The Court must decide on all pleas raised

The Court will decide on all claims and pleas the parties of a case have raised. This was held in an action instituted by Lovin Malta Limited and Christian Peregrin vs the State Advocate. One Productions Limited, the Labour Party-owned media company, and Media.Link Communications Company Limited, the Nationalist Party-owned media firm, intervened in this case. The partial judgment was delivered on 18 March 2024 by Mr Justice Ian Spiteri Bailey.

The partial judgment followed an application filed by One Productions wherein it asked the court to declare the action in itself will violate their fundamental human rights as protected in the Constitution and in the European Convention. Therefore, it asked for a remedy at law.

One Productions are claiming that the merits of the case deal with whether Article 13(1) of the Broadcasting Act is in violation of Article 119 of the Constitution.

One Productions further explained that it is licensed to operate a television and radio station and the Labour Party is the major shareholder. The scope of this is to have a voice on the broadcasting media. It further explained that it broadcasts an array of different programmes, including the news and current affair programmes and tries to give an objective view of the facts and voices, as well as the view of the Labour Party. It complained that historically, the Labour Party was always disadvantaged and discriminated against by the independent media and the only means for the Labour Party to assure itself the possibility to drive its message home, is to have its own media. The case at hand will affect the existence of its stations and the freedom of expression as protected by the Constitution and the European Convention, the company argued.

One Productions felt that Lovin Malta’s application was discriminatory against it. The law was penned when broadcasting was controlled and restricted.

Today, technology has developed in such a way that it allows anyone to voice its political messages. Lovin Malta, in fact, broadcasts the news and political messages without any restrictions, One Productions argued, adding the application is aimed at stopping it from broadcasting its political beliefs. This would be a breach of its fundamental human rights, the party media company stated.

One Productions challenged the fact that the case is being heard by the First Hall of the Civil Court, since an application to refer the issue of the constitutional validity is already before the First Hall of the Civil Court.

Lovin Malta disagreed with One Productions, in that it was not seeking to stop One Productions from broadcasting but was challenging the validity of the proviso of Article 13 of the Broadcasting Act, as in violation of Article 119 of the Constitution.

One Productions is advancing a constitutional action in the action popolaris. Lovin Malta argued that the action cannot dilute One Production’s rights, because it was protected by Article 116 of the Constitution, which allows anyone to attack any piece of legislation. One Productions is arguing that Lovin Malta’s action is in itself a breach of its fundamental human rights. Lovin Malta argued that One Productions can produce evidence that will back their legal position.

The State Advocate argued that it understood the position taken by One Productions, as an owner of a broadcasting station. It was further argued that the Court is bound to take cognizance of all pleas raised by the Defendant and of those parties which intervened in the case.  As such the Court cannot ignore One Production’s constitutional complaint and must decide this.

The Court referred to what One Productions is requesting: According to One Productions Article 46 of the Constitution allows any party to an action which is not a Constitutional Court of the First Hall of the Civil Court to refer a constitutional issue to another court. If the issue raised is not frivolous and vexatious, then the Court must deliver a judgment on that constitutional issue raised. The other parties to this action are against the procedure One Productions adopted, since it cannot be done.

Article 46(3) of the Constitution reads:

“(3) If  in  any  proceedings  in  any  court  other  than  the  Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the said articles 33 to 45 (inclusive), that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this sub-article and, subject to the provisions of sub-article (4) of this article, the court in which the question arose shall dispose of the question in accordance with that decision.”

The Court held that the article clearly indicates that the procedure suggested may be used only if the action is not before the Constitutional Court and the First Hall of the Civil Courts. This is not the case in this case. As such One Production’s application cannot be entertained. Furthermore, it is not permitted for a party which intervened in a constitutional case to file a constitutional complaint in the action which is examining a constitutional issue. Regulation 2 of the Court Practice and Procedure and Good Order Rules:

“2. Proceedings   before   the   Civil   Court,   First   Hall,   under article 46(1) of the Constitution of Malta and under article 4(1) of the European Convention Act and proceedings before  the Constitutional Court  in  cases  referred  to  in  article  95(2)  of  the Constitution of Malta shall be instituted by application.”

But this refers to application which institutes the action.

The Court referred to Article 218 of the Code of Organisation and Civil Procedure stipulates that the Court must decide on all claim and pleas. This was sustained in Angelo Spiteri vs Police Commissioner, decided by the Constitutional Court on 16 April 1999.

The Court then moved to reject One Production’s application but assured One Productions that it will deal with the issues raised in its final judgment.