Andrew Sciberras

From the outset the title of this blogpost immediately conveys the idea that I consider criminal defamatory libel "evil". In particular, I find that it is inherently wrong and undemocratic to put someone in prison for words or writings about others even if they end up to be purely speculative or outright false. Criminal libel is part of our criminal law and is established as a crime in Article 252 as follows:

252. Whosoever, with the object of destroying or damaging the reputation of any person, shall offend such person by words, gestures, or by any writing or drawing, or in any other manner, shall, on conviction, be liable to imprisonment for a term not exceeding three months, or to a fine (multa). 

The penalty is decreased where the defamation consists of vague expressions or indeterminate reproaches, or where the words or gestures used are merely indecent (crime becomes a contravention). However, it is increased if such defamation occurs in writing, drawings or effigies that are divulged and exhibited to the public (imprisonment of up to one year). Moreover, the party who defames is not allowed to produce evidence of the truth except in the case of public officials and he/she shall only be exempt from punishment where that truth is deemed by the courts to be in the public interest. It appears that in the case of private individuals there is no defence. 

The criminal law, however, makes a distinction between defamation and libel on printed matter. In the latter case, it states that the provisions of the Press Act shall apply. 

The issue with defamation is a delicate one. Unfortunately for free-speech radicals, damage by words or writing to the reputation of others is one of the exceptions to freedom of expression. One must bear in mind that the motivation behind such law is that a person who, in bad faith and with malicious intent, conjurs up a falsity to utterly destroy the reputation and honour of another (his family included) should be made to suffer some form of punishment. I think that most would agree that this is a serious inherent wrong that is objectively justified. The problem arises with respect to punishment: is imprisonment a proportionate response to counter such wrong? 

Furthermore (and parallels can be drawn here with the laws on obscenity and their consequences viz-a-viz artists) such a punishment may indeed serve to stifle the media. But one must not immediately come to the conclusion that, as a result, laws such as these should be immediately demolished and thrown in the dustbin of history. That would be rash and may open up a Pandora's box - or simply a case of going from one extreme to the other.  

The UK abolished criminal defamatory libel as recently as 2010, but as other more recent events suggest (Leveson comes to mind), the media too can play very dirty games. Of course, one has to take into account the fact that the case with NotW/Murdoch/etc involved other offences relating to privacy -  but these same issues (recordings and whatnot) are cropping up here too. 

Whatever the case, I claim that the motivation behind this law is well-reasoned but it does require serious reform. Perhaps one step forward would be to give the alleged "defamor" more freedom to prove the veracity of his allegations - in other words this defence should not be restricted in any way. Secondly, the law or procedure should be drafted in such a way that the prosecution and/or complainant must prove beyond any reasonable doubt whatsoever three key points: (1) the falsity of the words, writing or gestures (the mind boggles at what such gestures could be) ; (2) bad faith; (3) malicious intent. Thus, even though a writing may found to be ultimately false, the "defamor" should be exonerated when he/she proves that such writing was drafted in good faith and/or without malicious intent. A case that comes to mind is that issue concerning Joseph Mizzi's (public official) alleged "drunk" episode at the Eurovision. Mizzi may have furnished proof that his drink was in fact spiked, but it does not mean that the press who brought this incident to light did so in bad faith. Other obvious cases are articles on statements on serious shortcomings - even corruption (and associated whiffs) - but which cannot be definitively proven. 

Thirdly, the punishment for imprisonment should be removed as I feel that, although the damage caused may be serious, it would be a disproportionate response to mitigate such a crime - all the more so when it is applied to journalists who draw up articles from various sources. Furthermore, it appears that such punishment is a mere relic of the past as it is supposedly no longer applied/enforced by the courts.

Another plausible alternative would be to merely remove the criminal aspect and to retain the civil "offence" under tort/libel. A legitimate downside to this (in my opinion) is that in the civil realm, the court bases its decisions on what is called 'balance of probabilities' rather than 'proof beyond reasonable doubt'. Thus it may be easier for a civil court to conclude that harm was done than a criminal court; and there is more scope for subjectivity rather than objective forensic evidence.  

Ultimately, the monetary compensation and the exoneration by the court of the alleged crime should definitely serve as sufficient remedy. Coupled with this should be other procedural reforms in the sense that such cases are treated with greater urgency by the courts. This is best for both parties for on the one hand the alleged victim may lose not only his reputation but also livelihood (by being forced to resign for example), and on the other hand (if the criminal offence is retained) the alleged violator would be accused of a crime which is serious in itself. Another interesting aspect (more substantive than procedural), but which may not go down well, would be to apply fines that are proportionate to the damage suffered - both actual and moral - and not a mere maximum of €x. Lastly, and perhaps this is the most difficult part albeit the most obvious, persons in the public sphere have to acknowledge that they are not immune from scrutiny - that the functions they serve (and not their private lives, please) and how they serve them must be put under the magnifying glass. 

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. 

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, 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. 

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.

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. 

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. 

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.

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 timesofmalta.com article dated 18 November 2010 reports Musact telling employers [on the living wage]: 

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 crises...is 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.