Daphne Caruana Galizia’s heirs breach of rights case claiming they could not defend themselves in the libel filed against them by Joseph and Michelle Muscat, had only been filed after their plan to produce “a particular witness” went awry, the lawyers to the former Prime Minister’s argued in court. 

The heirs of the assassinated journalist filed constitutional proceedings in June arguing that since they had no access to her closely guarded sources, it was practically impossible for them to defend her story alleging that secret offshore company Egrant belonged to Michelle Muscat. 

That story, published on her Running Commentary, had prompted a libel suit by the Muscats just months before the journalist was killed in October 2017. 

While the libel proceedings continue, her heirs stepping into the suit as respondents in her stead, they are now claiming that without knowing who the journalist’s sources were and with those sources being closely protected, they could never prove that what Caruana Galizia had written was true. 

In her reply to Muscat’s libel, Caruana Galizia herself had stated that her story “amounted to fair comment based on facts that were substantially true”.

Now, her heirs are claiming that the right to freedom of expression of the assassinated journalist, her sources, as well as her heirs, would be breached if the libel proceedings continued. 

But when the constitutional case resumed on Wednesday, both the State Advocate’s as well as Muscat’s lawyers, rebutted those claims. 

Lawyers Pawlu Lia and Charlon Gouder, assisting the Muscat couple, raised a number of preliminary pleas, questioning in the first place whether the applicants could represent a dead person as a party in judicial proceedings. 

Constitutional case filed 'in an untimely manner'

Moreover, they argued that the constitutional case had been filed in an untimely manner since the applicants had other ordinary legal remedies. 

In fact, they had stepped into the libel suit after the journalist’s murder, had produced evidence, and raised a number of pleas.

“But then they meant to produce a particular witness who, for some reason, they had some difficulty summoning and that was when they decided that they would ‘definitely” lose the case,” said Lia.

The applicants were claiming a breach of their right to a fair hearing but the libel was being heard by an independent and “presumably” impartial court, with all the necessary safeguards in place. 

If that libel were to be lost by the Muscats, then “what would be the need of this constitutional case”, went on Lia. 

“What would be the prejudice in that case? This constitutional case would prove futile.” 

Moreover, the applicants had a further ordinary remedy, namely the chance to appeal if the libel suit did not go in their favour. 

State Advocate lawyers Maurizio Cordina and Miguel Degabriele were in agreement, making reference to similar preliminary pleas they had outlined in their written reply to the application by the Caruana Galizias. 

The applicants’ lawyer, Therese Comodini Cachia, countered that the libel suit was instituted against a journalist. 

'Her sources died with her'

That meant “that all sources died with her” and even if she were still alive, Caruana Galizia would have protected those sources having previously made a conscious decision to face the possible reality of a defamation suit. 

In fact, Daphne was “diligent enough” to file her reply to the libel claims, doing so merely three or four days before she was killed. 

The heirs, once accepting her inheritance, stepped into her shoes. 

Now that the heirs cannot produce evidence because they do not know who the journalist’s sources were, the issue is not “whether they win or lose the libel, whether the Muscats are right or wrong”.

As for Lia’s comment that the heirs meant to produce a “particular source”, how could they assume who that source was. 

“Can we summon Tom, Dick or Harry asking whether any of them are that source,” asked Comodini Cachia. 

“Daphne said everything about this matter. At the [Egrant] inquiry before then-magistrate Aaron Bugeja, she testified three times or so and was bound by law and under oath to tell the truth,” countered Lia. 

“Her source was Maria Efimova who also testified.”

The inquiring magistrate had reached his decision based on what both Caruana Galizia and Efimova had testified. 

Then, when the journalist’s heirs meant to summon Efimova as witness in the libel suit filed by the former prime minister, she “either refused or absconded”.

“Hence their difficulty,” went on Muscat’s lawyer, drawing a parallel to a situation where a person stepped into the shoes of another not knowing that his predecessor had pending debts. 

“Would he be exempted from those debts,” argued the lawyer, suggesting that the court could order a copy of that Egrant inquiry to be produced in evidence in these constitutional proceedings. 

“It was published by the Attorney General and by the media too,” added Lia. 

“That inquiry cost millions. Daphne had no millions to spend on investigations and relied solely on the rules of responsible journalism,” countered Comodini Cachia, stressing that responsible journalism did not rely on one source. 

“So even if the source is disclosed by someone or if he discloses himself, that is one source.” 

Court wants clear picture of 'whole integrated process'

After hearing submissions, the First Hall, Civil Court in its constitutional jurisdiction, presided over by Madam Justice Miriam Hayman, ordered a full copy of the records of Muscat’s libel suit to be exhibited in these proceedings, including any exhibits or attachments in whatever format. 

However, the court stated clearly that those documents were to be kept inside the judge’s chambers.

Only after obtaining a clear picture of the whole integrated court process would the court then decide upon the way forward in this breach of rights case, where the respondents were requesting the court to decide upon the preliminary pleas before assessing the merits of the claims. 

The case continues in December. 

Lawyers Joseph Zammit Maempel, Therese Comodini Cachia and Peter Caruana Galizia are representing the applicants. Lawyers Maurizio Cordina and Miguel Degabriele are representing the State Advocate.  Lawyers Pawlu Lia and Charlon Gouder are representing the Muscats.