It was a court decision that was overlooked by most of the media. But the judgment last Monday to uphold a ban on the controversial theatrical production Stitching could have major repercussions for the local arts scene.
In an 82-page judgment, Mr Justice Joseph Zammit McKeon held that the Film and Stage Classification Board had acted correctly in banning the two-actor play, which was meant to be staged in February 2009.
The judge ruled it was unacceptable in a democratic society founded on the rule of law for any person to be allowed to swear in public - even in a theatre as part of a script. He pointed out that the country's values could not be turned upside down in the name of freedom of expression.
The producers, Unifaun, said Anthony Neilson's play about a couple coming to terms with the loss of a child had been taken out of context and requested to perform it in court on the grounds that a script is a work of art that is only half-formed, and needs actors to give it meaning. The request was turned down.
Monday's decision against Unifaun will only serve to create more uncertainty as to what is permissible on stage in Malta. A strict application of the court's decision may prevent the staging of several classical works, including William Shakespeare's Titus Andronicus, not to mention most of the Greek tragedies.
The Classification Board's objection
Board chairman Therese Friggieri banned the play on grounds of "blasphemy against the state religion", "obscene contempt of the victims of Auschwitz", and "an encyclopaedic review of dangerous sexual perversions leading to sexual servitude".
She also claimed that in the play there was "a eulogy to the child murderers Fred and Rosemary West" and a reference to "the abduction, sexual assault and murder of children".
'Taken out of context'
But director Chris Gatt had challenged the Classification Board, saying the elements objected to were "spectacularly, almost wilfully, taken out of context".
The play is about a couple that deals with the loss of a child, not some sexual perversion, Mr Gatt insisted.
The comment about Auschwitz is made in a personal, deeply-felt and regretful confession, while there are just two blasphemies, one of which uttered in a moment of rage.
Excerpts from the court judgment
"The court sees nothing unreasonable in the board's decision to consider the script offensive to Maltese culture in the wider sense of the word.
"As troubled as a relationship might be, there should be no extensive use of vulgar, blasphemous or obscene language, which exalts perversion, degrades human life, and demotes women to merely objects of sexual desire, among others.
"It is unacceptable in a democratic society that a person is permitted to swear or utter vulgar words in public, even in a theatrical script. If this court permits this in a democratic society, it would be discriminating between those who are punished because they swear in public and those who are allowed immunity because they swear within the context of a play."
The repercussions
The court decision is unprecedented, according to Unifaun legal co-adviser Michael Zammit Maempel, in the sense that the arts have always been allowed wider elbow room in this regard.
Where blasphemy is concerned the court is saying in no uncertain terms that it sees no basis for distinction between ordinary circumstances and a staged setting.
"To extend the argument, therefore, there would be no difference between someone swearing on the bus next to you, and a film star blaspheming on the silver screen of a public cinema - both would be public utterances, and both would be liable for prosecution," Dr Zammit Maempel explained.
The Classification Board is unequivocally being instructed by the court to ban scripts and films that contain blasphemy. Not banning them would, according to the court, create a basis for discrimination against the ordinary man in ordinary circumstances who finds himself facing prosecution and conviction for having blasphemed in public, he said.
Using the same yardstick, the police would not have been out of line if they arrested Kid Rock for using expletives on stage during his Isle of MTV performance last Wednesday. Likewise, they should be on the alert for the explicit lyrics of rapper Akon, who will be performing in Malta next month.
Musical concerts do not fall within the remit of the Classification Board, which in itself gives rise to an anomalous situation since artists who perform according to a script find themselves subjected to the scrutiny of the Classification Board, while those who put up an unscripted performance are free to go ahead without prior scrutiny.
"It seems therefore, that whereas our local acting community runs the risk of having a gagging order placed on them before being allowed to perform, other performers can go ahead with their non-scripted performance and face the consequences of the law, if any, at the discretion of the police," Dr Zammit Maempel said.
Asked if he was aware of a similar judgment in a European state, the lawyer said: "None to my knowledge, but surely you will forgive me for not knowing the finer details of the legal situation in some isolated pockets of Europe, such as Belarus."
The rage against the state machine
The producers' lawyers said they would appeal against the decision and are even prepared to take the case to the European Court of Human Rights.
The arts community and theatre audiences have protested loudly at both the Classification Board and the court's decision, with many questioning why a higher authority should forbid them from buying a theatre ticket out of choice to watch a play at a specific venue.
The Front Against Censorship even questioned whether a society which censors the wilful viewing of art by adults deserves to be called civilised.
The Association of Performing Arts Practitioners said the ruling would not only seriously stifle creativity but also discourage foreign artists from working with their Maltese counterparts.
The judgment had the almost explicit consequence that artists would not be allowed to examine the darkest corners of human existence, for fear of censorship, the association said.
In solidarity, several Facebook users have even changed their profile picture to a black square in a sign of protest against the court decision.
An outdated law?
The law states the Commissioner of Police may pull the plug on any plays which 'offend public morality', though the legal definition of morality is subjective.
Among others, Article 163 of the Criminal Code states: "Whosoever by words, gestures, written matter, whether printed or not, or pictures or by some other visible means, vilifies the Roman Catholic Apostolic Religion, or vilifies those who profess such religion or its ministers... shall, on conviction, be liable to imprisonment for a term from one to six months."
Article 164 imposes similar constraints on criticising other religions recognised by the state.
Article 208 of the Criminal Code provides: "Work is obscene or pornographic when its dominant feature is the exploitation of, or unnecessary emphasis on sex, criminality, fear, cruelty and violence."
What is deemed as obscene and pornographic is decided by a particular parliamentary committee. The only time this committee met was in 1975.
The case against gagging
In several countries not only has stage censorship long been abolished, but so has classification. This has been replaced by a system of self-classification, and if any audience member feels aggrieved by what he has seen on stage, he is entitled to file a complaint against the theatre production in question, which could face potential prosecution.
The power therefore rests entirely with the public that acts as a watchdog over the theatre.
The Classification Board's decision and court sentence runs contrary to recommendations made in the area. Back in 2002, a team from the Council of Europe had said that Malta's stage censorship was inconsistent with the principles of the CoE and the EU and should be abolished.
The National Cultural Policy Malta 2010 draft document takes a firm stance on freedom of expression with reference to the Unesco Convention on the protection and promotion of diversity in cultural expression and to the Council of Europe declarations.
The European Court of Human Rights states that freedom of expression includes the right to "shock, offend and disturb".
Double standards
Local arts have ventured into new territory in recent years, with artists and drama companies pushing the boundaries in a predominantly conservative society. Many find it ironic that the Classification Board banned Stitching - a play which had no nudity or sex on stage - and yet failed to act on the following recent productions and films in local theatres.
Drama
4.48 Psychosis (Manoel Theatre/ Malta Drama Centre) - Written by Sarah Kane, who committed suicide shortly after completing this play, the script is littered with blasphemy and foul language.
The local play even included a scene depicting a priest hearing confession from a naked woman while she was showering in a glass cubicle.
Fatboy (Ideas Alive) - John Clancy's brutal comedy is peppered with obscenities. In this sinister burlesque, the main character kills or enslaves everyone and everything in his sight.
Blasted (Unifaun) - The play depicts cannibalism, graphic violence and two men having sex on stage.
Films
Burn After Reading - The same 'blasphemy' uttered in Stitching is repeated - three times.
Choke - The film is about the obscene habits of sex addicts. The main character is told he might be the son of Jesus Christ.
Bruno - Containing strong and crude sexual content, graphic nudity and language, Sacha Baron Cohen's shock humour is predominant. At one point he even refers to his posterior as his "Auschwitz".
What do they think?
Fr Joe Borg - Media commentator
"Restrictions on freedom of speech or artistic creativity should always be kept to the absolutely necessary minimum defined, among other things, within the socio-cultural and legal parameters prevailing in society at a particular point in time.
"The court's evaluation of this criteria led it, quite rightly, to the decision that the banning of Stitching did not violate fundamental freedoms.
If newspaper reports are anything to go by, the court's sentence was both exhaustive and studied. Critics of the play, including me, welcomed the decision as a defence of human dignity.
"Stitching crossed a very fine line: it explored perversity without the necessary artistic depth which could have redeemed it. In a society where such things happen every 10 years, the accusation that the court's decision puts freedom under threat is a hollow one."
Dr Julian Vassallo - Lawyer and head of the European Parliament office in Malta
"I watched the play, and while it cost me my appetite for an after-theatre dinner it kept me thinking for several days of just how mentally devastating losing a child must be.
"Speaking purely from a personal perspective, if the judiciary thinks that banning plays in the internet age will have any impact whatsoever on the culture and morals of this country it is deluding itself.
"For several reasons I find parts of the argumentation in the judgment very troubling. Perhaps one day we will find it reproduced by a court in some unsavoury autocratic country. On the other hand, I suspect the chances of this line of reasoning being picked up in another European court are close to nil."