ARTICLE 19 welcomes the decision of the First Hall of the Civil Court in its Constitutional Jurisdiction, which has found that the repeated forced removal of murdered journalist Daphne Caruana Galizia’s memorial in Valletta violated protesters’ right to freedom of expression. The Court recognised that a banner, candles, flowers and other objects placed in front of the Great Siege monument were protest objects and the expression of an ongoing protest calling for justice. It found that the decision of former Minister of Justice, Owen Bonnici, to order the removal was arbitrary and had the purpose of restricting the protest. This is a very important decision for free expression and the right to protest in Malta where social mobilisation and protests were unusual until Daphne’s killing. Her murder has awakened calls for justice and accountability to ensure it is not repeated and that there is redress for Daphne’s family.
Sarah Clarke, ARTICLE 19’s Head of Europe and Central Asia said: “We welcome this important Constitutional Court decision, ruling that the rights of protesters advocating for justice for the assassination of Daphne Caruana Galizia had been violated by former Justice Minister Owen Bonnici whose role was to protect these very rights.
“This is the position that ARTICLE 19 has consistently held since the protest memorial was created and repeatedly destroyed by the authorities. The Maltese authorities must now take full measures to ensure that the ruling is implemented and that the rights to freedom of expression and protest in Malta are protected.”
On 20 January 2020, the First Hall of the Civil Court in its Constitutional Jurisdiction ruled in favour of the right to freedom of expression of protester Emanuel Delia, a blogger and activist, who complained about the repeated removal of Daphne’s memorial by the Cleansing and Maintenance Division of the Capital City in 2018. The Director of the Division acknowledged that they acted in response to the direct instruction of the Minister of Justice, whose orders to clean the monument were held as illegitimate restrictions by the Constitutional Court under Article 10 of the European Convention on Human Rights (freedom of expression) and Article 41 of the Constitution of Malta (protection of freedom of expression).
In the ruling, Judge Joseph Zammit McKeon placed particular emphasis on the fact that protesters chose to locate the memorial in front of the Court of Justice of Malta, “a public prominent space which catches the attention of the public”, as this is where investigations into the murder are taking place. He also emphasised that protesters did not choose the location to become a permanent memorial. The Judge also recognised that the objects used in the memorial, including flowers, candles and a banner, were ‘protest objects’ not waste as the Government had argued according to local laws. Likewise, the Court noted that although this form of protest might annoy the Government or other public’s views, the order to clean the memorial did not meet the necessity test.
In addition the Court noted that the purpose of placing the objects on the site was serving as a watch-tower to “remind whoever has responsibility to observe the rule of law that all the persons which were directly or indirectly involved in the murder of Daphne Caruana Galizia would be brought to the courts, answer for their responsibilities, and take their justice”.
The Court concluded that it “has the firm conviction, which is based on the entirety of the evidence acquired in this case, that the removal of the protest objects was carried out with the specific plan and intention to hinder the plaintiff’s right, and that of others of his same opinion, to express his opinions freely in that manner, and from that site, that is, a location situated opposite the main door of the Court building.”
Importantly, Judge Zammit considered that the purpose of the protest held on a regular basis since the day after the murder of Daphne Caruana Galizia (16 October 2017) was a “call and loud cry for justice to be done”, not only to find out who was the executor of the journalist’s murder but also to pursue every lead given by the journalist with the purpose of revealing the crimes and the individuals who committed those crimes.
Manuel Delia, plaintiff in the case and well-known activist and blogger in Malta, commented: “The government sought to define what amounts to a protest, where it can be held and how long for. We are delighted the courts have stepped up to protect free expression in Malta and we hope that the government’s decision not to appeal the court’s ruling will result in a change in attitude towards public protest here.”
Eve Borg Costanzi, lawyer in Malta who assisted Manuel Delia in the case said: “This judgment recognises the right of protest as an integral part of freedom of expression; and not (only) as a formal gathering of people on a single occasion, but as a continued expression through the display of objects in strategic public places for a limited time – that is, until the protest has achieved its aims. The Court seemingly sought to establish one fine principle: that the State cannot dictate to a protesting citizen, the form, place nor duration of their protest, lest their protest be in vain.”
The freedom to choose the content, location, form and manner of a protest are set out under international human rights standards. Find out more by reading ARTICLE 19’s Right to Protest Principles.
Read an analysis of the case for Columbia’s Global Freedom of Expression.