The jackals and the hyenas

The un/expected has happened. The Labour Administration, elected also on the strength of a profreedom of speech stance, is now on the defensive. Labour had promised (point 18 of chapter 18 of its 2013 manifesto) that it would be ensuring more freedom to j

Four years ago, during a visit to a remote gaming company in Ta’ Xbiex, the Prime Minister was quoted as saying, “Laws should favour the media but there must also be responsibility.”

Whereas the vast majority of journalists instinctively adhere to high standards, there are others who have no standards at all and are shamelessly irresponsible.

Take some people over at the MaltaToday stable. (Conflict of interest alert: MaltaToday is my bête noire.) They recently attacked me, quite savagely, when I exercised my freedom of expression and argued on Facebook about the despicability of elevating to hero status a deceased humanist who had spent his adult life promoting abortion and euthanasia. I sent them a letter in reply to their savage attack – they didn’t even publish it, despite their legal obligation to do so! In other words, many journalists are deserving while some are simply self-serving.

That said, the minority should not spoil the position of the majority, who are decent people and expect proper treatment at the hands of the State. Though in many, many ways, the bureaucratic State system is flawed, in many other ways the mature, fully-fledged State system tries to avoid spilling civil blood and making civil hands unclean. In other words, political and private scores are settled in a civilised way, in Court, by an independent and impartial high-ranking State official tasked with determining who among the contending parties is closer to the truth based on evidence and argument.

The bureaucratic setup created by the liberal State, which protects freedoms in a bureaucratic setting (as opposed to WildWest-like or Godfather-like scenarios), is not a perfect system and it can be, and is routinely abused by the jackals and the hyenas. The garnishee order is but one of the many legal but immoral tactics found in the wily lawyer’s handbook.

There are a few other such tactics. For instance, a truly despicable tactic consists of first failing to point out what al- legedly caused the defamation and then accusing the defendant of not wanting to defend themselves!

This tactic was resorted to this week during a lawsuit instituted by the Prime Minister’s Chief of Staff against the Leader of the Opposition for defamation relating to the Panama Papers scandal. Mr Schembri failed to point out the allegedly defamatory words, only then to accuse Dr Busuttil of not wanting to defend himself! This was clearly an abuse of the bureaucratic system.

In this case, however, the tactic did not succeed, as the Court ordered Mr Schembri to provide Dr Busuttil with the allegedly defaming text. The question obviously is: Why did it have to be the Court to order something so basic? My answer would be, because there is clearly a lack of moral rectitude in the plaintiff’s mode of action.

Another tactic is the delay, that surreptitious cunctation of proceedings as a means of either harassment or (again, surreptitious and unsanctioned) deferment of judgment, or both.

This can be achieved in many ways. One of them consists in misleading the presiding magistrate.

I have in mind the case which my mother instituted in the criminal court against Saviour Balzan and Mark Vella of MaltaToday for publishing a defaming obituary on my father in 2011. The hearing was scheduled for 10:30am; the defence turned up at 9:00am and argued that since the main witness for the prosecution (my mother) was not there, the accused should be freed.

My mother’s lawyer had to ask the Attorney-General to appeal, the appeal was won almost two years later, and the case went back to the Magistrate’s Court where it is now still ongoing. This whole charade, perpetrated by people who have since been elevated to the bench (if you please), was reported in the newspapers. The case was uselessly and irresponsibly lengthened, wasting public money and the Courts’ precious time and resources, possibly because the accused’s counsel used to attend Cabinet meetings and knew that the decriminalisation of libel would really materialise one day or the other.

Therefore, I am seeing two phenomena taking place in contemporary Malta.

One, I’m seeing the party in government, quite typically now, proposing to go in one direction while its behaviour takes it on another, different path. While proposing a new law on libel, its lawyers’ behaviour in court is the complete antithesis of the spirit of the proposed legislation. How can your actions be in direct contradiction to what you preach?

Two, I’m seeing a party in government which is still suffering from electoral hangover. It got drunk on the euphoria of the huge electoral victory of 2013, and seems to have completely forsaken any semblance of decent behaviour. This attitude stultifies efforts to carry on with the important task of nurturing the Maltese Nation-State to maturity.

Freedom of the press is a cornerstone of any modern liberal democracy (in this context, by “liberal” I do not mean the opposite of “conservative”; I mean the rule of law, whereby the law grants freedoms and equality to individuals).

Legislation by itself is not enough to support the architecture of a bureaucratic State edifice founded on liberal democracy. The cement keeping the stones of such an edifice in place is moral principle. It is a quality that cannot be imposed by the State but emanates from the mentality or mentalities of the people running the State.

In other words, the real source of the community’s moral wellbeing is neither legislation nor State mechanisms – it lies in the hearts and consciences of the community’s rulers. And the lawyers whose services they engage.