Archive for March 2012

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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