists and philosophers. Dr. Paul Xuereb, Librarian of the (Royal) University of Malta at the time, wrote a letter to the Sunday Times of Malta ('Censorship Discontent' - published 15 November 1970) which captures this moment. He states:

'Recent correspondence in this and in other papers is evidence of a widening discontent with our literary and screen censorship. Though there are others who react to any mention of censorship reform by predicting an era of widespread depravity and debauchery in the country, it cannot fail to puzzle me why our Government continues to adopt a phlegmatic attitude to the sensible and far from radical proposals on the subject that have already been made to it'. 

The same lamentations were made in the context of theatre and (especially) film censorship on which hundreds of articles and letters of protest were published in the local press. They were not wholly in vain. In 1972 the newly elected Labour government ushered in some timid reforms concerning stage and film censorship which mainly consisted in a reconstitution of the board of censors. The aim of the reforms was to replace a pure moralist censorship regime with a balanced and more ‘mature censorship’.

On the 21st of March 1972 l-orizzont’s editorial reported a change in the composition of the censorship board. It stated that the new stage and film censorship board was composed of persons who had publically criticized the archaic censorship regime (“mill-ħafna anzjani li kien hemm fil-bord l-antik ma baqax wieħed, u ħafna minn dawk li kienu jikkritikaw saru ċensuri”). It further stated that the new board was now composed of journalists, industrialists, a priest, a trade unionist and a famous author.  L-orizzont also claimed that whilst it expected the new censors to take Malta out of the Dark Ages they should not forget that Malta is a Catholic nation which has no need of those ‘excesses’ found in Scandinavian nations (e.g. Denmark had formally decriminalised adult pornography, even the ‘hardcore’ species, in 1969; the first Western democratic nation to ever do so).  

Further changes occurred in 1975. One of the more notable amendments was the abolishment of the postal censorship regime which (as stated in my previous post) was vested with a carte blanche to withhold any books it found objectionable. The new Postal Services Act 1975 (introduced by Act XXXV of 1975) seemingly replaced the former Post Office Act. Whilst the new Act still allowed (and still allows) for the sifting of imported postal material (other than letters) in terms of the customs law (see Article 35 of the Postal Services Act), it makes no mention of nebulous concepts such as morality and impiety. Nor is there any mention of ‘Postal and Customs Printed Matter’ review boards.  

However, the Customs Ordinance still vests (to this very day) the Commissioner for Revenue (not sure if this office was previously termed ‘Comptroller of Customs’)  with a general power to inspect and destroy imported material upon mere suspicion that it is pornographic. This is established in Article 82 of the Customs Ordinance which seems to be completely outdated (still makes reference to the defunct Post Office act) if not unconstitutional and contrary to EU rules on free movement of goods. Whether this law is enforced is another matter. Perhaps some politicians or journalists that may read this piece should inquire. 

A second notable change was the introduction, also in 1975 (by Act XXVII of 1975), of what is now Article 208 of the Criminal Code which criminalizes the manufacture, distribution, etc., of obscene and pornographic material. Legal Notice 80 of 1975 also introduced the Pornography and Obscenity Regulations which defined the meaning of ‘obscene’ and ‘pornographic’ in Article 3 thereof as an article (any object containing or embodying any matter to be read, looked at or heard) which has, as its dominant characteristic, ‘the exploitation of, or undue emphasis on, sex, or any one of the following subjects, namely, crime, horror, cruelty and violence’. It is interesting to note that the main source of inspiration for this particular definition was neither the English nor the Italian obscenity law but the Australian and Canadian laws. The same regulations also introduced the so-called ‘public good defence’ or ‘defence of artistic merit’ which absolve works that serve the public good on the ground that they are in the interests of science, literature, art or learning.

Taken together these new reforms suggest that the legislator’s intention was not to absolve the arts from any scrutiny whatsoever but, rather, to replace the archaic and arbitrary system of a priori censorship (in the context of printed matter) with the fundamental liberty to publish and be damned. As a corollary to this legislative shift, the matter of whether an artistic work was to be deemed 'pornographic or obscene' was a matter for the court, and not some unknown body of censors, to decide. 

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A (Very) Brief Legal History of Artistic Censorship in Malta: With special emphasis on the early 20th Century up to the 1970s

From the research conducted it appears that Maltese jurisprudence on the matter of obscene publications (artistic or literary publications in particular) is very scarce. This could be due, in part, to the rigorous censorial activities of the postal censors and customs officers which had the power to examine and withhold books and other imported materials deemed to be objectionable and prohibited by the laws of Malta.

For instance, one could point to Article 24 of the Post Office law (1924) which stated:

‘No person shall send by post any indecent or obscene print, picture, pictograph, lithograph, engraving, book, card, or any other indecent, obscene or impious article, or any postal article having thereon or on the cover thereof, any words, marks or designs of an indecent, obscene, seditious, scurrilous, threatening, or grossly offensive character...’
Article 60 (b) of the Customs Ordinance (1909) was also cited as grounds for restricting imported books. It established as an offence ‘any prohibited goods whatsoever which are imported or brought into any part of Malta’.

With regards to literature in particular, it is suggested by some that such officers went so far as to base their decisions on the infamous Index Librorum Prohibitorum. This was especially prevalent up to the 1960s which was characterised by religious dogma and repressive spiritual sanctions by the local Curia during the turbulent political history of that period in Malta.  

Such facts can be attested by various articles and letters of complaint published in local newspapers. In 1964 alone, 1014 books and 557 other publications were withheld by the Postal and Printed Matter Board of Censors. Several classics such as Fanny Hill by John Cleland, Lady Chatterly’s Lover by D. H. Lawrence and La Romana by Alberto Moravia where nowhere to be seen on the Maltese book-shelves, including works by famous writers and thinkers such as Sartre, Simone de Beauvoir, and Havelock Ellis. Moreover, no appeal to the ordinary courts was permissible from the final decisions of the Customs Printed Matter Appeals Board.

Censorship was also prevalent in film and stage productions. In one letter to the editor of the Times of Malta, Dr. Benny Camilleri laments that ‘[t]he censors have been so severe to most of the good films being produced today that we are in the position of having to go to London or Rome in order to be able to see a good film.’ In 1964, Lino Cassar writes in Il-Helsien, that the censors withheld 15 films and made cuts to another 74. In 1969, 24 films were banned and another 40 in 1970. In 1963 the theatre censors banned the plays Sei Personaggi in Cerca d’Autore and L’Uomo, La Bestia e La Virtu by Luigi Pirandello leading various commentators to ask ‘[h]ow long are we going to suffer at the hands of these people who cannot tell the difference between pornography and art?’ 

So ingrained and deeply rooted was the state of censorship that a certain ‘A.A.M’ writing to the Sunday Times of Malta proclaimed that ‘[w]e have come to accept the censor as an institution that constitutes an intimate part of the normal State machinery. We have conjectured, accepted and cited repeatedly “valid reasons” to institute and expand the censor’s ramifications’. 

In its few judgments on the subject, the influence of the court also had a role to play. In Il-Pulizija vs Domenico Catalogna (Court of Criminal Appeal (Inferior), 30 January 1954 (Vol XXXVIII (1954), Part 4, Page 798)),  for instance, the defendant was convicted for an offence to public morals for inadvertently showing nudist paintings to his friends in public. In its judgment the Court of Criminal Appeal quoted the Italian jurist Cocurullo who argued that art should have no business in displaying the vice and depravity found in nature and society; it should not lift that veil. In the slighlty more bizarre judgment of Il-Pulizija vs Anthony Deguara (Court of Criminal Appeal (Inferior), 26 November 1960), the accused was convicted for an offense to public morals for playing the song ‘Nuda’ by Domenico Modugno on a jukebox in a cafeteria in Sliema. In its judgment the court of criminal appeal held that the words ‘jew b’xi mod ieħor mhux imsemmi band’oħra f’dan il-Kodiċi, joffendi l-morali, l-imġieba xierqa, jew id-diċenza’ (in what was then Article 352(z) of the Criminal Code) was comprehensive enough to proscribe any behaviour which in some way offends morals and concluded that the fact that such a song was played on a jukebox in a public place undoubtedly offends public morals.

In light of these historical realities, Maltese artists and writers rarely dared to challenge the status-quo. Art, for the most part, had to be timid, aesthetically pleasing and inoffensive to pass the censor’s test. Anything sexual was always taboo. The fear of criminal punishment or the censor’s ban and the lack of appeal from decisions of the censors, whilst unfortunate in themselves, necessarily lead to a scarcity of local jurisprudence on this matter.  

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