The Book of Judges by the book

“F’din l-art li ma tafnix, f’dis-siegħa sewda

Inħobb u nisħet.”

The Shift turned three this week. November is the month of remembrances of sorts. Civil society and the media were busy remembering the turn of events this time last year that accelerated the quest for justice and truth (at least we hoped).

Meanwhile on 19 November, in the hallowed halls of the Magistrates Court (criminal jurisdiction), a former One TV journalist turned magistrate delivered a judgment that should be framed in the halls of the Institute of Maltese Journalists as a stark reminder of the state of the Republic and its treatment of the fourth pillar.

‘Il-Pulizija v Jody Pisani, Mark Gauci & Emanuel McKay’, relating to journalists being locked in the prime minister’s office by Labour Bouncers after a press conference while people were protesting on the streets, makes for some challenging reading.

Spoiler alert: the judgment follows in the line of magisterial rulings that somehow only serve to be inconclusive. Just like the time when we were told that a magistrate was unable to discover who owned a particular offshore company, this time we are told that a Magistrate cannot find anyone guilty of anything.

And what a long-winded way to get to the point. Magistrate Mifsud’s judgment delivered amid little noise other than the usual trumpeting on Labour stations is an example of the effects of ruling by the law (as opposed to rule of law) – stretching its words to the limits of reason.

Pisani, Gauci and McKay happened to be in the Auberge de Castille on the long night of 29 November last year. On that night of protests outside parliament, disgraced former Prime Minister Joseph Muscat had elected to give a press conference in the early hours of the morning. You may recall the events that followed the press conference, which are well documented by a video taken by journalists present. Journalists were kept locked in Castille against their wishes, registered as a threat to press freedom, and Pisani, Gauci and McKay were among the ‘Bouncers’ identified as having allegedly kept them under lock and key.

Now the prosecution of this case, left in the able hands of the police accuses Pisani and the rest of illegal arrest, detention, or confinement as per the letter of the law. The limited nature of the accusation proved to be the impromptu Castille Bouncers’ saving grace.

In fact, the magistrate launches into a veritable lesson of criminal law and procedure taking great pains in specifying that the Court must be morally convinced beyond any reasonable doubt that the crime as charged was committed.

Going by the magistrate’s admonitions, the prosecution seems to have made a half-hearted attempt to go through the motions and this led to the eventual absolution of the Castille Bouncers.

Still, let us set aside the inadequacies of the prosecutorial capabilities (and will) of the police force in these circumstances. Let us also accept the final decision reached by Magistrate Mifsud based on a failure to convince. Having accepted all that, some of the conclusions reached by Mifsud merit mulling over.

Mifsud does not only go out on a limb to slap the hands of the prosecution for the inadequate case built before him. He has words to say about the journalists doing the reporting.

Why was it only two of them who physically reported the act of transgression? Were they trained enough to work ‘under tension’? Above all, he states, it cannot be said that the journalists had not voluntarily entered the conference room.

The observations themselves beg many questions. What tension is the magistrate speaking of if he later claims that there seemed to be more ruckus outside the room than within it? What number of journalists must file a report to make it valid?

Mifsud refers to various protocols (UN, Vatican) that deal with the safety and security of journalists. What need would there be for this when in the end he concludes that there was no proof of unjust treatment of journalists?

As for the Bouncers, the magistrate is clearly unmoved by the fact that “In these procedures, it is not clear whether the accused were giving any kind of service or who employed them to do so.”

In other words Paul Caruana Galizia’s repeated question on the night: “Who are you? Why are you locking us in?” remained unanswered. The presence of Pisani and the rest as doorkeepers remains totally unexplained.

In the end, the failure of the prosecution to prove beyond any moral doubt rested on the following facts (or lack of them) as elicited from the proof before the court: We do not know who gave the order to lock the door. There was more than one door from which journalists could leave. Control of the door was from the outside and not from within. There were other people (not only the accused) covering the doors. One of the accused is not seen using force to keep the door closed. No force was used on journalists. Once the doors were opened there was a “free for all“ (the magistrate’s words).

So, we do know that there was a tense situation. That unidentified, non-government employees were present to keep journalists (although without violence) in a locked room (from the outside) from leaving. That the journalists had arrived voluntarily but could not leave voluntarily. All this was not enough to obtain a conviction, but it leaves many questions unanswered.

In the words of a legal acquaintance of mine, for one night not only was the Labour Party (the Party, not the government MPs) in charge of Castille to ensure a ‘safe transit of power’ but it did so in plain sight, and the police, the prosecution and the Court can do nothing about it.

At the risk of prolonging an already unusually long piece, I would like to pay my respects to the great genius of Oliver Friggieri. He was a fundamental inspiration in my attraction to the political world and leaves an empty space that will be hard to fill. The words from his poem ‘F’Misraħ il-Parlament’ (From Parliament Square) are at the start and end of this article.

Thank you, professor.

“U ejja xemx. Iddub il-kartapesta

Ta’ dawn l-istatwi buffi li tellajna

Biex huma lagħbu bina w aħna bihom.”