Shocked producers of the play Stitching will take their case to the European Court of Human Rights after the Constitutional Court of Appeal yesterday upheld a ban on performing the production.
The judgment came the day before two enabling legal notices were due to be published in support of a new law introducing self-regulation by theatre producers.
Theatre company Unifaun had planned to stage it at St James Cavalier in Valletta in 2009 but it was banned by the now defunct Film and Stage Classification Board.
Without watching a performance, the board banned Stitching because of what it perceived as blasphemy, contempt for Auschwitz victims, dangerous sexual perversions, a eulogy to child murderers and references to the abduction, sexual assault and murder of children contained in the script.
The theatre company strongly contested the ban as a violation of the right to freedom of expression.
But the Civil Court ruled in 2010 that the ban was justified, prompting another appeal by Unifaun, culminating in yesterday’s judgment.
Both the Civil Court and the Constitutional Court upheld the ban without viewing a performance.
Yesterday’s Constitutional Court judgment by Raymond Pace,
Tonio Mallia and Noel Cuschieri declared that the right to freedom of expression was subject to certain limitations.
The fact that Stitching had been staged in other countries did not mean it was acceptable in Malta, the court said.
The State was bound to protect the country’s values and ensure the sensitivities of the “silent citizen” were not offended.
The court added that the word “art” could not be used to cover blasphemy and the ridiculing of genocide.
In a statement, Unifaun said: “We are shocked at the level of incomprehension shown by the court in understanding that a script is not a performance.
“Malta is the only country in the world which has allowed a play to be banned without ever having seen a performance.”
It was equally shocked at the summary dismissal of the testimony of its witnesses, who had seen the play, while accepting the “totally false interpretation” given by the defence.
Unifaun pointed out that Stitching, a 2002 play about a troubled couple written by Scottish playwright Anthony Neilson, had been performed all over the world by actors of different nationalities, including a well-known Jewish actress.
“It is only in Malta we have discovered that the play may have elements of racial hatred.”
Explaining why it had no choice but to take the case to the European Court, Unifaun said: “Ultimately we feel that this sentence is not a gag on the play Stitching but on all artists.”
The court “has made itself the only interpreter of what is art”. This was a dangerous precedent that threatened all artistic expression on the island. Unifaun artistic director Adrian Buckle told The Times in October that he was hoping to stage Stitching in 2013 when the Bill on auto-classification was in place.
However, after yesterday’s judgment he said they would probably delay staging the play until after the European Court of Human Rights had ruled on the case because he did not want to distract from the next legal challenge.
“This is not just about Stitching anymore, it is about freedom of expression for everyone on the island,” he said.
Unifaun lawyer Michael Zammit Maempel said the new law meant there was no longer a need for a play to obtain a classification certificate before being performed, but that did not mean that producers could not fall foul of other Maltese laws.
As well as removing the stage classification board, the new law transfers theatre regulations from the Code of Police Laws to the Council for Culture and Arts.