PN human rights breached, compensation award revoked

The Constitutional Court has partially overturned a judgment of the First Hall of the Civil Court whereby the Nationalist Party and the commercial company it set up to run Net Television were awarded Lm20,000 compensation for an attempt by the authorities to stop test transmissions from Gharghur in 1998. The court however confirmed that part of the judgment of the First Court which had found that the fundamental human rights of the PN and of Multicomm Ltd had been violated.

The First Court had found that a violation of the PN's and Multicomm's right to protection of property, peaceful enjoyment of property and freedom of expression had occurred as a result of actions on the part of the director of wireless telegraphy and the police commissioner as a consequence of political discrimination.

The PN and Multicomm had filed a constitutional application in the Civil Court in June 1998, claiming that the director of wireless telegraphy and the police commissioner had tried to confiscate their transmitting apparatus at the master antenna building in Gharghur on May 29, 1998.

The equipment was in a room leased to the PN by the Broadcasting Authority after they had obtained the necessary permits.

The court heard that the director of wireless telegraphy at the time, Nicholas Scicluna, had gone to the Gharghur building to seize the apparatus, obtaining the assistance of high-ranking police officials and threatening to break into the building to seize the equipment.

The PN had protested against the move on the grounds that the party and the company were authorised by the BA to effect television transmission from the antenna and had obtained an injunction to stop them from seizing the transmission apparatus.

The PN and Multicomm had then filed a constitutional application, claiming a violation of their right to freedom of property, freedom of expression and freedom from discrimination.

In its judgment delivered in July, 2002, the First Court had ruled that the case had to be decided in the light of the circumstances of the time when the incident occurred.

In 1998, the PN had announced it was going to use its television station to broadcast its political message as its political adversary had been doing for some time, and had set up a commercial company, Multicomm, to run its television station.

The root of the PN's complaint was the political factor. The PN's political opinion differed from that of the party in government at the time and applicants thus alleged that they had sustained violations of their fundamental human rights.

But respondents declared they had acted in accordance with the law and had fulfilled the instructions given to them by Joe Mizzi, then minister (without portfolio) within the office of the prime minister and responsible for broadcasting.

The authorities also claimed that applicants were not in possession of the necessary licence issued by the wireless telegraphy department to effect television broadcasting.

Evidence showed that the BA had authorised the PN and Multicomm to carry out test transmissions for television from the master antenna at Gharghur.

Certain conditions were imposed by the BA and were accepted by applicants who had imported the necessary machinery to make the television transmissions.

The machinery, including a transmitter, was released from customs after this was authorised by the wireless telegraphy department.

An agreement was reached with the BA to the effect that the BA itself would carry out test transmissions using applicants' equipment.

The PN and Multicomm placed their transmitter in a room allocated to them by the BA at the master antenna building.

But respondents tried to stop the work on the grounds that the PN and Multicomm were not in possession of a wireless telegraphy licence.

The first court noted that the Broadcasting Act provided that the only licence required for broadcasting was that issued by the BA. No other licence was required.

The wireless telegraphy director's allegations were therefore clearly unfounded, as no licence was required from the wireless telegraphy department.

The court added that the director of wireless telegraphy had insisted on seizing the equipment on the grounds that he had to obey the orders issued by the minister but no evidence was produced to show that the minister had issued such an order.

In terms of the Interpretation Act, a ministerial order had to be put in writing and if this was not observed, then the order would not be legally binding.

The court added that it did not consider the ministerial order, whether or not it was in writing, to be the direct merits of these procedures.

This was a factor that could be taken into consideration when examining applicants' allegation that they had sustained discrimination on political grounds.

The First Court ruled that the wireless telegraphy department had no right to take any action against the PN and Multicomm on the basis that they were transmitting illegally.

Only the BA was entitled to take such action and the BA had not done so as applicants were acting in accordance with the agreement reached between the parties.

The decision of the director of wireless telegraphy to take the initiative and to forcibly seize the equipment belonging to applicants was therefore clearly illegal and abusive.

The court added that the decision was taken to deprive applicants of the broadcasting facilities enjoyed by the other political party.

There was no doubt that respondents' actions could not be justified, and that they were based on discrimination against the PN and Multicomm on political grounds.

The court also found that applicants' right to freedom of opinion and expression had been violated as a direct result of respondents' actions.

The court concluded by upholding the claims made by the PN and Multicomm, and by awarding them compensation.

This compensation, said the court, was not to be considered as damages for the financial losses sustained by applicants, but as a remedy to their constitutional complaint.

The court confirmed the issue of the warrant of prohibitory injunction issued in 1998, and prohibited respondents from removing the transmitting equipment at the master antenna building in Gharghur.

The court also ordered respondents to grant applicants all facilities given to others so that they could freely broadcast from Gharghur.

In its judgment the Constitutional Court revoked that part of the judgment of the First Hall of the Civil Court whereby the issue of the warrant of prohibitory injunction was confirmed on the grounds that such a declaration was superfluous once the court had found that applicants' fundamental human rights were violated.

The Constitutional Court also revoked the award of compensation to applicants. Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti declared in their judgment that there was no scope for the award of Lm20,000 in compensation in this particular case.

Respondents had submitted in their appeal to the Constitutional Court, that the expenses that the PN had allegedly incurred were not in any way connected to the incidents of May 29, 1998. They had further submitted that the judgment of the First Court had failed to give importance to the fact that the transmissions to be made by the PN and Multicomm were in effect test transmissions, aimed solely at establishing whether the master antenna could cope with more broadcasts.

There was no evidence in the records of the proceedings to show that any expenses incurred by the PN and Multicomm were due, whether directly or indirectly, to the May 29, 1998 incident. The Constitutional Court added that it could not understand why the PN and Multicomm had not carried out the test transmissions once the warrant of prohibitory injunction against respondents had been issued. Respondents could not therefore be held liable for the expenses incurred by the PN and Multicomm as a result of the test transmissions not being carried out. There was therefore no necessity for a pecuniary remedy in this case.

In conclusion the Constitutional Court confirmed that part of the judgment of the First Hall of the Civil Court which had found that the fundamental human rights of the PN and of Multicomm had been violated.