José Herrera's contribution on freedom of the press (December 23) takes a superficial view on freedom of the press leading to a feeble justification of the court's ban on the publication of proceedings and names of the accused in a recent particular case.

Freedom of the press deserves a much better treatment. It is inherent in the basic human right of freedom of expression that should be absolute. The only limit on this right arises when this right infringes on other basic rights that are enjoyed by all citizens. It is only in this light that one should view the laws of libel and the practice of the courts to issue bans on publication in certain instances.

Although, on paper, freedom of the press has been "guaranteed" for some time, the way the libel provisions in the press law were interpreted by the courts made any editor very wary of what to publish and in fact the system led to a situation of auto-censorship.

The situation might now have changed somewhat for the better - but for a long time the courts gave the strictest interpretation of the libel clauses in the press law. Exposing anyone to public ridicule was a crime, to the extent that a newspaper was found guilty of libel after a report on a football game said that a linesman "waved an imaginary off-side". The linesman sued for libel and won!

Personally, I was once found guilty of the heinous crime of writing that there was a "mafia" in the Xandir Malta newsroom. All the employees in the newsroom took exception to this and sued for libel.

The court would not accept that the word "mafia" must be seen in the context of the whole article. To prove that the word "mafia" has in fact different shades of meaning, I even produced a copy of Time magazine that had reported that the then US President Jimmy Carter had brought into the White House a number of people from Georgia - his state - and that these were known in White House circles as the "Georgia mafia".

For the court, the word "mafia" referred to a secret criminal society and therefore what I had written meant that all the employees of Xandir Malta's newsroom were high exponents of organised crime!

In another case, a writer of an article was sentenced to 10 days imprisonment for his comments on a minister to the effect that if the Prime Minister wanted to ruin the particular sector for which the minister was responsible he could not have made a better choice! Ten days imprisonment for daring to expose the minister to public ridicule in such a manner!

Were the offending words a cheeky comment or a fact? Incredibly, the court treated them as reported fact - a "fact" that the accused could not prove to be true. For the sake of historical accuracy, I have to add that the Court of Appeal later converted the term of imprisonment to a fine.

This case was also ignored by Dr Herrera when he claimed that in the last 50 years only one person accused of libel had to face a prison sentence.

Today the situation is quite different. Recently the courts suddenly started to look at libel cases through a different perspective. Certain complaints started being considered as frivolous because they were referring to comments that are normally accepted in a democratic society. Had the learned judges of Malta seen the light?

It was actually the politicians who had seen the light. Malta's accepting the right for individual petition in the European Court of Human rights led - perhaps unwittingly - to a very important step in the march towards more freedom of speech in Malta.

The Maltese judiciary suddenly realised that their judgments could be scrutinised in Strasbourg and suddenly their interpretation of what constituted libel changed to one more attuned with the norm in Europe.

Suddenly what was obviously libellous became obviously "frivolous" or "normally acceptable" - even though the law per se had not been changed!

One aspect of the libel clauses that we seem to have taken for granted and even accepted is the matter of malice, or as the Americans would have it, malice aforethought. Whether a story or the comments complained of had been made in good faith or not is always considered irrelevant by the courts so far as guilt is concerned - although some leeway is sometimes allowed in the punishment.

For the law, the deliberate malicious lie or the inadvertent untruth emanating from some casual misleading information is the same - in sharp contrast with the situation in some other countries, notably the US. Watergate, for example, could never have happened in Malta. Any newspaper editor in Malta doing what The Washington Post did to Mr Nixon would have still been lounging in prison even after the President - or whoever - ended his full term of office!

In Malta, the test is what the ordinary reader understands - even though substituting a magistrate or a judge for the common man in the street does not seem to perturb the same magistrates or judges.

A frivolous story on girls and sailors, titled Every Girl Loves A Sailor, carried a file photo showing identifiable Maltese girls. One of the girls sued for libel, claiming that the photo had put her in trouble with her fiancé. She was awarded damages - even though it was clear there was no malice in the story and the picture editor had just picked a photo from those available in his library.

Legal repression of the freedom of the press, however, was not restricted solely to libel cases. There were at least two other laws that were used to prosecute editors. One concerned the privileges of the members of the House of Representatives. As an opposition MP (1976-1987), I was present for a number of cases when persons were brought before the House accused of breach of parliamentary privilege.

Every time this happened, my mind kept telling me that there was something wrong: this was a "kangaroo court" where the accused stood no chance and his fate depended on the majority of the members in the House. They not only acted as prosecutors, judge and jury simultaneously but were also the offended party!

The situation here changed following one particular case involving something that was written in a satirical paper that is now defunct - as all satirical papers seem to be today. The importance of this case is not in the merits of the case - if there ever were any frivolous comments, they were those words on which the government of the day pounced. The importance of the case rests on the historical fact that it led to a case lost by the government in the European Courts of Human Rights in Strasbourg. The case in Strasbourg, however, was based on the lack of an independent and impartial court that tried the accused - and not on the right for freedom of expression.

Incidentally, there are other laws on the statute book that threaten the freedom of the press. One of them is the Prohibition of Seditious Propaganda Ordinance that was imposed in 1932 by the Colonial powers in circumstances that were quite different from today.

The definition of "seditious material" in the law makes it quite clear that any printed or written material could be considered to be "seditious material" under five different circumstances, the fifth one being if this material foments "discontentment or disaffection amongst the inhabitants of Malta".

Today this part of the law is more observed in the breach. Most probably it will not pass the Strasbourg test. Nevertheless, it still is on the statute book. On a personal note, I have to point out that I am the only person that has been accused of breaching this particular law, at least since Independence in 1964.

The President of the Republic is also a privileged person so far as to what comments about him can be published - even though recent incumbents have preferred not to apply the full sanction of the law when prima facie the law was broken. This was not the case for others in other times.

The issue of the court's right to ban publication of particular proceedings or particular details - such as the names of people accused in court - is another aspect impinging directly the freedom of the press.

A democratic society does not allow for secret trials and court proceedings must be necessarily heard in public. The right of the press to report them is even comforted by such reports being exempted from the provision of the libel laws. In my opinion, however, many of these bans infringe the ordinary citizens' right to information, another inherent aspect of the right for freedom of expression.

Unfortunately, it seems there are no guidelines on how and when these bans are issued and it is glaringly obvious that certain people - lawyers, doctors and high-profile businessmen - enjoy the protection of these bans to a much larger extent than the ordinary citizen. This tacit discrimination leads to abuse.

Dr Herrera makes the case that the media could "over-step the limits of prudence" and prejudice the outcome of a case. This tenuous argument could apply only in cases that lead to trial by jury but the courts are known to have resorted to bans in other cases.

Even here, I am convinced that most of these court bans will not stand the Strasbourg test.

Is there any editor, out there, who is prepared to go the whole hog: publish and be damned... and then make our courts face the music in the European Court of Human Rights?