The misuse and abuse of article 995 of our the Code of Civil Procedure to gag freedom of expression

Blogpost by a retired legal expert

Matthew Agius‘ article in Malta Today dated 6th January 2021 carries the subtitle: ‘Court decrees that publications that “disturb court officials including lawyers and prosecutors” in their work are an attack against the administration of justice.’

I fail to understand the gist of the subtitle for the simple reason that, to my knowledge, unless the EU – in its misguided wisdom –  has passed a specific law to this effect, court officials,  lawyers and prosecutors are not a protected species from criticism or mention in the media. Like any other mortal, whether man or woman, they have to simply carry out their duties and get on with it.  Should they be under a misapprehension that they have an anointed  right  over other mortals,  then we are really threading on dangerous ground.

Further on, in the same article, the journalist quotes: “insofar as reporting on the criminal proceedings against the accused before the court, applying recommendations and the teachings of the European Court on the subject it should only be the media and not private individuals who report about the proceedings and this to avoid as much as possible inaccurate or prejudiced reports “frequent intensive and generally negative  reporting on Fenech’s case.”

I would like to refer to the passage that accredited journalists should attend court as reporters. This is understandable but that it should be only the media that can comment on the proceedings is totally denying the right of citizens  – who after all contribute to the state’s coffers – the right to express themselves particularly when today’s journalist or reporter has a selective agenda when carrying out his/her duties. As for applying the recommendations and the teachings of the EC on the subject, I ask: Is it possible to give any credence to such a bleak scenario of Malta’s Courts prior to joining the EU that we have to rely on it so much to move on?

What we have here is a misreading or worse a misuse of article 995 of chapter 12 of Code of Organization and of Civil Procedure for the simple reason to gag freedom of expression. It should be pointed out that the request of the use of article 995 to silence dissent did not come from Yorgen Fenech’s lawyers.

The above passage in the Malta Today’s article, yet again sheds very bad light on Malta. Malta, to my knowledge, prior to joining the EU, enjoyed some very responsible reporters and journalists and brilliant editors if one would only take the trouble to check and read. But even more important read judgements meted out by our Judges and magistrates.  In this context, I am referring to our Judges and Magistrates in Criminal Court who were impeccable in their learning and knowledge and to the best of their abilities, impartial.  Unfortunately, the scenario is not as rosy today. It has become a matter of wanting to live only in the present and not wanting to learn anything from the past to prepare for the future.  The future being sown for future generations is bleak indeed, unless matters begin to change drastically.

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