Judge throws out ex-PM's pleas in libel case

The Court of Appeal yesterday upheld an appeal filed by Labour MP Chris Cardona and ordered the records of a libel suit against a former prime minister to be remitted to the Magistrates' Court.

Mr Justice Philip Sciberras, presiding over the appellate court, declared that in April 2003 Dr Cardona had filed a writ in the Magistrates' Court asking it to declare that a declaration made by President Eddie Fenech Adami, then Prime Minister, in the course of a political debate was libellous in his regard.

The court was also asked to order Dr Fenech Adami to pay libel damages.

Dr Fenech Adami pleaded that the allegations made by him were not libellous and constituted fair comment. The Magistrates' Court had upheld this plea despite the fact that in February of this year Dr Fenech Adami had declared he would not testify in the case.

The first court heard that on April 5, 2003, five days before the general election, a political debate had been held between the Prime Minister and Opposition Leader Alfred Sant.

In this debate Dr Fenech Adami had said there were members of the Malta Labour Party who were not acting in accordance with the MLP's declared policy of the time. He mentioned Dr Cardona as being one such member adding that Dr Cardona had publicly declared he was in favour of Malta's EU accession.

In its judgment, the Magistrates' Court noted that the limits of acceptable criticism were wider in the case of a politician than in the case of a private individual. The court then proceeded to evaluate Dr Fenech Adami's declarations in order to see whether they were acceptable.

The debate took place at a time when the EU was a prominent item on the agenda of all political parties. The Nationalist Party was in favour of Malta's EU accession and the MLP, of which Dr Cardona was an active member, was against.

The court declared it found nothing objectionable in Dr Fenech Adami's statement for it was not impossible for a political party member to be contrary to his party's policies. This did not mean that such member would not abide by these policies.

The court therefore found that Dr Fenech Adami's comments did not exceed the limits of tolerance and dismissed Dr Cardona's writ.

Dr Cardona appealed claiming that the first court had been incorrect when it had deemed the declaration made by Dr Fenech Adami to be fair comment. He pleaded that once Dr Fenech Adami had not produced any evidence the first court ought to have upheld his writ.

Mr Justice Sciberras declared that no court was bound to deliver judgment in favour of a plaintiff if defendant did not produce any evidence in support of his pleas. In such cases the court was in duty bound to see whether plaintiff's request was justified.

The appellate court declared that the first court had acted in accordance with case law when it had ruled that persons in public office were open to the most searching criticism. However, this did not mean that there was full liberty for any individual to say whatever he wanted about a person in public life. The fact that a politician could not be thin skinned did not mean that he could be libelled with impunity.

What was important was that there was a balance between the right to freedom to criticise and to state one's opinion and the right of every individual to his honour and good name.

When examining the declarations made by Dr Fenech Adami, the court concluded that these were not fair in relation to Dr Cardona.

The ordinary listener would conclude, after hearing Dr Fenech Adami, that Dr Cardona was contrary to the MLP's declared policy on EU membership. Once this was not the case, as Dr Cardona had proven, such a declaration was libellous in plaintiff's regard and portrayed him in a bad light with MLP supporters and the public in general.

Mr Justice Sciberras added that in order for the defence of "fair comment" to be successful, defendant had to have commented on facts that were substantially true. If the facts were not true or were incomplete, then the comment could not be considered to be fair.

The court also dismissed Dr Fenech Adami's submission that the controversy had been overtaken by events, as there was now agreement between the political parties on Malta's position in Europe. This fact might serve as an attenuating circumstance when it came to liquidating the damages to be awarded to plaintiff.

The court concluded its judgment by upholding Dr Cardona's appeal. The case was remitted to the Magistrates' Court for a ruling on the quantum of damages.