Groundbreaking constitutional case aims to protect right to know

“Freedom of expression is precious, and opposition to government oppression is essential.”

— Daphne Caruana Galizia, 16 May 2017

Update on 14 November 2022: The Constitutional claim was filed against the Ministry for the Environment, Energy and Enterprise. The Ministry had a choice between losing the Constitutional case or disclosing the Security of Supply Agreement. They chose to give us the Agreement so, at the next court hearing, on 14 November 2022, we ceded the Constitutional case.

A team of Public Interest Litigation Network (PILN) lawyers and the Daphne Caruana Galizia Foundation are challenging Malta’s Freedom of Information (FOI) Act in the Constitutional Court, arguing that the remedies it provides are unconstitutional because they do not respect the right to freedom of expression and information protected by Article 41. The case, filed last week, is the first ever to challenge the FOI Act and the misuse of FOI procedures to block or limit access to information within a reasonable time.

The case aims to limit state authorities’ arbitrary refusals to provide information in the public interest and to reverse the culture of secrecy behind their claims of privacy and commercial sensitivity, enabling public interest journalism to hold power to account. It is based on FOI requests for a secret agreement, signed by Konrad Mizzi on behalf of Malta Government and by SOCAR Trading SA, and for a report on the feasibility of a second interconnector to Malta. The energy ministry has refused both requests on questionable grounds.

Our application asks the court to:

1. declare that the energy minister’s refusal to provide access to the requested information violates the Constitutional right to free expression and information;
2. rule that the FOI Act’s remedies for rejected requests infringe an applicant’s fundamental rights;
3. declare null and void specific parts of the FOI Act that are in conflict with the Constitutional right to free expression and information;
4. take appropriate steps to offer redress to the applicant.

Public Interest Litigation Network (PILN) members Dr Claire Bonello, Dr Alain Muscat, and Dr Joseph Mizzi filed the Constitutional case on behalf of the Daphne Caruana Galizia Foundation and its director. Dr Bonello has been practising law for over 20 years. She is a legal consultant for environmental NGOs and has led campaigns in relation to residents’ rights. Dr Muscat and Dr Mizzi are partners at Muscat Mizzi Advocates, a boutique law firm with offices in Valletta and Rabat.

Background - Public Interest Litigation Network (PILN)

The PILN is a network of lawyers focussed on cases of human rights violations and other matters of public interest, exploring national, supranational, and international legal mechanisms to ensure State and individual accountability, address abuses of power, and engage civil society and the legal community to advance social change. It is currently made up of sixteen members covering a wide range of legal expertise with years of experience in human rights, media, environmental and planning, constitutional, commercial, and civil law. Five members form the Governance Committee which oversees the function of the network and selects cases for onward referral to its members. The PILN was launched by the Daphne Caruana Galizia Foundation in September 2021, but functions autonomously. It is currently funded by Iceland, Liechtenstein and Norway through the EEA Grants Active Citizens Fund, which is operated in Malta by the NGO, SOS Malta.