Mr Justice Philip Sciberras yesterday became the second judge to abstain from hearing and deciding upon a constitutional appeal filed by The Times from a judgment of the First Hall of the Civil Court.
Chief Justice Vincent Degaetano had abstained on June 15 on the basis that he had participated in the judgment of the Court of Appeal delivered in June 2003.
The appeal was filed by former editor Victor Aquilina, Austin Bencini and journalist Sharon Spiteri against the Attorney General and lawyer Tonio Azzopardi.
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 a 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 ordered The Times to pay him 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.
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.
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 to a conclusion without verifying the facts.
At the start of yesterday's sitting before the Constitutional Court - composed of Mr Justice Joseph D. Camilleri, Mr Justice Joseph A. Filletti and Mr Justice Sciberras, Dr Azzopardi challenged Mr Justice Sciberras to abstain on grounds that last October he had delivered a judgment on the same facts which formed the merits of this case. The judgment, delivered in the names Dr Tonio Azzopardi vs Karl Stagno Navarra, had not been appealed. The case consisted of a libel suit involving the newspaper In-Nazzjon involving the same facts that led to the report carried in The Times.
Mr Justice Sciberras pointed out that the facts were the same but the parties to the suit were different. However, the judge added that he was obliged to ensure not only the application of the law but also that the parties felt they had obtained justice. Justice had not only to be done but had to be seen to be done.
Lawyer Stefan Frendo, acting for The Times, objected to the challenge, saying the judgment delivered last October involving In-Nazzjon was totally irrelevant to the current proceedings and had no impact on the merits of this case.
Furthermore, Dr Azzopardi was not a party to the current proceedings but had intervened in the case filed by The Times against the state. Dr Azzopardi could not object to the judge.
After a short recess, the Constitutional Court ruled that Mr Justice Sciberras was to abstain from hearing the case.
The case continues on October 17 when another judge will be appointed to hear the case instead of Mr Justice Sciberras.
Lawyer Hubert Theuma acted for the Attorney General.