This is not the kind of change we need

Daphne Caruana Galizia Sunday, 10 March 2013, 09:41 Last update: about 13 years ago

The idea persists in Malta – especially among a certain category of people who tend to have more right-wing sympathies and vote Labour – that maintaining control, even if only for its own sake, is somehow preferable to liberty.

If given their freedom, they panic and hunt around for their chains. If they see others make full use of their freedom, they object most strenuously and wonder out loud why nobody is putting a stop to it. They are citizens of an EU member state but they live in a mental prison akin to Algeria or Iran.

People like these, instead of objecting to anti-constitutional restraints on freedom of expression, call for restraints where none exist. On the Internet and in conversation, they ask each other why I “haven’t been stopped”, and weave all manner of conspiracy theories. It doesn’t occur to them for one moment that nobody can stop anybody writing what he or she thinks because that is a fundamental right.

Except in certain strange situations, of course – like the day before we go to the polls. Then we are not allowed to publish or broadcast any statement that might influence electors. The complaints against this law have centred so far on its pointlessness and the difficulty of enforcing it in the Internet age. But no news medium has bothered to challenge it, even if they have the considerable resources to do so. Because they obey the law religiously every five years, even as they complain about it, that law never gets looked at or changed.

When two police inspectors and the mandatory woman constable turned up at our home with a warrant for my arrest, the night before last, I can’t say I was surprised. I have been, several times, the object of selective police attention for reasons that we need not go into here. The arrest itself has been quite heavily documented elsewhere, so we won’t go into that, either. What interests me most is the fact that the police officers and I were on completely different wavelengths. They appeared to see the arrest of a journalist at night, by officers from the Homicide Squad and the Criminal Investigation Department, and her retention for two hours of interrogation, as pretty much akin to arresting, say, a shoplifter.

They really couldn’t understand why I was so cross and annoyed and wanted to know why I didn’t just go quietly and have done with it. All my talk of principles and human rights and the law under which I was arrested being illegal itself was lost on them. What was the big deal, I could see them wondering.

The big deal is that our constitutional right to freedom of expression is superior to any law that restricts it. Any such law is by its very nature anti-constitutional and because of that, it needn’t be obeyed. Indeed, it is our duty not to obey it because – so to speak – in obeying this law and in enforcing it, we are colluding in an illegality.

The law which bans political reporting and discussion on polling day and its eve is anti-constitutional. Everywhere such laws, or variations on the same theme, existed they have been challenged and declared abusive.

I was quite clear in my mind last Friday that an arrest at night is doubly abusive. The law used to arrest me is anti-constitutional in that it inhibits freedom of expression. And by coming to my home with an arrest warrant at night, this anti-constitutional law was abused because they should more properly have asked me to go down to the station for a quick chat. Perhaps they foresaw that I would do no such thing, hence the arrest warrant which was their weapon.

Article 41 of the Constitution of Malta regulates the fundamental human right of freedom of expression. It states unequivocally that total freedom of expression is the rule, and that this right can only be limited in exceptional situations – and when the limitation is absolutely essential to serve a particular purpose. These permissible purposes are listed in the Constitution and no other purpose is allowed.

Any limitation to freedom of expression, which is not listed among these permissible exceptions, is deemed abusive and anti-constitutional. The avoidance of influence on electors on the eve of polling day and on polling day itself is not listed among these permissible exceptions. It follows, therefore, that the law is anti-constitutional.

Permissible limitations can be made only if they are absolutely essential for the defence of the state, public safety, public morality/decency, and public health. It is not my purpose here to go into any of these permissible limitations. All we need do is note that influence on electors does not fall into any of those categories of public purpose.

Whichever party is elected to government today should repeal that law. No doubt it will have the support of the Opposition. But in between, there is a far more pressing responsibility: teaching Maltese people the value of freedom of expression, because what most appear to value more is the pleasure of curtailment.