Daphne Caruana Galizia’s heirs are claiming that a libel suit filed by Joseph and Michelle Muscat breaches their fundamental rights, as they have no way of defending themselves in the case.

The late journalist’s relatives say that given that they have no access to her closely-guarded sources, they cannot defend her story alleging that secret offshore company Egrant belonged to Michelle Muscat.

The Muscats filed the case against Caruana Galizia just months before she was assassinated in October 2017.

Peter Caruana Galizia and his sons, Matthew, Andrew and Paul, have instituted fresh proceedings before the constitutional courts while trying to achieve what was next to impossible, namely defending Daphne Caruana Galizia’s own plea that what she had written about Joseph Muscat’s spouse was true based on information which only she had access to.

In her reply to the Muscats’ libel application, filed by the journalist just three days before her murder, Caruana Galizia had argued that the story published on her Running Commentary blog six months previously, “amounted to fair comment based on facts that were substantially true”.

On April 19, 2017, an article titled ‘Company owned by Leyla Aliyeva of Azerbaijan made ‘loan payments’ to Hearneville, Egrant and Tillgate’ was published on her blog.

The Muscats filed the case against Caruana Galizia just months before she was assassinated in October 2017.

The following day another article carried the title ‘Declarations of trust in Pilatus Bank safe: Egrant Inc shares held for Michelle Muscat’.

That same day, the former prime minister and his wife requested a magisterial inquiry to investigate the journalist’s allegations and on April 21 sued Caruana Galizia for libel over those two blog posts.

A first hearing was set for a later date, but she never made it to the hearing scheduled for October 26.

Ten days before, she was blown up in a car bomb explosion just metres away from her Bidnija home.

Her widower and sons had no option but to step into her shoes as defendants in the libel suit, which is still ongoing.

The Muscats wrapped up evidence on November 30, 2020.

That evidence included a copy of the conclusions of the Egrant inquiry conducted by then-Magistrate Aaron Bugeja, whose terms of reference were set out by Muscat’s own lawyer.

During that inquiry 477 witnesses gave testimony, while other persons involved in at least two other magisterial inquiries also testified.

Daphne Caruana Galizia was blown up in a car bomb explosion just metres away from her Bidnija home in 2017. File photo: Mark Zammit Cordina

Documents were seized from the offices of Nexia BT and the now-shuttered Pilatus Bank together with other information and formal requests were made to various countries including Panama, Belgium, United Arab Emirates, Germany and the US.

The findings of the inquiry, published by the attorney general on July 22, 2018, indicated that a document referred to by Caruana Galizia in her story bore a false signature.

The Muscats thus claimed in their libel that what Caruana Galizia had written was not true.

Following the journalist’s assassination, Muscat had testified in the libel proceedings, saying he would drop the cases if Caruana Galizia’s heirs accepted the findings of the Egrant inquiry. But the family had said they would not concede “to extortion from our public servants”. 

The ball was now in her heirs’ court to produce evidence supporting her plea that her allegedly defamatory publications were based on true facts.

The family is now arguing that the libel proceedings concerned Caruana Galizia’s profession as journalist and journalism embodied not only her personal right to freedom of expression but also her right as an individual to engage publicly in matters of public interest.

Her heirs were now being forced to answer for the exercise of the journalist’s personal rights, being expected to reply to the applicants’ claims without having access to the sources which only she knew about.

Their inability to set up a valid defence stemmed precisely from the very nature of the profession of journalists who are bound not to reveal their sources.

Protection of sources was a duty which Caruana Galizia abided by “very diligently” to such extent that she would not even share information with close family.

Protection of sources was a duty which Caruana Galizia abided by “very diligently” to such extent that she would not even share information with close family.

This meant that in order to produce the evidence necessary to prove that what Daphne wrote was based on “substantially true facts” her heirs would have to find out who her sources were, what information she had and what investigations she had carried out.

And to do so they would be violating the obligation of protecting sources, which is fundamental to safeguarding freedom of the press.

Caruana Galizia herself never got the opportunity to present that information in court and obviously for reasons which were certainly not her fault, argued the heirs in their application filed before the First Hall, Civil Court in its constitutional jurisdiction.

Now, not only were they expected to produce evidence based on information deemed ‘reliable’ at the time of publication of Daphne’s blog posts, but to rebut information which had taken 477 witnesses and nine court experts to conclude that a document had a false signature.

Continuing with the libel suit would violate their right to a fair hearing.

The right to freedom of expression pertaining to the assassinated journalist, her sources as well as her heirs would also be breached, argued Caruana Galizia’s heirs requesting the court to provide adequate remedies including a declaration to the effect that the libel suit had been extinguished through the journalist’s death.

Lawyers Therese Comodini Cachia, Joseph Zammit Maempel and Peter Caruana Galizia signed the application.