The Malta Independent 21 April 2019, Sunday

Egrant Magisterial inquiry: why there are no terms of reference

Helena Grech Monday, 1 May 2017, 08:30 Last update: about 3 years ago

Speculation has been rife on why no terms of reference have been made known for the magisterial inquiry into allegations made by journalist and blogger Daphne Caruana Galizia on the true beneficiary of Egrant Inc, a company named in the Panama Papers scandal. It is up to the Attorney General, on receiving a request, whether to decide on the publication of the inquiry or not.

In a magisterial inquiry, unlike investigations launched under the Inquiries Act, a duty magistrate receives a request put forward by the police or a private citizen, following a report, information or complaints received.

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When asked by The Malta Independent on Sunday¸ the police confirmed that, “This is a magisterial inquiry ‘in genere’ under Article 546, Chapter 9 [the Criminal Code] of the laws of Malta, and [the inquiry] was launched through a report sent to the magistrate by the executive police, which report forms part of the magisterial inquiry itself.

“I would like to inform you that this inquiry does not fall under the Inquiries Act.”

Investigations launched through the Inquiries Act limit the scope of a public official’s activities, and have specific terms of reference. A magisterial inquiry however has a far broader scope due to not being tied down by terms of reference or tied to investigating a public official. It must investigate anything related to the ‘fact’ that is being described in a report sent to the magistrate, allowing for a much broader and more comprehensive investigation.

This is why the Nationalist Party, through its leader Simon Busuttil, was allowed to bring fresh allegations, this time involving Pilatus Bank, the Prime Minister’s chief of staff Keith Schembri and Nexia BT managing director Brian Tonna, rather than the Muscats and Egrant, to Magistrate Aaron Bugeja, who is leading the inquiry.

Last week, Malta was rocked by allegations that the Prime Minister’s wife, Michelle Muscat, is the ultimate beneficial owner of Egrant Inc. Egrant is the third company acquired by the managing director of Nexia BT, Brian Tonna, alongside the Panama companies of Minister without Portfolio Konrad Mizzi and Keith Schembri.

For a full year speculation as to who Egrant was intended for has been rife. Mrs Caruana Galizia also alleged that a daughter of the Azerbaijani President, Leyla Aliyeva, through a Dubai company with a bank account at Pilatus Bank, Ta Xbiex, paid US$1.017 million to Egrant. Following this allegation, the Prime Minister called an urgent press conference to deny any links with Egrant. Straight after the press conference, the chairman of Pilatus Bank and a risk manager named Antoniella Gauci were filmed by Net TV crew (the PN media) leaving the bank through an emergency exit holding two pieces of luggage. The Prime Minister then issued a press statement saying that after consulting with his lawyers, they asked the Police Commissioner to submit a report to the duty magistrate.

Later on in the week, Dr Busuttil announced that following an appeal for people to come forward with any information on corruption taking place at Castille, the PN was made aware that Mr Schembri had received kickbacks worth €100,000 from Mr Tonna. He said that Mr Tonna had received €166,831.90 – in an account he owns under the name of Willerby Trading Inc. – in fees for the sale of passports to three Russian individuals, and then made two transfers of €50,000 each to a bank account held by Mr Schembri through their respective bank accounts at Pilatus Bank. Mr Schembri is rejecting the allegations.

Dr Busuttil was allowed to testify before Magistrate Bugeja regarding the allegations because of the nature of the inquiry.

Once the inquiry is concluded, the magistrate will draw a report, which is made up of all testimony and is known as the ‘proces verbal’. This report is then sent to the Attorney General, together with recommendations. Should the proces verbal, which contains all expert evidence as well as testimony, include a recommendation that action be taken against somebody, a copy is sent to the police.

If there is no such recommendation and the Attorney General believes that further investigation should be carried out, he may ask the Magistrate to continue with his inquiry.

There is no procedure or obligation for a Magistrate to inform the public that an inquiry has been concluded. It is also up to the discretion of the Attorney General whether to publish the report or not, after a formal request is made. Such a request can be made by any ordinary citizen.

In addition to this, throughout the course of a Magisterial Inquiry, the magistrate and the police work together, with the magistrate overseeing the whole process, and the police carrying out the investigations. Police involved in a magisterial inquiry may at least hold the rank of inspector, and are essential because the role of the police is clearly defined by law as the authority responsible to investigate any possible crimes and keep the public peace.

 

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