Issue link: https://maltatoday.uberflip.com/i/584253
maltatoday, SUNDAY, 11 OCTOBER 2015 16 News M Ps debating a forthcoming bill for the removal of religious vilification from the Criminal Code have their work cut out for them. The Opposition and the Catho- lic Church are clear on the need to protect worshippers, of any religion, from so called 'vilification' – a crime that carries up to six months' impris- onment for offending worshippers. It has been a problematic crime for a society that aspires to European lib- eral standards but which hosts one of the most homogenous Catholic com- munities in Europe – not to mention that Roman Catholicism is constitu- tionally, the state religion. Problematic, because of the wide berth the law allows for the prosecu- tion of artists or broadcasters whose work offends the faith. Charlie Hebdo and masturbatory pontiffs? Possibly a very clear charge for vilification. It was PN leader Simon Busutttil who said that removing the deter- rent against vilification could easily be a threat to public order, suggest- ing that a liberal treatment of gra- tuitous offenders could bait religious hotheads to commit the unthinkable. Again, the Charlie Hebdo massacre looms large in MPs' heads. The Maltese conundrum is at the heart of a 'conflict' between two fundamental rights in the European Convention of Fundamental Rights: the freedom of worship and freedom of expression, rights which may ap- pear to be at loggerheads with each other. Article 9 grants everyone the right to manifest one's religion or beliefs, subject only to "necessary" limita- tions "in the interests of public safety, for the protection of public order." Likewise, Article 10 grants everyone the right to freedom of expression, but also sub- ject to limits that include the "protection of health or morals, the protection of the repu- tation or rights of others…" amongst other restrictions. The 'Otto Preminger Institut' case Supporters of Busuttil's cautious stand will cite the Otto Preminger Institut (OPI) case, an audiovisual arts club that took Austria to the European Court of Human Rights after it was prevented from screening the Werner Schroetr film Liebeskonzil. The film was banned on the grounds that it insulted the Christian religion. In 1994, the ECHR held by 6 votes to 3 that the banning was a justifi- able limitation on the freedom of expression, because the film would offend Austrian Ro- man Catholics. Sounds just like Malta. In fact the courts viewed the film and noted what they said was "the provocative portrayal of God the Father, the Virgin Mary and Jesus Christ" and that in seizing the film, the Austrian authorities acted "to ensure re- ligious peace in that region and to prevent that some people should feel the object of at- tacks on their religious beliefs in an unwar- ranted and offensive manner." The OPI case sets a debatable standard for Malta, where its national pretention to Cath- olic piety has often been invoked to suppress the arts. The ECHR noted that the Innsbruck police were in fact "better placed… to assess the need for such a measure in the light of the situation obtaining locally at a given time." But the three dissenting judges in the OPI case capture the sense of frustration with this stand. Freedom of expression is famously illus- trated as a fundamental feature of European democracies in the Handyside case (1978), when 20,000 copies of the The Little Red Schoolbook, written by Søren Hansen and Jesper Jensen – which contained a 26-page section concerning "Sex" for school-children – were seized by British police from the Handyside publishers. In Handyside, freedom of expression was accorded to ideas that also "shock, offend or disturb the State or any sector of the popula- tion", and that a government's interference with this right – though permitted – had to be narrowly interpreted. "There is a danger that if applied to protect the perceived interests of a powerful group in society, such prior restraint could be det- rimental to that tolerance on which plural- ist democracy depends," the judges stated, pointing out that the European Convention did not strictly guarantee 'a right to protection of religious feelings' – which is what Malta's Criminal Code does. Article 163 criminalises not just the vilification of religious faiths, but also the 'giving of offence' by vilifying those who profess their faith and its ministers, or its ob- jects of worship – a wide berth that can place any 'offensive' work of art in the dock. What the dissenting judges pro- posed in the OPI case was that freedom of expression should only be restricted by the authorities when they have to protect faiths and their adherents from abuse and intolerance. They said that those who avail themselves of the freedom of expression should limit the offence that may be caused. "The need for repressive action… can only be accepted if the behav- iour concerned reaches so high a level of abuse, and comes so close to a denial of the freedom of reli- gion of others, as to forfeit for itself the right to be tolerated by society." Which was the with the film Liebeskonzil: it was aired to a paying audience in an "art cinema" for a small public with a taste for experimental films, and with promotional posters that warned minors and the reli- giously sensitive to make an informed deci- sion to stay away. Malta's own 'Otto Preminger moment' must certainly be the ban on Unifaun Thea- tre's interpretation of Anthony Nielsen's Stitching. The Maltese courts upheld the censors' ban, saying there was "nothing un- reasonable in the board having viewed the play as being offensive to the culture of this country in its broadest sense" for "exalting perversion as if it was acceptable behaviour. Bestiality, the stitching up of a vagina as an act of sexual pleasure and having a woman eat somebody else's excrement, rape and in- fanticide were unacceptable, even in a demo- cratic society." The case is still pending before the Euro- pean Court of Human Rights, a judgement which will once again reopen old wounds on Banned: the Otto Preminger Institut in Austria was not allowed to screen Liebeskonzil (left) while France would not bat an eyelid at Charlie Hebdo's depiction of the Father, Son and Holy Ghost propagating each other... 1948 Police v Peter Bridle A Jehovah's Witness was prosecuted for selling literature on Kingsway deemed offensive to the Roman Pontiff [a 5c pamphlet titled 'The Watchtower explains the Theocratic Government']. He was then also charged for breaching the Press Ordinance which made "insult or ridicule of the Supreme Pontiff" a criminal offence. The Court of Appeal found that the book's claims against the infallibility of the Pope, the immortality of the soul and the falsity of the Trinity went beyond the limits of "rational and dispassionate discussion", and that sacred objects had been "gravely charged with scoffing". 1962 Police v Rokku Abdilla At the height of the conflict with archbishop Michael Gonzi, the Labour Party president of the Zurrieq club affixes a poster stating: 'Ave Nero, urbs quam incendisti te salutat' (Hail Nero, the city you burned greets you), ahead of a visit from Gonzi. His two-month jail sentence was reduced to 12 days. Judge Harding said that in an "eminently Catholic country like Malta it was injurious to compare the Archbishop on the basis of the cruelty of historical personages like Nero, the incarnation of iniquity." 1998 Police v Stafrace, Baldacchino, Busuttil The three were apprehended carrying out a black mass (13 March 1998 happened to be a full moon). The first court freed them because the alleged offensive ritual was not carried out publicly and that therefore, no element of offence was present. Judge Patrick Vella upheld the first court's acquittal, quoting Sir Anthony Mamo in saying that no apprehension was felt by a public "unaware of the irreligious act committed in private… to drag such into the limelight of judicial proceedings would do more harm than good." CRIMES OF OFFENCE the Austrian authorities acted "to ensure re- ligious peace in that region and to prevent ! ! ! Malta's own 'Otto Preminger moment' must certainly be the ban on Unifaun's interpretation of Anthony Nielsen's Stitching A RIGHT TO OFFEND Does removing religious vilification protect us from those who take offence, or should the prejudice of the mighty be cut down to size, MATTHEW VELLA asks? Does removing religious vilification protect us from