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‘Opaquing’ democracy

In 1947, Winston Churchill quoted an unknown predecessor and referred to democracy as being “the worst form of government, except for all the others”.

Democracy is very fragile, however, and is not limited to the occasional election. Its survival depends on much more than just the direct expression of citizens’ will through the ballot.

The balance between the various institutions that constitute the mechanism for exercising democracy and the goodwill of the democratically elected government is key.  A democratically elected government is not necessarily a democratic one, as its actions might fly in the face of all that democracy stands for, such as is the case with this Labour government.

A key pillar of the democratic balance in a country is its judiciary. The checks and balances of the democratic mix of institutions should prevent an elected government from turning a democracy into an autocracy.

We are therefore justifiably concerned at the steady undermining that our institutions are facing. Certain appointments to the judiciary in these four years of Labour government have been fraught with controversy and served to erode public trust in the administration of justice.

To add insult to injury, a government minister is using the judicial system to attack another pillar of democracy, namely the press.

Libel proceedings are there to provide the delicate balance between the right to free speech and the right to protect oneself against slander. The garnishee, or as it is better known in Maltese sekwestru, obliges a defendant in a civil case where ownership of a certain value is being contested to place that same amount in  a position where its allocation to the winner of the dispute is guaranteed after the judgment.

The garnisheeis being used to pre-judge the case prior to giving the journalist the chance to prove her case

Using this mechanism in a civil libel suit by a sitting government minister on four libel cases presented at once against one journalist, Daphne Caruana Galizia, inflicts the ‘punishment’ foreseen from the very outset of the proceedings. This technicality is being used to pre-judge the case prior to giving the journalist the chance to prove her case. This is a mind-boggling precedent and a suppression of the free voice of the press.

The case in question is a high-profile political one. The published allegations were against a prominent political figure, a government minister on official duties abroad, and there is therefore another court at play, the court of public opinion. This court has already seen the detailed allegations and third-party corroboration acquired by other journalists. 

Confronted with this, the minister has steadfastly refused to prove he was anywhere else other than, as alleged, at the brothel. He has refused to respect public opinion by not presenting the evidence he claims to have, which I hope will not just be an anonymous receipt for a beer at the bar. He has used multiple garnishee orders, which go far beyond the financial impact on the journalist in question and are meant to dissuade the free press from uncovering any more sleaze, corruption or wrongdoing.

The role of the free press in a democracy is to uncover the truth. The only guarantee of transparency and accountability for a government is a press free from the shadow of threats and other muzzling actions. The minister’s actions are the antithesis of transparency and a proactive attempt to‘opaque’ our democracy.

In an article entitled ‘How to build an autocracy’, David Frum, a senior editor at The Atlantic and former speechwriter for George W Bush, describes how he sees the United States under Trump going down the path towards illiberalism. He quotes Larry Diamond, a sociologist at Stanford, who has described the past decade as a period which has seen the number of democratic states diminishing and, within many of the remaining democracies, the quality of governance deteriorating. 

He also wrote that “the benefit of controlling a modern state is less the power to persecute the innocent, more the power to protect the guilty”.

In Malta, it seems to be both. The signs are there, and our democracy is at risk. It is up to us to stand up and make sure that we defend what we still have and regain what we have lost. Nobody else will do it for us.

Frank Psaila is a lawyer and anchors Iswed fuq l-Abjad on NET TV.

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