The Malta Independent 19 November 2018, Monday

Gaffarena court case: PM rules himself out of being a defendant

Kevin Schembri Orland Sunday, 14 February 2016, 11:00 Last update: about 4 years ago

A number of legal experts speaking to this newspaper have pointed out that, by having initiated court proceedings against Marco Gaffarena in his own name to reverse the Old Mint Street deals, Prime Minister Joseph Muscat has effectively ruled himself out of being a possible defendant in the proceedings.

In the immediate wake of the publication of the National Audit Office’s report on the Gaffarena scandal, and the resignation of former Parliamentary Secretary for Lands Michael Falzon, Dr Muscat had announced that he would make good on his promise to attempt to reverse the deals.

He then proceeded to file two court cases in this respect, in his own name and in his capacity as a Member of Parliament.

The problem with this is that, since the Parliamentary Secretariat responsible for Lands falls under the direct remit of the Office of the Prime Minister, it was the Prime Minister himself who was the Minister ultimately responsible for the debacle. But, according to legal experts speaking with this newspaper, by filing legal proceedings in his own name he may very well have saved himself from the embarrassing situation of being called up as a defendant.

Dr Muscat has defended his choice to initiate legal proceedings as a Member of Parliament, rather than as the Prime Minister. 

In reply to questions from this newspaper, he said: “The action which was filed is a special action that may be exercised in the public interest according to Article 4 of the Disposal of Government Land Act. It is the law itself which states that the action may be filed by the Attorney General and by any person who is a member of the House of Representatives at the time when the action is filed.”

Asked why he chose to bring the case forward in its current form, rather than move on charges related to fraud, he said: “The action granted by Article 4 of the Disposal of Government Land Act is one for the annulment of the transfer of government land which was not made according to Article 3 of the same Act. It cannot be made outside the terms of the same law.”

Dr Muscat went on to say that the action as filed is based on matters of substance regarding compliance with the requisites of the Disposal of Government Land Act.

 

‘It’s a charade, and I will not be part of it’ –Busuttil

Asked by this newspaper why he had not initiated the court action himself against Marco Gaffarena, given that the law allows for such action, Opposition leader Simon Busuttil labelled the case “a charade”.

He explained, “The case was filed by the Prime Minister against himself, something that is unprecedented and exposes the entire system of governance to ridicule. It is therefore a charade and I will not be part of a charade.

“I could not have filed the case myself at an earlier stage because I did not have all the information that was available to the Prime Minister from the start. As the National Audit Office (NAO) confirmed, this scandal was devised in Castille.

“Moreover, I did not have a copy of the Internal Audit and Investigations Department (IAID) report, which was available to the Prime Minister for four months. It was only after the publication of the NAO report that all the information was brought to the attention of the public at large. In the circumstances, the Opposition pursued this matter in Parliament, which is the forum where it could act most effectively.”

 

Action filed in the public interest – Attorney General

The Attorney-General, when asked by this newspaper who he was representing in the case – Joseph Muscat or the state – replied: “The Office of the Attorney-General is representing both the Attorney-General himself and the Prime Minister in his capacity as a Member of the House of Representatives, in an action which is filed jointly. The action is granted to any Member of the House of Representatives and to the Attorney General under Article 4 of the Disposal of Government Land Act. It is by no means a private action but an action that is filed in the public interest by a Member of the House to impugn a transfer of government land not made in accordance with the Disposal of Government Land Act.”

Asked about the possibility of a conflict of interest, given that the Commissioner for Lands is a defendant in the case, the Attorney-General explained that: “The Law itself grants the Attorney-General the right to institute this action in which the Commissioner of Lands necessarily has to be a party. The question of a conflict of interest does not arise.”

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