On January 17, 2008, in one of her newspaper articles, Daphne Caruana Galizia criticised a specific provision of the law – article 517 of the criminal code – that empowers judges and magistrates to ban “any writing” about a case before them.
She pointed out that this was a law from the Victorian era, a time when the expectation of free speech in a democratic society was different from today’s. It was a time when power belonged exclusively to an elite of property-owning men who felt they could tell people what to think and for whom democracy was only useful to the extent that it protected their interests, not anybody else’s.
Benevolent Victorians wrote laws that protected our eyes and ears from the horrors spoken inside a court room. They benevolently censored reality, believing it was for our own good.
In her article from 16 years ago, Daphne referred to the ban that existed in the reporting of a case of systemic abuse by paedophile priests of children in their care. “The concern of the court may have been with the risk of sensationalising a case involving priests and young boys,” she said, “but all the ban has done is protect the interests of the alleged aggressors. It also cheats the public because of its need to see justice being done. Indeed, the public in this situation doesn’t even know whether justice is being done (...) That may be correct procedure under our 19th-century law but is it right,” Daphne asked. She answered her own question. “No, it isn’t.”
Daphne was not arguing for the publication of the names of the victims. But she was arguing against using the excuse of protecting them to help alleged perpetrators avoid public scrutiny.
The molestation of children at the hands of people entrusted with their care is a matter of public interest. That’s different from saying it is a matter in which the public is interested. The right to information is not there to satisfy one’s curiosity. It ensures, rather, that, as enfranchised citizens of a society, we can be assured that there is some fairness in how we run our affairs as a community.
We know there will always be wrongdoers but we can only ever have confidence in the society we live in if we can see for ourselves that there are ways to provide redress, to compensate somewhat for the losses suffered by victims, some reparation, and some punishment for perpetrators, and deterrent for those who would copy them.
This is why justice must be seen to be done. The public’s scrutiny of the process ensures that justice is properly administered. That is not to say that we should decide on anyone’s guilt or innocence based on what the public thinks. It is not to say that anything but due process, cross-examined evidence, the law and its proper application and equality of arms should decide the fate of the accused. It is, however, to say that the worst way to risk error in the process is to conduct it behind closed doors.
Article 517 is still the law of the land, though it is not used frequently. Rarely do judges wield the incredible power of banning all writing or publishing about a case. For this is might indeed.
Anyone disobeying the rule risks being found in contempt of court, which, in this case, is punishable with detention, not in prison, but in the holding cells of the court building in Valletta, a dungeon of such squalor it makes Corradino feel like inviting accommodation.
No one has suffered that penalty in living memory, which speaks both for the rarity of the imposition of blanket pre-trial bans and for the effectiveness of the disincentive against defying them.
A lot has happened since 1859- Manuel Delia
It is unlawful to even criticise a judge for deciding to impose a blanket ban. Consider that. We have a law that criminalises criticising a public official for taking a decision that has the effect of banning writing. And if anyone is punished for breaching a pre-trial court ban, expressing an opinion about that fact is a crime.
This is 1859 legislating on our life today, imposing a silence on us on a matter of public interest, in a manner that should be utterly unthinkable. And, yet, you’ll be surprised to hear there are limits to this, however outlandish this power seems.
The law empowers a judge to ban writing or publishing about a case but there’s no power to ban people from talking about a case, let alone thinking about it.
Individuals are perfectly entitled to form an opinion and their judgement about a case in the public interest. That is usually a good thing but only because the multiple sources of information available in the media typically inform public discourse and the thinking of individuals. Journalists cover court cases. They analyse them. They debate them. They work to clear misconceptions. They restate the facts that are forgotten over the aeons of time between the occurrence of a crime and the time it is heard in a courtroom. They arm the public with the tools they need to reach an informed opinion.
Now, not all people who call themselves journalists do that well. Not all of them are always accurate, or even always honest. But a lot has happened since 1859. We have since developed the thinking that it is better to allow inaccurate reporting and unfair comments to be poured into the marketplace of ideas than to have some authority decide on an official truth for all of us.
We trust citizens to have discernment, to weigh the multiple sources of information and analysis and to trust the ones that prove trustworthy. We know not everyone is discerning. But if we trust the less discerning to vote alongside us to choose our government, we should not patronise them and protect them from the facts and comment about those facts like those Victorians did to their – as they would have called them – rustics.
That is how we approach censorship in this day and age. We think censorship is a bad idea in practically all circumstances and we especially do not trust a government to do it because they will give us a version of reality that best serves them.
I don’t think a judge who uses their power to hand down a blanket pre-trial court ban is seeking to serve some hidden interest, their own or anybody else’s. I have no doubt they mean well. However, that well-meaning has the unacceptable effect of preventively denying the public the information and the analysis they need to form an informed opinion.
The only thing worse than some official truth is being deprived of any version of the truth altogether, especially on a matter of public interest.
Article 517 of the criminal code is the law of the land. It should not be.