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A lot has been said about the judge, Giovanni Grixti, who has ruled that information obtained from the Panama Papers is inadmissable in court. The commentary has focused on the implications for cases of money laundering. But there is a broader political aspect.
The principle that evidence illegally obtained cannot be used in courts has a liberal pedigree. It protects ordinary citizens against unwarranted, invasive scrutiny by the State. The police are not permitted to fish for evidence against you without a proper warrant.
With the Panama Papers, though, invoking the principle has the effect, unintended or not, of protecting the powerful from being investigated. Scrutiny of suspicious behaviour by public servants is not only warranted. It’s necessary for democracy not to be a sham.
In liberal democracy, citizens have the liberties of free men and women while public officials have the duties of servants. Ordinary people have their privacy protected but public officials are scrutinised. Private individuals may get up to what they want, as long as it’s lawful; public servants need to be transparent, even when they break no law.
Individuals need be accountable to no one but themselves. Public servants are accountable to their masters, the citizens they serve. Individuals are free to engage in colourful behaviour even if it makes them controversial. Public servants are responsible for protecting the neutrality and reputation of their office, which means curtailing what they do.
Freedom of expression has been invoked to defend insults directed at ordinary people by public officials
Does this mean public servants lose their rights? No, but they have extra duties that go with the privilege of holding public office. If they don’t like those duties, they can just give up the office.
So the Grixti judgment goes beyond the immediate case. But something is wrong when a liberal law has illiberal effect.
The effect is part of a wider pattern. Freedom of expression has been invoked to defend mockery or insults directed at ordinary people by public officials like Tony Zarb and Jason Micallef.
What those two said was reprehensible even if you think, as I do, that Zarb was not guilty of hate speech when he called women protestors ”whores”; that he was not legitimising Daphne Caruana Galizia’s assassination when he showed he was glad she was dead; and that Micallef was mocking protestors, not Caruana Galizia herself, when he tauntingly cited the latter’s last words.
Their interventions were reprehensible because they were partisan and offensive. Although freedom of expression covers the right to give offence, it doesn’t cover public officials.
The right protects the weak against the powerful, individuals against collective pressure and the State. The right to give offence is included to prevent ordinary people from being shut up on the pretext that someone’s feelings were hurt. But it obviously doesn’t cover public officials.
Their office means they sometimes speak on behalf of everyone. They certainly represent their employer and the office they occupy, not just themselves. So they have a responsibility to preserve the reputation of that office and its impartiality between citizens.
The State is weighing in against those it is bound to serve
To permit an office holder to mock ordinary people is essentially to give licence to the strong. If a public official gets away with insults, the State he represents is in cahoots with the insult.
Instead of guaranteeing the rights of the weak, the State is weighing in against those it is bound to serve. Hence why it’s an illiberal use of a liberal freedom. Free expression is invoked with a chilling effect on free speech.
We see something similar – this time the invocation of a liberal norm, instead of a law or a right – when the members of a small NGO like Occupy Justice are expected to ”resign” because allegations of financial impropriety (which they deny) are made against them. And when they refuse to resign – which would actually mean dissolving the NGO – they are called inconsistent, since they are calling for the resignation of Konrad Mizzi and Adrian Delia on the basis of allegations.
Notice the exploitation of liberalism to turn accountability upside down. The public servant expects all the rights of a private citizen, with no consideration given to his political responsibility to protect the reputation of public office. But private citizens are expected to behave according to the norms governing public servants – on pain of being called hypocrites.
Such a reversal of the aims of laws and norms shows quite clearly what is happening before our eyes. Citizens are being burdened with the duties and indignities of servants. Politicians and public officials are assuming the rights of masters. By accident or design, ‘liberalism’ is serving to legitimise an illiberal order.