The Broadcasting Authority's chair told court on Monday that the remedy it had given PN, over a complaint about PBS' failure to air events linked to the vote of a motion about the Sofia public inquiry, was to set a precedent for the future.
On July 12, Labour MPs voted against a motion tabled by the Opposition calling for a public inquiry into the collapse at the Corradino construction site that killed Jean Paul Sofia.
The state broadcaster failed to air footage showing the events that unfolded inside parliament as well as outside, immediately after that vote.
The PN had filed a complaint before the BA which, days later, ruled in favour of the party but failed to issue any order to PBS by way of a remedy. The PN therefore took its grievances before the constitutional court claiming that its fundamental rights were breached.
The First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Lawrence Mintoff, last week upheld the party’s request for the case to be heard with urgency and a sitting was scheduled for Monday.
Taking the witness stand, BA chair Frank Farrugia said that there had been "some misinterpretation".
"The BA did in fact give a remedy. Normally when the BA issues a decision, a practice is set down for the future,” testified Farrugia, giving an overview of how the PN’s complaint had proceeded to the decision stage.
The party had registered its complaint with PBS three days after that parliamentary sitting, keeping the Authority in copy.
The following Monday, the chairman contacted both the Nationalist Party and PBS suggesting that the complaint could be heard along with three other complaints filed by the party on July 17.
While that session was in progress before the BA board, the Prime Minister gave a press conference, announcing a u-turn on the government’s position over the Sofia public inquiry.
The next day, the BA received another complaint from the Nationalist Party over PBS’s coverage of that u-turn by the Prime Minister but not by Opposition Leader, Bernard Grech.
The authority delivered its decision on the Sofia parliamentary vote nine days after its hearing, namely on July 26.
Pressed to explain why the authority had not ordered PBS to report its decision and air the relative footage, Farrugia observed: “Are we to show viewers something that happened days before?”
Given the lapse of time, airing that footage would confuse the public.
'PBS was let off with a slap on the hand'
“So what was the remedy granted to the PN,” asked the party’s lawyer, Paul Borg Olivier, pointing out that PBS was let off with a slap on the hand.
“The remedy was to tell PBS that in the future they were to report on similar matters,” insisted Farrugia.
Asked directly by the court to find the reference to “future” and “similar matters” in the board’s decision, the chair checked the document and after a brief pause, replied that there were none.
“Couldn’t you at least have granted a minimum remedy ordering PBS to report the board’s decision,” persisted Borg Olivier.
On July 17, the Authority had heard four complaints by the Nationalist Party, two of which went in their favour and two against.
In none of them was there an order for the outcome to be reported.
Decisions of the BA are uploaded on its website and that publication is ordered by law. But ordering its decision to be reported is not mandatory.
“Sometimes it’s granted, sometimes not,” said Farrugia.
“Why wasn’t it granted in this case,” asked Mr Justice Mintoff.
“I cannot remember why there wasn’t an order for PBS to report the decision,” replied the witness.
“That is no reply,” observed the judge.
In actual fact, there were "few" cases where the authority ordered its decision to be reported, clarified the witness, as PBS lawyer Mark Vassallo pointed out that such a remedy was not mandatory in terms of the law.
Earlier, one of the BA’s board members - lawyer Peter Fenech - also confirmed that this was not the first time that a complaint was upheld and no remedy granted.
When hearing a complaint, the five board members discuss it and take their vote. In case of a tie, the ball lands in the chair’s court.
In such cases, the chair would normally request more time to consider the case and eventually make his decision known to the other members of the board.
'Inner workings of the board are reserved matters'
Further questions about how the decision was taken in this case could not be answered since the inner workings of the board were “reserved matters” in terms of law.
BA chief executive officer Joanna Spiteri was also summoned to testify, however, she could provide little information since, although present at hearings, she was not involved in the decision-making nor any remedy granted by the board.
As for former PBS head of news Norma Saliba, although still in that role at the time when the issue cropped up, she said she “was on leave at the time and so was not at all involved".
'PBS editorial board supports editor’s decision'
PBS editorial board chair Joe Sammut meanwhile said the board was not part of the newsroom.
With respect to the state broadcaster’s decision not to air the footage of events related to the Sofia parliamentary debate, Sammut said that the board “supported the editor’s decision”.
That decision was to be viewed in light of the news items of the day.
PBS had reported the parliamentary sitting, the Opposition’s motion, the outcome of the vote, the fact that “people had been escorted out of the strangers' gallery,” as well as the appeal by Sofia’s mother before that session to MPs to back the motion.
However, there were parliamentary regulations prohibiting filming in parliament.
“We did not want to be part of the breach of those regulations,” said Sammut when asked why footage of the scenes inside and outside Parliament after that vote were not aired by PBS.
“What about outside parliament?” asked the judge.
“As far as I know there were no PBS cameras outside. But the newsroom could better confirm that.”
And what about the decision by the BA following the Nationalist Party’s complaint?
“We accepted it. There was nothing else to do,” said Sammut, adding that PBS had reported that the PN had filed this court case.
“Nothing was done. How did you accept the [BA’s] decision? Wasn’t that decision in itself newsworthy? Didn’t a complaint upheld by a constitutional body have news value,” asked Judge Mintoff.
“The editorial board did not go into the issue of whether to publish the BA’s decision or not,” came the final reply.
The case continues.
Lawyers Paul Borg Olivier and Francis Zammit Dimech are assisting PN Secretary General Michael Piccinino.
Profs Ian Refalo and lawyer Mark Refalo are assisting the BA.
Lawyers Edward Gatt and Mark Vassallo are assisting PBS.