The Civil Court, First Hall (Constitutional Competence)’s judgment of 14 July 2022 in the names Nationalist Party vs. Broadcasting Authority, PBS Ltd., minister responsible for broadcasting, and the State Advocate, decided by Mr Justice Grazio Mercieca, reiterates what past court judgments in relation to public service broadcasting and regulation have been stating ad nauseam and which have been repeatedly falling on deaf ears: that there is an explosive situation in public service broadcasting and broadcasting regulation that needs to be addressed forthwith legislatively.

This latest judgment raises important issues that have been pending resolution for decades and have to date not been addressed, let alone addressed successfully. These continue to bring Malta into disrepute from a law of law perspective. Yet the government – who should take the initiative to redress matters – instead, prefers to sit conveniently on the fence when it knows that there is a rule of law deficit in this area and that this deficit is continuously being monitored and criticised by foreign institutions in relation to Malta’s rule of law ongoing failures.

From a reading of this judgment, the conclusion that can be drawn is that the rule of law is now being flouted not only by government but, to worsen matters, also by the Broadcasting Authority – a supposed independent regulator – and PBS Ltd.

Amongst other disturbing factors, the following are noteworthy:

(1)   The licensing of PBS Ltd. radio and television stations. These stations are licensed directly by the government not by the broadcasting regulator, the Broadcasting Authority. Whilst the latter licences private radio and television stations, digital radio, satellite television, community radio stations, cable and digital broadcasting platforms, and the political parties’ stations, the only stations that it does not licence are those of PBS Ltd. Why is there no level playing field in the broadcasting sector? Why should PBS Ltd. be privileged over other broadcasters?

(2)   The appointment of the Board of Directors and Editorial Board of PBS Ltd. PBS Ltd. has throughout the years often tilted the balance in its programmes in favour of the government of the day to the detriment of other political parties, civil society, and other bodies and persons critical of government. It is there not to serve the public interest as the Constitution mandates but government partisan interests and this irrespective of which political party is in government. Being totally government owned and licensed, PBS Ltd. is nothing but government’s broadcasting mouthpiece. Its Board of Directors and its Editorial Board are all appointed and removed by government and are answerable only thereto. What more degree of dependency is required for PBS Ltd. to serve government  to its utmost?

(3)   The bipartisan appointment of the Broadcasting Authority. The practice that the Broadcasting Authority members to the effect that two members are chosen by the Prime Minister, another two by the Leader of the Opposition, and on the chair there is supposed to be some form of consultation between the Prime Minister and the Leader of the Opposition, defeats the whole purpose of having an impartial Broadcasting Authority as mandated by the Constitution whose principal purpose is to act in the public interest. Once again, this flawed practice adopted by the political leaders is in breach of the Constitution, even if it works out to be to the entire satisfaction of the two political parties represented in the Parliament. Instead of an impartial authority, there is in place a bipartisan PL-PN authority that safeguards primarily government’s interests and, when suitable to government, those of the opposition as well. Further, the Prime Minister and the Leader of the Opposition clearly entertain an actual conflict of interest in their constitutional roles as interpreted and applied by them: they are not the best persons to select four out of five members of the Broadcasting Authority when their respective political parties own a radio and television station each. For that matter, nor is the Prime Minister the best person to select the Broadcasting Authority’s chair. Do they not have a conflict of interest in appointing the supervisors of their own political radio and television stations? Are they not judges in their own cause?

(4)   The political stations. The Constitution dictates broadcasting impartiality. But how can the political stations be impartial when they are nothing but a means of propaganda for the political parties that own them? Of course, the Broadcasting Authority, to serve the interests of the political parties rather than the public interest, took the unconstitutional decision of declaring that the political parties balance out each other and, therefore, there is no problem of impartiality as what one does wrong and unconstitutional, the other does wrong and unconstitutional too! But the Constitution does not accept this balancing out system: it requires each and every broadcasting station, irrespective of who owns it, to be impartial. This is just a Broadcasting Authority decision, inspired by a non-binding provision adopted by the two political parties in the House contained in the Broadcasting Act taken to appease its political masters. On the contrary, hypocritically, the Authority expects other stations to balance out themselves! Once again, different standards and different measures being applied to broadcasters to suit political parties that own political stations.

(5)   Political broadcasting. Whilst the courts have declared that the Broadcasting Authority prohibition of political spots outside a scheme of political broadcasts is illegal, to date, the Broadcasting Act has not been amended to be brought in line with the courts’ judgments. Furthermore, whilst the courts have stated that non-parliamentary represented parties have to be duly represented in the Authority’s scheme of political broadcasts, there have been attempts in the past to restrict beyond reasonableness these parties’ participation in that scheme, not to mention the derisory time allocation of a few minutes to such political parties and independent candidates in a whole scheme of political broadcasts. As though these are not after all part of the democratic electoral process!

(6)   The Constitution requires fair apportionment of time and facilities. Whilst the two parliamentary political parties have their own radio and television stations, not to mention other media, the other parties have none and may exceptionally purchase airtime under very strict conditions not imposed upon the two major parties, apart from the fact that the major parties do not allow – or when they perfunctorily do, they allow negligible – broadcasting time allocation for other parties on their radio and television stations.

(7)   Public service advertisements. The exaggerated amount of advertisements on the public service broadcaster that eats out of the broadcasting advertising revenue of private stations which are not placed on a level playing field with PBS Ltd. that has government coffers to make good for its continuous annual deficits.

(8)   A Tame Broadcasting Authority. Although the Authority is empowered to give directives to a recalcitrant PBS Ltd., rather than coming down as a ton of bricks on it, the Authority handles it with kid gloves. In the said judgment it is reported that PBS Ltd. failed to honour the Authority’s directive, ignored it totally, and not even showing, at least, an appearance of decency by challenging it in court. What happened afterwards? Nothing. Did the minister responsible for broadcasting dismiss the Board of Directors for failure to comply with the rule of law? Of course not! PBS Ltd. is serving perfectly government’s (not the public’s) interest. After the Broadcasting Authority inflicts an administrative penalty on PBS Ltd., it then – kindly enough – suspends the penalty after PBS Ltd. decides to obey the Authority’s order when, by doing so, due to the long lapse of time, the Authority’s decision is rendered meaningless and remediless. Yet there is no provision in the Broadcasting Act to authorise it to suspend an administrative penalty! Only a court can do so when it judicially reviews the Authority’s decision. What type of regulator is this? First, the Authority orders a right of reply; its right of reply is totally ignored; it then imposes an administrative penalty; yet when the remedy become totally irrelevant, the Authority negotiates with PBS Ltd. for the latter to broadcast what has now become an irrelevant reply and it will in turn suspend – in breach of the Broadcasting Act and of the rule of law – the administrative penalty imposed on PBS Ltd. If this is not comical, then what is?

To add further farce to the tragicomedy, when the Authority orders PBS Ltd. to broadcast the right of reply, it orders it to do so ‘without delay’ leaving it up to PBS Ltd. to decide when is the appropriate time to broadcast it. The Broadcasting Authority, in the past, used to decide itself the date and time when the right of reply is to be broadcast (normally on the same day of the decision or, at the latest, on the next day), not leave it up to the station to neutralise completely the Authority’s decision.

There is no doubt that fairness, impartiality and reasonable allocation of broadcasting time and facilities to all political parties is neither on the agenda of the Broadcasting Authority that is controlled by the political parties, or of PBS Ltd. that is wholly controlled by the government. Of course, every now and then the political party in government goes into opposition and complains against the unconstitutional measures of the Authority and PBS Ltd. forgetting, in the meantime, that those measures it is now criticising were the order of the day when the opposition party was in government. Hypocrisy par excellence!

Yet it is clear that both the government and the opposition are satisfied with the status quo: the government that can use PBS as its own broadcasting instrument of propaganda and the opposition in full knowledge that next time when it is in government it will have PBS Ltd. as its own broadcasting propaganda tool. This is what the court referred to as ‘the winner takes it all’ phenomenon of Maltese politics.

The end result is that the public interest is not served by a Broadcasting Authority that is controlled by the two major political parties and PBS Ltd that is controlled by the government of the day. Public broadcasting services is, in fact, government broadcasting services as the public interest has been substituted by the government’s interest. This is how it was and this is how it will continue to be in the current bipartisan arrangement that is to the satisfaction of both political parties represented in the House of Representatives.

Indeed, another tragic day for the rule of law in Malta!

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta