The Malta Independent on Sunday


What does Malta have to lose?

- Helena Grech

Shadow Minister for Justice Jason Azzopardi believes that in the name of public order, logic, timing and a number of other reasons, the government’s decision to repeal the vilificati­on of religion could be an unnecessar­y risk.

Earlier this year, as part of a series of amendments to the Criminal Code, Parliament voted in favour of repealing the vilificati­on of religion. The Opposition voted against this amendment at committee stage, however voted in favour of the other amendments being proposed at the time, such as criminalis­ing revenge porn.

Strips of bacon placed inside a Koran at the Mater Dei Hospital multi-faith room in recent weeks rekindled discussion­s on the removal of the vilificati­on of religion law, with Dr Azzopardi shedding light on why amendments to the law make it harder to prosecute people for inciting religious hatred.

“As the PN, we spoke, and we voted against the removal of the crime of vilificati­on of religion on various grounds. We did so on the grounds of logic, timing, and inconsiste­ncy with other safeguards in the Criminal Code protecting constituti­onal symbols, public order, and in view of various judgments of the European Court of Human Rights of Strasbourg upholding vilificati­on of laws in various European countries. These five are not in order of priority,” he explained.

Dr Azzopardi started by addressing the public order argument: “It should be obvious to anyone with a modicum of reasonable­ness. First of all, what is vilificati­on? It is not criticism, it is much worse.”

Interjecti­ng, this newsroom asked for confirmati­on that vilificati­on does encompass criticism, among other things, which Dr Azzopardi vociferous­ly denied.

“You are quoting section 82A of the Criminal Code which is inciting racial hatred, which now encompasse­s incitement to religious hatred. I am talking about vilificati­on, which is now repealed.

“I am pretty sure that if you had to do a survey, 95 per cent of people would think that vilificati­on would mean criticism or satire. Vilificati­on is none of the sort, to vilify is to go beyond simple criticism or mockery – in Maltese tkasbar jew izzeblah. Vilificati­on is much worse than criticism, satire or irony. Vilificati­on does not mean you cannot offend, shock or disturb. Vilificati­on is the worst form of contempt for religious sentiment which provokes or offends the religious sentiments of believers whether they are Christian, Hindu, Muslim etc.”

Questionin­g what the issue is when offending religious sentiments, in view of the diverse number of issues dear to peoples’ hearts which are offended on a daily basis, Dr Azzopardi said: “Do I have the right to offend your mother? If I offended your mother, who may be dead, wouldn’t I be inviting retaliatio­n and provocatio­n?”

Asked whether legislatio­n should be based on pandering to unstable, violent individual­s, Dr Azzopardi countered by asking “what right do you have to offend the religious sentiment of others? What law gives you that right? Freedom is not the right to do what you will, but the will to do what is right.”

Pressed on whether vilificati­on causes any real harm, he quickly replied “Of course you harm people when you offend the religious sentiment of believers.”

“The European Convention of Human Rights protects the fundamenta­l right to freely enjoy religious belief, and there are various case laws backing this up. It is a fundamenta­l human right to enjoy religious freedom. There are judgments saying that once there is the fundamenta­l right to enjoy religious freedom, which cannot be subject to provocatio­n, or being vilified.”

Turning to the issue of logic, Dr Azzopardi said:

“Let’s start conceptual­ly – you cannot have a fundamenta­l human right which the law allows you to breach in the name of another fundamenta­l human right of expression. This is first year law student material.”

Citing the European Court of Human Rights in Strasbourg, he said: “It is the manner in which the views are advocated and not the views themselves which the law seeks to control. You have a right to express your view, you have a right to ridicule my religion and take me for a ride, but it is the manner in which you express that right of yours which the vilificati­on law seeks to control.

"Strasbourg has made it very clear that it is not the view which the law seeks to control, or your right to express yourself, but the way you express yourself. You have every right to criticise or ridicule a religion, but that does not give you the right to get hold of a crucifix, put it in manure and piss over it. You have no right to get a copy of the Koran, go to Republic Street and say ‘as far as I am concerned, this is a roll of toilet paper’ and then tear it apart. For Muslim believers this is a sacred book; maybe not for you and me, but it is for them.”

Asked to go back to his original claim, where he questioned whether he has the right to offend somebody’s mother, Dr Azzopardi said that this is illegal – through defamation laws.

“We have a situation in our law where I cannot, rightly so, show any contempt – which is much less then vilificati­on – towards the president of the republic and the prime minister.

Section 72 of the Criminal Code makes it a crime – and people have been arraigned. Remember the hunter protest, where a hunter made a rude sign insulting the Prime Minister ended up arraigned in court? This was done for offending the Prime Minister.”

He expressed his agreement with laws safeguardi­ng against the vilificati­on of the President and the Prime Minister.

“Our laws state that you cannot vilify the national flag of Malta.. Refer to the Press Act and you will see that it is a crime with up to three months imprisonme­nt.

“We were thought that logic and the interpreta­tion of law go hand in hand, and if they do not something is wrong – definitely not in logic but in the interpreta­tion of the law. So it’s not OK to vilify the national flag, but it is OK to vilify the national religion.”

Pressed on whether the laws he cited could also be outdated and that rather than a matter of laws being inconsiste­nt or illogical, it is an issue of updated the remainder of the laws.

“Are we the only country in Europe having or retaining vili- fication laws? In Italy in 1983, the state made a pact with the Vatican where they removed the Roman Catholic religion from being the state religion, but retained vilificati­on as a crime for reasons of public order.

“Spain, Germany, Denmark, Austria, Finland have all retained vilificati­on laws for reasons of public order. Last year the Danish parliament set up a committee to debate and decide whether it’s time to remove the crime of vilificati­on of religion. In September 2015 this parliament­ary committee concluded that for reasons of societal good order and public order they should not remove the crime of vilificati­on of religion. So are we being fools rushing in where angels fear to tread?

“In spite of educationa­l campaigns, we are seeing terrorist activity and atrocious acts on the mainland. The security of citizens should be a top policy priority. Precaution is better than cure. What is better, pre-empting provocatio­n or addressing the consequenc­es of a violent act?

“Nobody has the right to offend the honour of another person – that is a crime. Vilificati­on is much worse. Arguing to its logical conclusion, while the law justly protects the integrity and honour of every citizen, should it not protect the integrity of religions? It does this for private citizens to prevent provocatio­n.”

Dr Azzopardi questioned why it should be OK to vilify religion for no reason whatsoever, “not to further any public debate, but just for the fun of it”.

Quoting the ECHR, he said that “religious believers cannot expect to be exempt from all criticism and must tolerate the denial by others of their beliefs. The state however has a responsibi­lity to ensure the peaceful enjoyment of believers’ rights. The state has an obligation to avoid expression­s which are gratuitous­ly offensive to others and as an infringeme­nt of the right and therefore do not contribute to public debate capable of furthering progress of human affairs.

“This is the test. In a democratic society, does this [vilifying religion] contribute towards a public debate to further progress of human affairs?

“If it is accepted that the religious feelings of the citizen may deserve protection against indecent attacks on the matters held

sacred by him, then it can also be considered as necessary in a democratic society to stipulate that such attacks, if they obtain a certain level of severity, shall constitute a criminal offence tri- able at the request of the offended person,” he continued, citing the ECHR again.

“In the sea of instabilit­y surroundin­g us, where even the slightest act is perceived by these terrorists, by these people of ruthless methods, to amount to a provocatio­n, what does society lose by preventing, or at least diminishin­g the provocatio­n?”

He then made the argument that since the introducti­on of the vilificati­on of religion in Malta, which provided greater protection to the Roman Catholic religion over others, less than five people have been arraigned in court. Dr Azzopardi maintained that while the Maltese courts and police proved not to be overzealou­s in their applicatio­n of the law, he questioned what Malta has to lose by providing some form of deterrent to stop acts of religious vilificati­on.

In the sea of instabilit­y surroundin­g us, where even the slightest act is perceived by these terrorists, by these people of ruthless methods, to amount to a provocatio­n, what does society lose by preventing, or at least diminishin­g the provocatio­n?

Asked whether an open democratic society should support laws which are made in response to violent individual­s, and where one draws the line in terms of vilificati­on laws – Dr Azzopardi maintained that public security should be a priority.

“The point is reasonable­ness. What advantage did society derive from having given the right to offend and provoke the religious sentiment of any believer?

“The PN suggested in Parliament of giving equal protection to all religions. I proposed giving protection to atheists – because an atheist believes that god does not exist. Give protection not just to traditiona­l believers.

“The government said it repealed the vilificati­on of religion law to protect artistic expression – this is bollocks and untrue. We are not being deprived of any artistic expression because of the laws of vilificati­on and there are copious judgments from the ECHR.

“Even if that were the case, let’s take it at face value that the government said it wanted to protect artistic impression. We proposed in Parliament that the vilificati­on law be excluded from artistic expression­s, theatrical expression­s and production­s.

“We could have easily struck a balance. The government answer to this is a red herring; they said they amended section 82A of the Criminal Code where it says you cannot incite religious hatred. This requires specific intent and it is very difficult to do this. Every criminal offence requires a material and an intentiona­l element. The two have to subsist together.

“Not every act of vilificati­on implies a specific intent to incite religious hatred. There are two different kettles of fish. An act can be pure vilificati­on but not amounting to the specific intent to incite to religious hatred. These are two different acts, one is provided by the law and the other is not.”

He explained that the problem here is that religious sentiments of people here are offended even though you are inciting religious hatred.

“After, god forbid, a violent act leaves a victim, who will assume the responsibi­lity that that act could have been prevented? Who would pick up the pieces?

“In this day and age, even a liberally minded parliament like Denmark specifical­ly voted to retain the law on the basis of good societal public order. What’s harming you from following the reasonable method followed by others?

“Germany’s criminal code still provides up to three years for vilificati­on, Spain 12 months, Austria six months, Finland six months, Denmark four months.

“Being in favour of the vilificati­on of religion law does not preclude you from freedom of expression. People believe that vilificati­on means you cannot criticise, take for a ride, mock or lampoon. The act of vilificati­on does not stop people practising religion either, but they have a fundamenta­l human right not to have their religion vilified, backed up by 40 years of case law.

“The fundamenta­l right to enjoy religious freedom – that automatica­lly implies you cannot have a right, which in the name of another so-called fundamenta­l human right, breaches the original right. You cannot have two fundamenta­l human rights clashing conceptual­ly.

“The fundamenta­l human right to religious freedom implies the right not to be gratuitous­ly offended, gratuitous­ly provoked. Do you remember the famous phrase – you have a right to shock, offend or disturb. In the case of vilificati­on, the offence must be of a certain severity.”

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