In view of what Phyllisienne Brincat went through, the least the attorney general can do is make a public apology and give an explanation. Brincat, a singer and a TV personality, so very much in the public limelight, was charged with hate speech following her participation in a discussion programme dealing with religion.
No doubt driven by her religious conviction, when disability was being discussed, Brincat attempted to make a point about suffering, linking it to original sin.
“Confusion worse confounded,” said the magistrate hearing the case. Her comment had sparked reactions from a cabinet minister, the opposition party and a government-appointed entity, who concluded she was saying that people with disability were the fruit of sin.
Two serious and pertinent questions emerge.
First, should a person linking suffering with original sin be accused of fomenting hatred or would such person be merely expressing an opinion – a fundamental human right – that could hurt?
Second, can the attorney general be justified in ordering court action against Brincat when it was clearly not a matter of hate speech in terms of law?
We can address on another occasion the delicate discussion about the limits of freedom of expression. Suffice to say, however, that there is widespread confusion on what constitutes hate speech at law.
What is being discussed here is the attorney general’s office stubbornly going ahead with a prosecution evidently destined to fail.
Judging by the court decision, it would appear that the attorney general either relied on hearsay, which is usually inadmissible as testimony in a court of law. Or else whether the AG succumbed to public pressure or, worse, allowed strings to be pulled from above. It soon became clear to the presiding magistrate after listening to a recording of the discussion that Brincat did not make the offending statement at issue.
So, it becomes even more confusing why the attorney general’s office – assuming they did analyse the recording – decided to prosecute, even though it was concluded this was a borderline case and that it was not certain whether a crime had been committed.
Even the prosecuting officer was uncomfortable with the case. He declared in court he was against Brincat being prosecuted but proceeded in line with the attorney general’s instructions.
Having heard what Brincat said, the senior police officer went even further and, in an email, admitted that if “one hears the interview it does not stir up violence against a disabled person or group of disabled persons”.
The presiding magistrate felt he should comment that, as things turned out, the accusations levelled at Brincat for what she was supposed to have said led to disdain in her regard. In other words, she herself was now subjected to hate.
The attorney general’s bizarre decision did not only cause anguish to Brincat but also raises the question on whether action can be taken against the prosecuting officer.
The Police Act lays down that it is “an offence against discipline for a police officer to charge a person before the courts with an offence which is manifestly unfounded”.
The attorney general has a huge responsibility in safeguarding the rule of law and upholding the integrity of the legal system. The office must ensure that the law – both in the spirit and the word – is applied fairly and that justice is administered impartially.
In Brincat’s case, the attorney general committed a cardinal sin of omission.