Judge Philip Sciberras, in his capacity as a lawyer, yesterday defended author Alex Vella Gera in an appeal filed by the Attorney General following a judgment clearing the writing of distributing pornography through the publication of a crude short story.
Addressing Mr Justice David Scicluna, one of his colleagues until last October, Judge Sciberras said the Attorney General was “out of touch with historical realities of society” and that the appeal was “unfocused”.
Magistrate Audrey Demicoli had acquitted Mr Vella Gera and Mark Camilleri, editor of the student newspaper Ir-Realtà where the story had been published.
The 1,300-word explicit story, entitled Li Tkisser Sewwi (Fix What You Break), had been banned from the University in October 2009 and Rector Juanito Camilleri had filed a police report that led to the arraignment of both the author and the editor.
Magistrate Demicoli found that the prosecution had produced no evidence to define public morality in Malta and how it had been infringed. The court felt that public morality was something that changed over time and what offended public morals 20 or 30 years ago did not necessarily do so now because realities changed, including the media.
Furthermore, the publication was limited to students at the University and the Junior College, who were mature and who had free access to a variety of media including books, newspapers and the internet.
The writer had exercised his freedom of expression through a literary work and no crime had resulted, the court ruled.
But the Attorney General disagreed and in his appeal argued among other things that Mr Vella Gera had disregarded the common good by writing an obscene story that imposed his “individualistic interests” to the detriment of innocent people.
When the appeal was being heard yesterday, Judge Sciberras said that to sustain his argumentation the Attorney General had referred to judgments handed down many years ago at a time when society was very different. One should take into consideration not what society was like when the judgments were handed down but what it was like today.
Times had changed in every way and this was the first aspect the court had to take into consideration, Judge Sciberras argued, adding that one must not forget that this case began with the University Rector looking for direction from the courts instead of stirring public debate on campus. “In today’s reality, if we were to take judicial action in cases such as this one, then we should start by proceeding against television stations, and do so every day,” the retired judge said. Nowadays, he added, through the media one could witness “war, rape and the Italian Prime Minister and his bunga bunga”.
Quoting extensively from the book, Il Cinema Come Nessuno Ve L’ha Mai Raccontato, by Francesca Romana Massaro, Judge Sciberras said the author was the daughter of a defence lawyer who defended directors and producers when they were charged with producing obscene films. In the book, court judgments and considerations were included and the court should also take account of some of the arguments made by members of the Italian judiciary on censorship, he said.
Lawyer, Philip Manduca, also representing Mr Camilleri and Mr Vella Gera, said the Attorney General had the onus of proving that the judgment handed down by Magistrate Demicoli was legally incorrect and unreasonable, which he failed to do.
He quoted German author Heinrich Heine, who died in 1856, who had said that “where they have burned books, they will end in burning human beings”. “We all know what happened in 1933. The Nazis burnt books and look how that ended,” the lawyer said.
Mr Justice Scicluna told lawyer Aaron Bugeja, from the Attorney General’s Office, he could reply to the arguments made by the two lawyers in writing. The judge gave him one month and said judgment would be handed down on December 7.