When Magistrate Victor George Axiak said legislators should seriously consider updating rules on the secrecy and confidentiality of court proceedings, he, no doubt, wanted to ensure the proper administration of justice and that the ends of justice are not prejudiced.
However, for the rule of law to truly prevail, there has to be accountability and liability and this, in turn, depends to a large extent on exposing and investigating wrongdoing.
Exposing lawbreakers is a role investigative journalism has long assumed. In the wake of the post-2013 scandals and the systematic inaction by the forces of law and order, that has now become crucial.
The media should not, therefore, be unnecessarily hindered in its work. Indeed, systems should be in place to facilitate responsible journalism and offer adequate state protection in the widest context possible.
The courts are increasingly giving more weight to the function of the press as a ‘public watchdog’ in a democratic society, informing the public on matters of public interest.
Magistrate Axiak made his observation in two judgments dealing with news articles that contained details similar, if not identical, to what emerged from voice recordings exhibited as evidence in the case against Yorgen Fenech, accused of complicity in Daphne Caruana Galizia’s murder.
During the compilation of evidence, the court ordered that parts of the proceedings take place behind closed doors in the interests of justice. It also banned publication of copies of documents forming part of the records of the case.
The publication house denied the news items were based on the material the court felt should remain confidential, though the magistrate calling for the updating of the rules doubted that.
At stake are two very sensitive issues that must be thoroughly studied before any changes are made.
Impunity persists and scoundrels still scratch each other’s backs, which makes the quest for truth imperative and a priority. Therefore, rather than providing for secrecy and confidentiality, the aim should be to ensure the free flow of information because publicity is the best moral disinfectant.
The findings of the Caruana Galizia public inquiry contain enough examples as to why allegations need to reach the public soonest and not seek ‘legal’ reasons to slow everything down, hoping all will be forgotten or diluted.
The other sensitive issue that emerges is the protection of sources. Information can and does reach investigative journalists from various sources.
If, as in the case mentioned above, the information published is very similar or identical to that covered by a court ban, is the media expected to divulge its source to prove it did not violate the magistrate’s decree?
Only last March, an Old Bailey judge decided it was not in the public interest to order a journalist to hand over to the police information that would identify a man who had confessed he had been involved in the 1974 explosions that left 21 dead and more than 220 injured in Birmingham. The journalist had used the information obtained through the confidential sources to prove that six innocent men had been wrongly convicted and jailed: a miscarriage of justice.
At the centre of the case before the Maltese court is information – even if still allegations – that could lead to the prosecution and conviction of lawbreakers. Perhaps even expose a frame-up or attempted frame-up.
Keeping such information hidden from the public could mean some people may well evade justice. Upholding high principles and values are an integral part of meting out justice.