It should have been the other way around, Owen

If an apology must come with a caveat, then it is no apology at all – that much is clear about Owen Bonnici’s most recent act of contrition in connection with the clearing of the protest memorial to journalist Daphne Caruana Galizia.

What’s more infuriating in his case is that the reason he insists on repeatedly using to justify his actions – that of trying to avoid trouble – has been dismissed by both recent and historical case law.

Yet Bonnici, a lawyer and former justice minister, remains apparently oblivious to these precedents.

The same tired excuse

During his tenure as Justice Minister, Owen Bonnici personally ordered the repeated clearing of the protest memorial to journalist Daphne Caruana Galizia and in his latest interview with the Times of Malta, Bonnici once again says that “In my defence, I did it in order to keep the calm in our country…”.

This is not the first time Bonnici has used this justification. When questioned during the course of the public inquiry into the murder of Daphne Caruana Galizia, Bonnici repeated the same line he used when replying to a joint open letter signed by international press freedom organisations.

Referring to the non-absolute nature of the right to freedom of expression, it was one of a number of justifications Bonnici used alongside the possibility of damage to the monument and the scheduled restoration work.

It was the same line of defence he took two years earlier, and one that the First Hall of the Civil Court in its Constitutional Jurisdiction ruled against.

Failing the three-point test

Not only did the court find that there was no damage to the monument and neither did any restoration take place, but Justice Zammit McKeon even applied the three-point test – “prescribed by law”, “legitimate aim” and “necessary in a democratic society” to see if any of the minister’s claims justified the repeated clearing of the memorial.  No claim passed the test.

What’s more, the notion that the memorial would cause trouble was also considered. The court asked itself whether the interests of public order and security could justify the clearing. It is no secret that the memorial attracts individuals who will try and undermine any respect shown towards the assassinated journalist and who in the past have both vandalised the memorial and been violent towards the protesters.

The judge referred to the 1986 case brought by Eddie Fenech Adami to claim the right to hold a public meeting in Żejtun. This was a case in which a right that had been denied in the name of public order, but where the courts found that Fenech Adami’s right had been breached. In using this example, the judge, in effect, said that it is the State’s duty not to suppress free expression, but to provide the proportionate resources for security.

That’s right – it should have been the other way around. If the protesters were lawfully and peacefully exercising their right, it was the government authorities, beginning with the police, that should have prevented the troublesome or violent individuals from interfering.

The Salvation Army

Enter the Salvation Army – Beatty vs Gillbanks 1882. We’re talking Victorian England here, but the principle behind this case is particularly relevant.

A religious organisation known as the Salvation Army would often use noisy street processions and open-air meetings as part of its recruiting strategy, testing the patience of seaside town residents and local authorities alike. What’s more, the Army attracted particular hostility from different segments of society. These included merchants worried that disruptions would discourage tourists as well as pub owners and brewers who disliked the Salvation Army’s stern views on alcohol consumption.

A group of agitators, allegedly funded by the brewers, was then formed and became known as the “Skeleton Army”. Altercations between the two groups frequently led to violence, and between 1878 and 1891 serious disturbances involving the Salvation Army occurred in more than sixty towns and cities.

The cacophonous street processions were particularly despised by the residents of provincial towns and in 1881 the magistrates from the town of Stamford, Lincolnshire pre-emptively sought the advice of the Home Secretary, William Harcourt.  Their goal was to prevent marches in advance, which they believed would secure public order more effectively than having to prosecute participants after the fact. The Home Secretary proved to be accommodating.

Numerous towns in southern England took advantage of Harcourt’s recommendation and instituted binding orders on processions based on the anticipated reaction of a hostile crowd – even if the Salvation Army parades were not illegal in themselves. One such place was the Somerset resort town of Weston-super-Mare.

Following a particularly ugly episode in March 1882, the local magistrates issued a directive instructing individuals to “abstain from assembling to the disturbance of the public peace.” Challenging the ban, the Salvation Army gathered anyway, and the police arrested three Salvationist leaders, one of whom was Captain Willian Beatty.

In June 1882 the Queen’s Bench Divisional Court had to rule on the correctness of Harcourt’s advice in Beatty v. Gillbanks. Mr. Justice Field argued that since the Salvation Army’s march was lawful and did not attempt to cause any violence, to stop them marching would be to punish a person doing a lawful act on the grounds that it would lead to another doing an unlawful act. Therefore, the order was summarily quashed.

The Maltese courts have referenced the relevant case law, the European Court of Human Rights has relevant case law, Victorian England has relevant case law. Just how many more examples does the former Minister for Justice Owen Bonnici need?