Chief Justice abstains in constitutional appeal

Chief Justice Vincent De Gaetano yesterday abstained from hearing and deciding upon a constitutional appeal filed by The Times from a judgment of the First Hall of the Civil Court.

The appeal was filed by former editor Victor Aquilina, Austin Bencini and journalist Sharon Spiteri against the Attorney General and lawyer Tonio Azzopardi.

The Constitutional Court was composed of Chief Justice De Gaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph Filletti.

The Times had filed a constitutional application before the First Hall of the Civil Court claiming that its fundamental human right to freedom of expression had been violated by two judgments delivered by the First Hall of the Civil Court and by the Court of Appeal in the libel suit filed against it by Dr Azzopardi.

The case goes back to June 21, 1995, when The Times published a report entitled Lawyer Found In Contempt Of Court with reference to Dr Azzopardi. On that same day, Dr Azzopardi had protested against the report and had insisted upon a correction. On June 22, 1995, The Times had published a correction entitled Lawyer Not Found Guilty In Contempt Of Court. Dr Azzopardi filed libel proceedings against Mr Aquilina, Ms Spiteri and Dr Bencini.

In November 1999, the First Hall of the Civil Court had found in favour of Dr Azzopardi and had ordered The Times to pay Dr Azzopardi Lm300 in libel damages.

Mr Aquilina, Ms Spiteri and Dr Bencini then appealed to the Court of Appeal which had, on June 27, 2003, confirmed the first court's judgment.

The Times subsequently filed its constitutional application which was also dismissed by the First Hall of the Civil Court.

On appeal, The Times argued that the first court had been incorrect when it had accepted that journalistic reporting was to be of an absolute standard without taking into consideration the facts of the case.

According to The Times, the report published on June 21, 1995, was in good faith and had faithfully reported facts that had occurred in the course of criminal proceedings. Such facts had been corroborated by the prosecuting officer in that case.

The Times further pointed out that the written record of the court proceedings did not state that Dr Azzopardi had been found guilty of contempt of court.

On June 22, 1995, The Times had published the content of the written record of the court proceedings. Thus, The Times had published, over two days, exactly what happened in the courtroom.

In conclusion, Mr Aquilina, Ms Spiteri and Dr Bencini requested the Constitutional Court to overturn the judgment of the First Hall of the Civil Court in its constitutional application and instead to find that their fundamental human right of freedom of expression had been violated by the judgments delivered in Dr Azzopardi's libel suit.

In his reply, the Attorney General pleaded that the judgment of the First Hall of the Civil Court delivered last May was correct and merited confirmation. It was not sufficient for a journalist to report what he thought had occurred if the journalist did not limit himself to a simple description of the facts. The fact that the journalist and the prosecutor had formed the same impression was not sufficient.

In any event, a person was either found to be in contempt of court or was not so found. It did not result that the Magistrates' Court had found Dr Azzopardi to be in contempt of court. It was clear, according to the Attorney General, that the journalist had been in error when she had arrived at a conclusion without verifying the facts

It was true that The Times had carried a clarification to Ms Spiteri's report on the following day, but this was insufficient to remedy the big mistake that had previously been committed. The two reports, taken in conjunction, were not a simple report of the facts.

The Attorney General added that Ms Spiteri had reported upon a technical fact that was the finding of contempt of court. This fact was of a delicate nature as an incorrect report could cause damage to the person mentioned. In such cases a journalist ought to check the veracity of such facts before publishing a report.

At the start of yesterday's sitting before the Constitutional Court, the Chief Justice said he had to abstain as he had participated in the judgment of the Court of Appeal delivered in June 2003.

The case was put off to July 11 for another judge to replace the Chief Justice and sit with the other two judges.

Lawyer Stefan Frendo appeared for The Times. Lawyer Hubert Theuma acted for the Attorney General.