One particular article was this week subject to two appeal rulings within the span of less than a week concerning the media and this publishing house in particular. A factual article followed by a number of observations on the comments board. But these two completely different rulings lead one to seriously contemplate whether members of the judiciary are on the same page, or even reading from the same book, when it comes to the role of the press in society and the ethics guiding the press in its work.
The disparity between the two rulings also provides some cause for alarm considering how one judgement had ruled in no indistinct terms that the duty of the media is to act as a watchdog on those in public life was of the utmost importance, while a second ruling on the exact same case but involving different plaintiffs against this newspaper somehow found that we had no such right, and chastised us for basically having dared to ask uncomfortable questions about the actions of people in the public limelight.
In short, a first appeals judge overturned a Court of Magistrates verdict against this publishing house which had been in favour of Nexia BT’s Brian Tonna and Karl Cini of Panama companies and New Zealand trusts fame. The appeal court actually turned the original judgement on its head and found that the very least this newspaper could have done was to have raised the questions we were asking.
The case dealt with the story of the HSBC Attard branch ‘information reports’ requested by Tonna and Cini on behalf of their clients OPM chief of staff Keith Schembri and Malcolm Scerri, the general manager of the company Schembri owns, Kasco Ltd. The reports, however, had been issued at a time in which the branch in question had already been closed down for some time.
The issue was a strange one but was not unfamiliar subject matter in those days when revelations from the Panama Papers were emerging on a near-daily basis.
This newspaper had reported that an investigation by the bank was expected into the alleged fraudulent documents that vouched for Schembri and Scerri, and an investigation was indeed carried out.
Mr Justice Anthony Ellul had found our article on the subject a ‘beyond legitimate’ exercise, in the appeal ruling against Tonna and Cini, while, very strangely, Madame Justice Joanne Vella Cuschieri this week ruled, in the exact same appeal case, but this one involving Schembri and Scerri, that we had no such right to ask any such questions.
So which one is it?
We do not believe that there can be any room for interpretation on this one: it is not only incomprehensible but it is unacceptable that the Court of Appeal in the same week, on the same article delivered such chalk and cheese conflicting conclusions.
This is not only an injustice to the justice that members of the judiciary are called to serve, it is also an injustice on the Fourth Estate and its sacrosanct duty to hold all the powers that be in this country to account.
One should quite rightly take to task the fact that not only are members of the judiciary not reading from the same book, the writings of which need to be applied to all in equal measure, but also the fact that there exists little or no coordination between judiciaries hearing the same cases.
The second court presided over by Madame Justice Vella Cuschieri should have certainly been informed of or have been aware of the ruling of the first court presided over by Mr Justice Ellul. But, then again, it would be even more concerning if the second court had been aware of the first court’s ruling and had actually ignored it.
Moreover, we should also question why it was that the decisions had not been not delivered by the same court of appeal, and instead by two separate courts presided over by two different judges. It was Ellul who had ruled against Tonna and Cini and it had been Vella Cuschieri who had ruled in favour of Schembri and Scerri.
This brings us to the point, which we absolutely need to make especially given the political background, that the second judgement was replete with comments that went well beyond legal considerations and aspects.
Given that, should Madame Justice have not felt compelled in any way whatsoever to have recused herself from the case given her well-known political past? After all, this, like every case before every judiciary, is also a question of justice not only having been done, but also being seen to have been done.
This ruling, we are sorry to say, fails to achieve that overriding objective, and is amply evidenced from the subsequent comments and reactions from members of the public to what at least we consider to have been an outlandish ruling based on tenuous reasoning.
Moreover, considering the fact that Vella Cuschieri’s appointment as a judge is today still subject to consideration, as are those of two other judges and three magistrates who were also promoted and/or appointed at the 11th hour before the recent recommendations of the Council of Europe’s Venice Commission were to be transposed, we also need to ask whether this particular judge had really been the right individual to decide on a case which involves the highest of officials of the very same office that nominated her?
The second court evidently missed the distinction between the article in question and the comments from readers appearing underneath it on our web portal. One could accept criticism by the Courts regarding the fact that comments made it to the comments sections which may not have been acceptable and possibly even defamatory, at a time when comments were not yet moderated, however, going heas far as saying that we had maliciously allowed derogatory comments about Schembri to make it to our comments section, is in itself a gratutious conclusion.
Why she failed to make the distinction between the article itself and the comments, as the first court had done, remains inexplicable and raises numerous questions.
The fact of the matter is that these contradictory decisions do very little justice to the justice system at all, and the gross conflict between the first and second sentences merit further verification.
And, most importantly, and we do not say this for the sake of our own sake, we say this because journalists, at the very least like every other citizen in this country, need to proper redress from courts that are free from fear or favour from anyone on any level.