I did not like the recent rift between the journalists and the Institute of Maltese Journalists on one side and the Chamber of Advocates and (indirectly) the Judiciary on the other. No, I did not like it one bit.
On examining closely what appeared in the press, I came to the conclusion that, at the bottom of it all, is a misunderstanding and I, therefore, resolved to write this short article with the hope of settling the bristling feathers.
On August 22, 2010, The Sunday Times of Malta published an article stating that the group committee chairman of the Malta Union of Midwives and Nurses (MUMN) at Mater Dei Hospital had, with the help of another, swindled money from patients. Subsequently, four MUMN officials – Paul Pace, Colin Galea, George Saliba and Maria Cutajar – filed a complaint alleging defamation against Steve Mallia as editor and Ariadne Massa, the writer of the article that appeared in The Sunday Times of Malta.
It is not clear whether the defendants - the accused - felt that they were about to suffer a violation of a fundamental right. If so, then it is at that stage of the proceedings that they should have raised the question in the Magistrates’ Court and that court would have had to decide whether to refer the question to the First Hall Civil Court and, therefore, suspend the proceedings and wait for the determination of that plea, or, alternatively, the First Court could consider the question to be merely frivolous and/or vexatious and continue with the hearing.
However, the defendants chose not to raise the question.
The Magistrates’ Court, on September 17, 2012, found the defendants guilty. They appealed the judgment. The appeal was partially upheld on January 14, 2015 but, once again, the defendants did not raise the question of an alleged violation of their fundamental right.
That last judgment of the Court of Appeal (Inferior Jurisdiction) became final and conclusive.
The defendants now, on May 13, 2015, filed an application alleging a violation of their fundamental right of liberty of expression, which they suffered through the judgment of January 14, 2015.
Constitutional cases are directed against the State and bind the State
This action was directed against the government of Malta as it was deemed to be the perpetrator of the violation allegedly suffered.
The old complainants - that is, Pace, Galea, Saliba, and Cutajar – were not to answer the allegation of violation of the fundamental right.
Indeed, even if, or as lawyers say, dato ma non concesso, the plaintiffs are now successful in their action, all they can achieve is, at the most, a revision of the law and/or the damages from the government in compensation for what they have suffered through the violation.
The successful judgment cannot have any impact or influence on what the plaintiffs in the defamation action had obtained as a result of the judgment of January 14, 2015.
In our legal order, a constitutional question can only have a bearing on ongoing proceedings only if the above-mentioned mechanism is used or, in exceptional circumstances if an application is made before judgment is delivered in the ongoing proceedings.
It is clear that any other alternative approach is completely unjustified: grinding all procedures to an unacceptable halt in order to see what a constitutional court - or even the European Court of Human Rights - have to say on the matter.
The constitutional cases are directed against the State and bind the State. The private parties in those cases, unless they are directly involved in the violation, are not concerned with what is the outcome of those cases. To hold otherwise makes no judicial sense.
In my opinion, this clarification should put to rest the uncomplimentary language that has been used by both sides in the unwarranted rift.
Giuseppe Mifsud Bonnici is a former chief justice.