“On 21 May 2008, Magistrate Michael Mallia decided the application of Ivan Formosa. Formosa issued proceedings, on behalf of his murdered brother (Joseph), against Sharon Spiteri and Victor Aquilina of The Times, Francis Ghirxi of L-Orizzont and Michael Caruana and Joe Mikallef of In-Nazzjon for publishing articles inferring that his late brother (Joseph) was homosexual. The articles followed the murder of (Joseph) Formosa at his flat in Qawra. Police found Formosa's body on 6 December 1999.  (Joseph) Formosa's sexual orientation was not a matter of conjecture within Malta's gay community.

His Honour decided that naming someone a homosexual was no longer libellous. He went on to say that the test whether a "communication" is defamatory is that of the ordinary "reader" in light of contemporary standards notwithstanding the feelings of those who may have been personally affronted by the publication. A person's sexual orientation, he noted, was no longer a matter of public interest (interess socjali) given the yearning of contemporary culture to remove discrimination that is based on a person's sexual orientation and Malta's decriminalization of homosexual acts in 1973.

Well worth bearing in mind that the ordinary reader is one of ordinary intelligence in a liberal democratic society. The ordinary reader is not one of ailing intelligence who gives up reason, intelligence, deduction and argument for dogma, revelation and obedience to a higher unelected authority. He or she does not come with the trappings of religiosity and is not anchored in a stagnate religion that cashes in on nostalgia by its over-reliance on "tradition". Tolerance, not calumny and group assassination, is the mark of the ordinary reader. It is irrelevant whether he is god-fearing or godless. Or whether he shuns fish on Fridays, or derides pork or shellfish!

Liberal democratic societies are concerned with political society, not religious beliefs. They promote the "rights" of individuals rather than the "common good" (however that may be perceived). Institutions within them are called upon to be neutral and impartial. They have a duty to recognize moral diversity and treat individuals with equal respect and dignity without favouring some over others. Legal institutions do not adjudicate between variations of the "common good". His Honour's approach is refreshing. It draws a distinction between the secular and the divine ... no easy task in an island with its fair share of religious bigots and with courtrooms where judgements are delivered under the shadow of a crucifix.

Sadly, the victim's brother has appealed the decision. An appellate court now has to decide whether the ordinary (Maltese) "reader" is as "reasonable" and fair-minded as that moulded by His Honour. One hopes he is not that "ordinary" and that the appellate court will not force the views of religious bigots down our throats. Its greater challenge, however, is to decide whether Malta is indeed a liberal democratic society or a theocracy-in-disguise.”

Excerpt from forthcoming book by Joseph Carmel Chetcuti, planned to be published later this year or early next year.