The judgment of the Constitutional Court of 27 February 2023 in the names Partit Nazzjonalista v. Awtorita tax-Xandir et which found PBS Ltd. (hereafter PBS) in breach of its constitutional and legal duty of impartiality was neither the first nor will it surely be the last that condemns PBS for breach of its duty of impartiality in news bulletins and current affairs programmes. Indeed, the public broadcasting service is not truly public because it has been, and continues to be, hijacked by the government of the day, be it Nationalist or Labourite. A more appropriate name should be Propaganda Broadcasting Services with the word propaganda being qualified by the term ‘government’ so that it represents reality on the ground.

Indeed, the history of public broadcasting services in Malta, at least since independence, has always been the history of the government of the day manipulating news bulletins and current affairs programmes to its advantage and to the detriment of the opposition and other dissenting voices, irrespective of whether the programmes are inhouse or farmed out. Very few and far between have been the inhouse programmes that respect impartiality in news bulletins and current affairs programming and by far less when these programmes are farmed out. It is not the purpose of this article to single out PBS broadcasters and independent producers who have, notwithstanding all odds and pressures from higher up, still respected this principle.

There are two main difficulties why PBS will continue to be partial in its programming, court judgments notwithstanding, and why it will continue to ignore with impunity Broadcasting Authority directives.

First, the Board of Directors of PBS is appointed by the government of the day and, as a government owned company that is not licensed by the Broadcasting Authority, it is mainly answerable to the competent minister. Broadcasting ministers came by the dozen but not one of them has ever felt the need, as a matter of urgency and good governance, to divest him/herself from this power and assign it to the broadcasting regulator whose lawful duty is to licence broadcasting services.

Second, the Broadcasting Authority, although it is the broadcasting regulator, fails to comply with its own constitutional and legal obligations. The above judgment has served as a severe bashing to the Authority that should make it blush but, once again, today everything is business as usual with the above court judgment falling by the wayside. The most impelling issue is the Authority’s composition: it is made up of two members loyal to government and another two members loyal to the opposition, with a chair who does not really know where s/he stands. Having four-fifths of the Authority that entertain a conflict of interest or – to use legal jargon – are not objectively impartial – the Authority cannot afford proper and effective oversight of PBS, more so that it is not PBS’s licensor. The conflict of interest is accentuated by the fact that the political parties represented in parliament have their own politically-biased stations that compete with PBS. The end result is that neither PBS, nor the Authority, can provide at all time an effective remedy to partiality in news bulletins and current affairs programmes aired by PBS.

The current PBS set-up is to the advantage of the two political parties represented in the House of Representatives, for when one is in government one gets all the propagandistic output it desires with no or limited criticism on PBS services. The party in opposition is well aware that when it is next time round in power, it will also obtain full loyalty from PBS. News items and current affairs programmes are censored inhouse so as not to embarrass the government of the day, bearing in mind that, according to Broadcasting Authority surveys, PBS stations are the most viewed and heard. Hence, they have more of a propagandistic impact when compared to commercial and political broadcasting stations. It is thus only the courts that can give an effective remedy in the absence of the competent minister providing an adequate oversight of the running of government propaganda broadcasting services. But, alas, as seen below, even the courts sometimes misfire.

Needless to say, small political parties are ostracised by PBS. So are civil society organisations and other dissenting voices who have difficulty in getting their message across through government’s propaganda machinery.

Unless and until these two aspects are resolved, that is, when we will have sometime in the future – more in the far distant than in the very near – a truly independent public broadcasting service and a truly independent broadcasting authority, the government will continue to dominate PBS news items and current affairs programmes and will continue to suppress any other ‘unorthodox’ voice.

The solution is to incorporate PBS as a public corporation falling under the office of the President where it is the latter who appoints its board of directors and approves the press editor. This decision will be taken by the President on his/her own initiative following public consultation. There ought to be no member of the board of directors that hails from political parties. PBS should no longer be licensed by the government but by the Broadcasting Authority as is the case with private radio and television stations, cable television, digital radio, satellite radio and television, community radio stations, as well as other forms of radio and television stations that operate in Malta. Indeed, it is very strange how come the Broadcasting Authority licences all broadcasting services except those controlled and manipulated by government - PBS.

The Prime Minister and the Leader of the Opposition should have no say, nor any representatives, on the Broadcasting Authority. The members of the Authority should also be independent of the political parties and chosen by the President on his/her own initiative and following public consultation. The budget of PBS and of the Authority should not be approved by the Minister of Finance, or by government, nor by the House of Representatives but should be a charge on the consolidated fund so that it will not be subject to approval by a third party that can somehow pull the strings. However, the law in question would have to allow for a maximum amount of money that can be spent on an annual basis by PBS and the Authority for their independence should not be understood to mean that they are above the law and can spent any amount of money without any form of control. Independence goes hand in hand with financial propriety. Needless to say, the Public Accounts Committee would have to keep in check such spending on an annual basis.

Whether these changes will ever take place is of course another matter. This is because the status quo is beneficial to both political parties in parliament and none of them would want to rock the boat for, after all, it is not the public interest that they want to defend but their own politically partisan interests that do not allow the diffusion of other voices on PBS except that of the government of the day and, to a lesser extent and as a form of tokenism, that of the opposition. We therefore have a democratic deficit that contributes to augment the rule of law deficit in Malta.

In the above court referred case, the Constitutional Court has wrongly declared that the minister responsible for broadcasting should not have been sued and for not requiring him to assume responsibility for his licensee’s unconstitutional behaviour in breach of the constitution and broadcasting law, two indispensable requirements of that licence. The court has failed to recognise that as the licensing authority, the broadcasting minister has the right and duty to ensure that PBS complies with the impartiality provision of the Constitution, the Broadcasting Act and subsidiary legislation made thereunder, and that the constitutional provision is upheld not violated. The minister cannot wash his hands of this responsibility as Pontius Pilate did before ordering the crucifixion of Jesus Christ.

We all know how things work in Malta for there is in this case a serious institutional failure on the part of the competent minister who refrains from exercising his/her supervisory duties once this is to the entire satisfaction of the political party in government, even if in breach of the national interest, freedom of expression, the rule of law, and the rule of impartiality in programming stipulated in the Constitution. Once the broadcasting minister has assumed responsibility to licence PBS, in lieu of the Broadcasting Authority, and thereby lawfully usurped its licensing power, the minister has to rise to the occasion and fulfil licensing duties. But then what do you expect the minister to do? To rein in PBS to the extent that its propagandistic value to government comes to a naught? Surely not. Never. Public interest apart, what purpose would PBS have for government if not for propaganda dissemination?

In particular, the Minister should not only have queried but even taken prompt and effective action against PBS for having failed to comply with a Broadcasting Authority decision without PBS even having had the decency to challenge that decision in court on some flimsy pretext to at least provide lip service to the rule of law as government invariably does. The Prime Minister is notorious for his statements on how much has been done (sic!) by his government to comply with rule of law requirements. But the writing on the wall points in the opposite direction as government continuously and with monotonous repetition derides the rule of law.

PBS’s failure to comply with a Broadcasting Authority decision should have sounded the alarm bells at the ministry and raised pertinent questions once such action is in breach of the rule of law. But no broadcasting minister has ever given it a thought that by allowing PBS to ignore with impunity Broadcasting Authority decisions, without challenging them in court in terms of the proper procedure laid down by law, the rule of law would be imperilled. In this particular case, what concrete steps did the minister take to ensure that PBS complies with the rule of law? None, of course, why bother, for it was not in government’s partisan interest to ruffle feathers. Instead, he gave his tacit blessing and connivance.

So, clearly, the broadcasting minister at the time of the episode in question had a crucial role to play but, instead, sought to abdicate therefrom through his complacency. PBS can operate only through the broadcasting licence issued to it by none other than the broadcasting minister. Without it, it has no right to broadcast. Hence, the minister’s involvement is imperative and decisive. As the licensor of PBS, the minister is and should be held accountable for his licensee’s failure more so that he took no action to exercise a proper oversight and supervision of his licensee’s misbehaviour. Otherwise, what type of responsible licensor is the minister? I am not aware of any other licensor in Malta who does not ensure that a licensee thereof complies with all the obligations imposed in the licence. The least one would have expected was for the minister to summon to his office the PBS chair to see what nonsense this was of disobeying a Broadcasting Authority decision with impunity, and at the most for the minister to request the PBS chair’s resignation or, in its absence, to replace him; instead, we got total inertia and business as usual on the minister’s part.

To add insult to injury, this serious ministerial dereliction of duties has now been approved by the Constitutional Court’s judgment that has non-suited the minister, thereby declaring that he had no responsibility for PBS misdeeds and giving PBS a carte blanche to ignore its own broadcasting licence conditions issued in terms of the Broadcasting Act. For through this judgment, the minister does not need to bother to supervise his licensee and the licensee does not need to worry that the licensor might revoke, suspend, abridge its licence or approve other punitive measures thereupon if it violates the Constitution and/or the Broadcasting Act for, after all, neither the Minister not PBS have at heart respect for the Constitution and the rule of law.

It is a pity that the Constitutional Court has allowed the minister to run scot-free and not answer for his grave failures of good governance, good administration, breach of the rule of law, and proper oversight over PBS in terms of the broadcasting licence under the Constitution and the Broadcasting Act that requires impartiality and the National Broadcasting Policy that binds uniquely PBS to affording impartiality in news bulletins and current affairs programmes.

Justice has not been served by this legalistic interpretation of the law for the minister could have intervened at any time with PBS both because he is its licensor and is responsible therefor to parliament whilst PBS falls under his ministerial portfolio, is a wholly government owned company (only government is its shareholder and calls the shots) and it enjoys no independence and impartiality from government. But the court upheld the letter of the law instead of dispensing justice, with the minister and the PBS chair now feasting joyfully to the court’s decision.

Perhaps the court is moving in the direction of establishing a new general principle of law that would surely obtain prompt governmental approval: ‘if you cannot beat them, join them’. The Constitutional Court’s judgment marks a very sad day for justice that has been betrayed for the umpteenth time by the judiciary who are there to serve it not to subvert it.

 

Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta