On February 7, 2012, in ‘Smash Communications Limited vs. Broadcasting Authority et’, decided by the Civil Court, First Hall, the court concluded that the present system established in the Broadcasting Act regulating the imposition of administrative sanctions by the Broadcasting Authority was in breach of the principle of natural justice nemo iudex in causa propria - no person may be a judge in his/her own cause.
This decision was appealed by the defendants (the Broadcasting Authority and its chief executive) and, on June 24, 2016, the Court of Appeal delivered its judgment. I had written on the judgment of the court of first instance in the Times of Malta (February 22, 2012; ‘Wounded not defeated’).
When the judgment of the court of first instance was delivered there was a euphoria of jubilation amongst broadcasters who jumped on the bandwagon of those who saw the court’s pronouncement as the death knell to the regulatory supervisory coercive powers of the Broadcasting Authority. In my article I cautioned against premature conclusions.
The June 2016 Court of Appeal judgment has brought to naught broadcasters’ aspirations for unregulated airwaves, so much so that none have, in deference to the principle of impartiality and professional journalistic reporting, chose to consider this judgement as newsworthy to report it in their main news bulletins. Self-censorship at its best. Freedom of the broadcasting media at its worst!
The defendants pleaded that they acted in terms of law - the Broadcasting Act. The appellate court held that according to section 469A(1)(a) of the Code of Organisation and Civil Procedure (which governs judicial review of administrative action), the Civil Court, First Hall, in its ordinary jurisdiction can annul an administrative act if the latter violates the Constitution.
However, the competence which the Civil Court enjoys is limited to the administrative act, not to the law under which that act is made.
The June 2016 Court of Appeal judgment has brought to naught broadcasters’ aspirations for unregulated airwaves
Thus, if the administrative act is made in conformity with the law (as the defendants claimed in these proceedings) and the law does not allow discretion as to how that administrative act has to be exercised, then the Civil Court cannot conclude that the law in terms of which that administrative act has been made is without effect once such power is conferred upon that court not when it acts in its ordinary jurisdiction - as happened in the case under review - but when it acts in its extraordinary (that is, constitutional) jurisdiction.
This does not imply that when the law allows the exercise of a discretion and the public authority exercises it in such a way as to breach the Constitution, that act cannot be annulled in terms of section 469A(1)(a) of the said code. This is because a discretion allowed by law may still be exercised in an unconstitutional fashion.
This implies that if the law does not allow any form of choice to the public authority as to how it has to implement the law, it is only the Civil Court, sitting in its constitutional jurisdiction (and, on appeal, the Constitutional Court), which can annul that administrative act declaring the law under which that action was performed as being without effect.
The Court of Appeal further held that the Civil Court, First Hall, has constitutional competence in terms of the Constitution (in addition to its ordinary competence). However, in the instant case, the Civil Court had failed to exercise such extraordinary competence. Further, the plaintiffs, on their part, had not filed their proceedings before the Civil Court sitting in its constitutional competence.
The Court of Appeal then proceeded to examine whether the defendants could have acted differently, that is, whether the charge brought against Smash Communications Limited could have been issued by an organ of the Broadcasting Authority (its chief executive officer) so that the Authority could determine the administrative proceedings.
Section 41 of the Broadcasting Act states that it is the Authority which issues the charge and which decides it. There was no other alternative contemplated in the law apart from the Broadcasting Authority or one of its organs to issue the administrative charge and for the Authority to decide the charge following the observance of the guarantees of a fair and public trial.
According to law, the administrative charge could not have been issued by another body which does not form part of the Authority. Therefore the Civil Court in its ordinary jurisdiction misapplied the law.
The Court of Appeal concluded by confirming the judgment of the court of first instance where the latter declared that the chief executive of the Broadcasting Authority was an officer of that Authority but revoked the remaining part of the judgment where the court of first instance found against the defendants.
This judgment has left undecided the merits of the case, that is, whether the Broadcasting Authority is in breach of natural justice when it issues and determines administrative offences.
Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.