On Monday, September 20th, 2004, the First Hall of the Civil Court presided by Mr. Justice NOEL CUSCHIERI, provisionally acceded to the request filed on the same day by SMASH Communications Ltd to bar the Broadcasting Authority and its Chief Executive from holding any meeting to hear evidence and decide on an issue relating to a TV programme which was broadcast on SMASH TV last April 1st, 2004.

The Broadcasting Authority and its Chief Executive were given five (5) days to reply to this provisional order by the First Hall of the Civil Court relating to Warrant of Inhibition number: 1686/2004.

As this case, in terms of legal parlance is now sub-iudice, I will not delve into the merits of this case, but analyse briefly the principles involved which led SMASH Communications Ltd to file a lawsuit against the Broadcasting Authority and its Chief Executive.

On July 1st, 2004, Smash Communications Ltd filed lawsuit number: 481/04-NC against the Broadcasting Authority and its Chief Executive. In this lawsuit, Smash Communications Ltd requested the Court to decide on a number of important issues, foremost among which is that while Smash Communications Ltd accepts the fact that in accordance with the pertinent law the Broadcasting Authority is empowered to issue an accusation relating to some Radio or Television programme in line with the Broadcasting Act, on the other-hand SMASH is contending that the Broadcasting Authority cannot be empowered to preside over such accusation on its part, and furthermore to pronounce judgment relating to an accusation which is issued by the Broadcasting Authority.

On its part the Broadcasting Authority is contending that it is not correct at law to state that the Broadcasting Authority is both the prosecutor and the judge at the same time, and that it is infact the Chief Executive of the Broadcasting Authority to issue such an accusation while it is the Broadcasting Authority that decides upon such an accusation. Furthermore, the Broadcasting Authority contends that the Chief Executive is not a member of the Broadcasting Authority and that the Chief Executive does not discuss or take an active role with the Authority in deciding whatever accusation the Chief Executive would have issued.

On such an important point in the broadcasting field, Smash Communications Ltd is requesting a formal Court decision on the matter, and in the circumstances it would appear to be highly imprudent on the part of the Broadcasting Authority and its Chief Executive to keep on issuing summonses to Smash Communications Ltd to appear before the Broadcasting Authority, to hear and determine a case relating to which these fundamental principles are being contested formally in a lawsuit before our Courts of Justice.

This is what led to Smash Communications Ltd requesting the issuing of a warrant of prohibitory injunction against the Broadcasting Authority and its Chief Executive, which as stated in the beginning of this article has now been provisionally acceded to, with the Broadcasting Authority and its Chief Executive being given five (5) days to reply to this contention.

Indeed writ of summons number: 481/04 before the First Hall of the Civil Court being presided by Mr. Justice Noel Cuschieri is formally set for hearing on October 5th, 2004, at 09.30am.

Another aspect which Smash Communications Ltd wants to clarify is its contention that indeed the Broadcasting Authority and its Chief Executive are in reality, even at law, two sides of the same coin, in that not only is the office of the Chief Executive housed in the same building as the Broadcasting Authority, but equally it is a well known fact that the Chief Executive is always present for every meeting that the Broadcasting Authority holds, participates in the overall policy as formulated by the Broadcasting Authority relating to its legal functions, and more-so is equally present in every decision that is taken and minuted at meetings held by the Broadcasting Authority.

Hence, Smash Communications Ltd is contending that indeed the Chief Executive is an official of the Broadcasting Authority and in the circumstances forms an integral part of the institution setting up the Broadcasting Authority as safeguarded by the Malta Constitution and the Broadcasting Act, and other regulations that relate to broadcasting in these Islands.

Hence, while the Broadcasting Authority is asserting that there is no link between the Broadcasting Authority and its Chief Executive, Smash Communications Ltd does not agree on this assertion. For instance, this situation is radically different between the Police and the Courts of Justice where by the two entities are visibly distinct both in their institutionalizing and the mode they operate. Whereas the Chief Executive and the Broadcasting Authority obviously are two sides of the same coin in every factual way!

Smash Communications Ltd in a most prudent way, and while naturally having the utmost respect for the Broadcasting Authority and its Chief Executive wants a clear and formal decision on this aspect from our Courts of Justice. Notwithstanding such a lawsuit having been filed on July 1st, 2004, the Broadcasting Authority still persisted in wanting to keep on hearing a case when the infrastructural principles upon which this case is being heard are being formally contested before our Courts of Justice.

In this respect, and without any respect, Smash Communications Ltd disagrees with what it terms an arrogant attitude on the part of the Broadcasting Authority and its Chief Executive to keep stressing that they just the same want to hear the case, as if they are implying that they are above the Courts of Justice. This is a situation which naturally in a democracy where the Rule of Law should govern, Smash Communications Ltd is not prepared to accept.

Hence why a second request for the issuing of a Prohibitory Injunction has been made, which as stated, has now been provisionally acceded to Monday, September 20th, 2004, with a time limit given to the Broadcasting Authority and its Chief Executive to reply.

May Justice be not only done, but equally important be seen to be done!