PM's appeal on Sant comments dismissed

An appeal court yesterday dismissed an appeal filed by Prime Minister Eddie Fenech Adami from a decision of the Civil Court over comments made by Opposition Leader Alfred Sant on a radio programme in 1993 regarding the prime minister's failure to declare donations in his income tax return.

Chief Justice Vincent De Gaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti yesterday heard the appeal filed by Dr Fenech Adami following a Civil Court judgment finding that Dr Sant's claims constituted fair comment.

Dr Fenech Adami sued Dr Sant for libel over a declaration made by Dr Sant in the course of a transmission on Radio One Live on February 26, 1993.

According to Dr Fenech Adami, Dr Sant had stated that he had failed to declare all his income in his income tax return. He claimed this was a false and defamatory allegation and he requested the Civil Court to order Dr Sant to pay him libel damages.

Dr Sant pleaded that the declaration he had made was not a "publication" or a "broadcast" in terms of the Press Act.

He further pleaded that the declaration constituted fair comment on a matter of public interest and was acceptable in a democratic society.

In its decision of May 6, 1993 the Civil Court had found that the declaration made by Dr Sant on radio was subject to the controls of the Press Act.

The court had also concluded that the words to which plaintiff had objected constituted fair comment legally permissible in a democratic society.

But the prime minister appealed and called on the Court of Appeal to overturn that part of the judgment which had found the declaration to be a fair comment.

The appeal court yesterday noted that Dr Fenech Adami was not alleging that it was not true that he had failed to declare, for tax purposes, the donations he had received some time previously.

What he was complaining about was that it was not true that he was bound to declare these donations.

Dr Fenech Adami stated that he had, on numerous occasions, published the fact that he had received a number of donations in the period when he and other MPs were declared to have forfeited their parliamentary seats.

These donations had not been included by Dr Fenech Adami in his income tax return.

The Court of Appeal noted that the Civil Court had not entered into the merits of whether the donations received by Dr Fenech Adami ought to have been declared for tax purposes.

This was a correct interpretation, said the Court of Appeal.

It therefore followed that when Dr Sant had claimed that Dr Fenech Adami was obliged to declare these donations, Dr Sant was merely expressing an opinion or passing a comment on a fact (namely the lack of declaration) that was true.

The situation would have been different if Dr Sant had expressed, as an opinion, a comment that would not be agreed with by the reasonable listener.

On the other hand, the Court of Appeal said that this did not mean that Dr Sant had been correct in his opinion that the donations ought to have been included in the prime minister's income tax return.

It resulted that Dr Fenech Adami had repeatedly made public the fact that he had not declared these donations to the tax authorities, and the Commissioner of Inland Revenue had not taken any action against him.

It resulted that the only time the commissioner had taken action against Dr Fenech Adami was when the latter had forgotten to declare income of Lm4 deriving from a television appearance.

In the course of his appeal Dr Fenech Adami objected to the words used by Dr Sant, including the word "tangenti".

Dr Fenech Adami said that this word, with its negative connotations of corruption, gave a particular slant to Dr Sant's declaration on the radio.

However, this complaint was dismissed by the Court of Appeal which found that the Civil Court had, correctly, not examined this complaint as it was not part of the prime minister's original complaint when he had filed his libel suit.

The Court of Appeal concluded that it had no reason to overturn the conclusions reached by the Civil Court.

Dr Fenech Adami might have every reason to be hurt by Dr Sant's expressed comment or opinion, particularly as Dr Fenech Adami had been proven to be punctilious in completing his income tax returns and in paying all the tax due.

However, the court could not conclude that Dr Sant's declaration had surpassed the limits of fair criticism in a democratic society.

Dr Joseph Zammit Maempel was counsel to Dr Fenech Adami while Dr Pawlu Lia was counsel to Dr Sant.