It emerges clear from the UN Declaration of Human Rights stipulates that certain rights are inherent to human dignity. As a consequence each person’s rights are limited to the extent that they do not impinge on another’s persons rights. Klaus M. Leisenger states that “rights may not be exercised and realized without corresponding responsibilities and obligations”[1]. Human beings are endowed with reason and should thus act towards each other in a spirit of brotherhood.

Such rights are at the core of Christian Democrat thought. Christian democracy holds that these rights are inalienable and thus no person may excuse breaching another person’s rights by overemphasizing his own.

Undoubtedly, a link exists between morality and the law, although it is commonly accepted in modern times that it is false to assert that all that is immoral should also be illegal. This is because each person is entitled to his own set of beliefs and there may be differences between one’s moral values and those of another. Only one criterion distinguishes between the realm of morality and that of law. This criterion or tool is the ‘common good’.

Following the current national debate on censorship it seems that few understand the true meaning of the term ‘censorship’. The term can be said to have two meanings. Censorship can be interpreted to mean the filtering of what media is accessible and what isn’t. This would involve the absolute prohibition of certain material. This exists in all jurisdictions such as in the case of child pornography.

Censorship could also mean control over access. Certain media is allowed to be easily accessible to the general public. Other media is restricted in the sense that it is not completely banned but is allowed a restricted audience. This kind of censorship is also found in all countries. In fact it is common to find artistic productions which may be viewed only by an adult audience. Such censorship protects impressionable children and other sensitive members of the community. Thus it is nonsensical that a person asserts himself to be against censorship without qualifying such statement.

It is almost impossible for a person to judge what can be deemed to be a work of art. In fact this question itself forms the subject of several works of contemporary art. As Christian Democrats we believe that artists should not be restricted in their work and that there is no competent human judge of art. Therefore there can be no committee of persons who determine what is to be completely banned (illegal) on the basis of what can be regarded as art, however it is acceptable that a determination is made on the basis of the ‘common good’ criterion. As a result, child pornography should be absolutely prohibited since its production entails the infringement of a law which is there to protect young members of society.

It is also necessary that a determination is made as to which material may be accessed by who. It is a question of how certain material is distributed and not whether it is distributed or not. Such censorship does not go into the merits of the particular work of art but looks at the effects it can have on other persons, thus it does not question its artistic value. This kind of censorship is concerned with balancing the rights of one person with the rights of others and is referred to by the European Court of Human Rights as the ‘Proportionality Principle’. Again the only criterion is the ‘common good’. It is not contrary to the common good to sell pornography, however it would be contrary to the common good to broadcast such pornography on public television stations at 4 o’clock in the afternoon. It is not illegal to speak of race as a biological distinction but it should be illegal to incite hatred towards a particular race.

Thus although pornography may be sold, its marketing should be restricted so as to ensure that persons who access such material actively seek such access. Every person has a right to make personal choices and every person has a right to be informed about his choice.

It is not difficult for a person to identify what can be offensive to others. To try and define what is offensive would be conceptually similar to an attempt to define art. Thus an ad hoc approach should be adopted. Any person born and raised within a particular society is capable of identifying public morals and is capable of understanding gradual changes in public morality. Society evolves. Public Morals change. The Maltese Courts have recognised this fact.

When doubts arise as to what is offensive and what isn’t, prudence and caution are essential. When such doubts exist the person publishing the potentially offensive material should inform his audience of the content of the production. Other than that no art other than art the production of which involves breaching the law should be absolutely prohibited.

A final point which seems to form a central part of the current public debate is whether a person who offends public morals should be sentenced to imprisonment. It is useless to go into the merits of cases currently pending before the court. The media should not try to influence the court in its deliberations and one should show faith in the court’s reasoning capability. We should not forget that nowadays it is common for the courts to grant suspended sentences and it is possible for the court to award a sentence which is less than that prescribed by law, where it deems it appropriate.

However, as the law is to be amended in the coming months, it is our recommendation that the punishment of imprisonment be removed from offences against public morals and reserved solely for recidivists. First-time offenders should only be punishable by a fine.

Centru Alcide De Gasperi