Muzzling Democracy ?
By Ramona Depares
Malta has recently been hit by a spate of court cases involving abuse of minors. I am not going to write about the merits of the individual cases. Since I was not there to witness any alleged incidents, it would be presumptuous to attempt an opinion about what did, or did not, happen. Not that this is stopping the world and his wife from doing precisely that. Few people realise that spouting uninformed opinions on social media pending judgment can only damage both sides of any case. Apart from the public’s seeming omniscience, two other issues immediately – and worryingly – leap to the eye. The first is the apparent inconsistency on the part of the courts when it comes to publishing the names of defendants. The identity of a defendant is made public as a matter of course. The duty of the press to keep the people aware of court proceedings is actually a corollary to articles six and 10 of the European Convention of Human Rights: the right to a fair and public hearing and the right to receive and impart information respectively. No right is absolute, which is why the convention itself provides for exceptions in article six (1 “The press and public may be excluded from all or part of the trial in the interests of morals, public order or national security.” Like all conventions, the widest terms possible are used. It is up to each signatory country to legislate for specifics in line with the spirit of the treaty. Yet, our Criminal Code does no such thing and, instead, gives the judiciary maximum interpretative discretion to ban publication of any detail related to particular proceedings, including the name of the defendant and the entire proceedings themselves. Which is why we have situations where people facing proceedings for similar crimes are treated differently. Is it time to update the Criminal Code with definite parameters for this discretion? The whole legal profession seems to be in agreement with a resounding yes. Some crimes carry a heavier taboo than others. One such example is the sexual abuse of minors; the defendant is likely to live under the shadow of the accusation even if acquitted. Which is why it is essential that our courts are not perceived to be using their discretion cavalierly, sparing some and condemning others without any obvious rationale. The second issue to arise from these cases is even more worrying. The court accepted that the case against Fr Jesmond Gauci, the priest facing charges of defilement of minors, is heard behind closed doors. What this means is that neither the press and, much less, the public will have any clue of what isgoing on. Muzzling the watchdog of the public on a whim can only spell bad news for democracy Trials behind closed doors are a major exception in any democratic society. Justice must not only be done but also be seen to be done. The public needs to be assured that due process is, in fact,being observed. The press is the public watchdog, responsible for keeping the judiciary accountable to the public. Muzzling this watchdog on a whim can only spell bad news for democracy. Internationally, secret court proceedings always attract extreme scrutiny from human rights lawyers, prosecutors and the public itself. In most democratic countries, the decision to hold court proceedings behind closed doors tends to be taken in heavyweight cases that involve national security. Given the realities of a 22nd century lifestyle, the morality clause has fallen redundant. And even when national security is pleaded, there are numerous checks and balances to ensure that this discretion is not abused. To give but one example, all hell broke loose in the UK last June when the Crown Prosecution Service wanted to bring two terror suspects to trial behind closed doors on the basis of national security. The decision for complete secrecy was thrown out of the window in an appeal decision that was hailed as a victory by UK-based, civil liberties watchdog Liberty. In the words of policy director Isabella Sankey, “shutting the door on the core of a criminal trial is a dangerous departure from our democratic tradition”. This is because the exceptions to the right to a public trial are exactly what the word itself implies: exceptions to a rule that should, in general, be observed. Do the Maltese courts recognise this? Going by Maltese case history, when issues of perceived morality are at stake I am not 100 per cent convinced that the serious implications of hearing a case behind closed doors are given the weight they deserve. It almost feels as though it is acceptable for our courts to give the word ‘morality’ the widest interpretation possible. In this day and age, is the presence of a sexual element enough to constitute a challenge to public morals (whatever those may be)? It would take someone very naive to genuinely believe this. Yet, everytime the morality clause is invoked in court, it is practically impossible to overturn, simply because the discretion granted at law is so wide. What’s all this fuss about being allowed to report on a sex abuse case, you might ask. Is it just a matter of provoking readers, to get mileage out of someone else’s misery, or even just to render the news a tad more exciting than the daily doings of your average politician? Anyone who really believes any of the above must be extremely short-sighted. It is essential that the press is allowed to do its job unfettered, keeping all three pillars of a democratic society in check. In the absence of this, no matter how sporadic the exceptions, it is democratic society that ends up the loser.
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