It was a somewhat cold morning on September 25, 2018. A small banner, just in front of the law courts, bearing the word ‘Justice’ alongside the flag of Malta, was situated under The Great Siege Monument. Alongside it, several plastic-coated candles and flowers. Later in the evening of that same day, all of it, would disappear.
Those flowers, candles, flags of Malta and a banner decrying ‘Justice’ were nestled under a medium-sized black-and-white portrait of a real-life person. They would appear, and disappear, again, and again.
The justice minister at the time argued that the nature of ‘freedom of expression’ may be restricted insofar as statute law may be concerned. The Cultural Heritage Act protects national monuments from any act or neglect, which may alter the appearance of a listed ‘national monument’.
It sprung a court case, which concluded that it violated the nature of free expression. It specifically violated Article 41 of the Constitution of Malta, and Article 10.1 of the European Convention.
Article 10.1 of the European Convention is very straightforward. “Everyone has a right to freedom of expression” is the very first thing it proclaims. Then, it continues: “This right shall include freedom to hold opinions… to receive…impart information and ideas without interference” and so on. The manner of establishment is as follows: first, freedom of expression, then the essence of expression.
Let’s go beyond. The United Kingdom secures the right to free expression in Article 10 of the Human Rights Act of 1998. It first establishes: “Everyone has the right to freedom of expression.” Then, that the right includes, “opinions and to receive and impart information and ideas without interference by public authority”.
The Italian Constitution is very succinct: “Tutti hanno diritto di manifestare liberamente il propio pensiero con la parola.” It first establishes the “right to demonstrate freely”, followed with the ostensive essences such as “speech”, “writing” and any other “diffusion”.
Article 41 (1) of the Constitution of Malta is, first and foremost, much longer in text than the concise drafting of the previous statutes. Secondly, it does not establish freedom of expression first. Instead, it starts by declaring the exception. “Except with his own consent or by way of parental discipline”, then it follows with “no person shall be hindered in the enjoyment of his freedom of expression”, then the ostensive “to hold opinions without interference… to communicate ideas and information”.
For Article 41 to establish the exception to the rule first, then the rule itself, is one such unravelling of the intentions behind the law. Or, to ask the question: “Why even write the law like that?”
Freedom of expression, at least in Malta, is an absolute right, only until it isn’t- Andrea Farrugia
What are the exceptions to the rule? Besides the matter of “his own consent” and “by way of parental discipline”, which are both personal private matters. The nature of freedom of expression is public. As a right, while not binding, it is a given social fact.
If there is a complete and total opposite of such drafting, it would be the First Amendment to the Constitution of the United States.
It immediately declares “Congress shall make no law” before the matter is even introduced. Immediately after, the first establishment is interestingly not free expression but the specific establishment of religion. Then the “free exercise” of speech, the press and so on.
Freedom of expression, at least in Malta, is an absolute right, only until it isn’t.
For the justice minister to argue that freedom of expression may be restricted, despite the courts referring to the constitution and the European Convention, is itself a small but noteworthy detail. Malta’s case is unlike the United States, where First Amendment absolutists stand and affirm that there shall be “no law” that breaches the right.
Rights, in Malta, insofar as they are concerned, are only right until someone somewhere commits to a wrong. The ‘wrong’, with regard to freedom of expression, exists in Anton Buttigieg vs Paul Borg Olivier, where the court decided that restrictions to freedom of expression, if they are to exist, must do so in written law.
Therefore, Article 82A of the Criminal Code, which restricts expression in matters relative to “any threatening, abusive or insulting words or behaviour” specifically with the intent to stir up violence or hatred, the so-called ‘hate speech law’, exists with such jurisprudence in mind.
People have been arrested and also appeared in court specifically because of hate speech.
Malta, of course, is not the only country to legally enact restrictions on the basis of hate crimes.
Yet, the one which conjures even more controversy is that of censorship, with respect to vulgarity and obscenity. But what is vulgar to the eyes of the law? In the United States, Justice Potter Stewart, presiding over the case of Jacobellis, would infamously exclaim: “I know it when I see it.”
Obscenity is itself tricky. As it may be subjective, unless the law is clear in its protection of freedom of expression. Burning the American flag may be vulgar and obscene, yet, as the textualist Justice Antonin Scalia would profusely side, 5-4, in the case of Texas vs. Johnson, ruling that desecrating the flag is protected by the First Amendment.
The wrongs often committed is when the people on the other end, no matter the delivery of the right, are made lesser than the sum.
I may have the right to be free in my speech but it goes further than merely speaking freely. One may be free but, as Rousseau would say, everywhere we are bound by chains.
Was it obscene to decorate a public monument? Was it a hate crime to then remove the flowers?
Andrea FarrugiaThe courts made it clear in Delia vs Minister of Justice Owen Bonnici. The restriction was itself a farce. Yet, as it is understood, that the exception defines the subject holistically.
Freedom of expression is a right, only until people stop expressing themselves.
Andrea Farrugia is a law student.