As promised, the Prime Minister has started legal proceedings to annul the deed between Gaffarena and the Lands Department and in the process recover the property given to Gaffarena. This may appear a normal case instituted by Government against a third party. But it is not. This case already has a number of bizarre decisions that do not make sense. I will explain why.
The Attorney General did not start court procedures only against Gaffarena but also against the Government Lands Department. But how can the Attorney General start legal proceedings against the Government that it is bound by the constitution to defend? The Lands Department is part and parcel of Government, and it therefore does not make sense for the Attorney General to be the main prosecutor against the Lands Department. This is the first time in the whole legal history of Malta that the attorney general instituted a legal case against such an entity. The Attorney General needs now to explain how his office or he himself got entangled in this legal mess.
Both the Prime Minister and the Attorney General may reply that this time, the Prime Minister is not suing the Lands Department in his capacity as prime Minister but in his role as Member of Parliament. This does not make legal sense. We should not forget that the Prime Minister is the minister responsible for this Department. Therefore, I cannot understand how the Attorney General expects the Prime Minister to sue a department, which ultimately comes under his direct portfolio.
In Latin, all this is called contradictio in adjecto or contradiction in terms. This can happen only in Malta. I am sure that the Attorney General will provide the chapter and verse to justify his action, but this does not exonerate the said office from the legal conundrum that it has created. Am I right to state that by so doing, the Prime Minister is admitting that he and his government are in the wrong? In other words, can all this be interpreted that the Prime Minister is suing himself? But there is more than just the Prime Minister suing himself.
What the readers need to keep in mind is that any Government Department is represented in court by the Office of the Attorney General with no exception. Therefore, we have here another anomaly. The Attorney General has started legal proceedings against one of his own clients. Perhaps, the Nationalist Party has a fault in this legal conundrum. It is the PN who started the practice of farming out legal contracts to private chambers and individuals to assist Government Departments in civil court cases. Thus, one needs to ask a number of questions here.
Was the Attorney General office consulted by the Lands Department prior to the Gaffarena deals going ahead? Or was consultation, if ever there was any, carried out by one of the farmed out legal chambers? But was there a need for the Lands Department to consult the Attorney General if from a legal point of view, the transactions were carried out correctly?
The Attorney General is the point of reference for any Department, Heads of Departments, Directors, Permanent Secretaries etc. They are expected to consult the Attorney General about any legal issue that they may have concerning their particular department. Therefore, it is unheard of that this government department cannot be defended at court by the Attorney General because the same office is suing a department on the instigation of an MP.
If the Prime Minister wants to act in his personal capacity as an MP, then he should have sought private legal chambers and not the office of the Attorney General. But I did not know that the Attorney General’s office is now giving advice to members of parliament. Therefore, what would happen if now, any MP decides to open a case against the Government? Would the MP be assisted by the Attorney General and would the Department have to seek private legal advice?
Thus, a dangerous precedent has been established that when an MP sues a Government Department, the Government Department in question needs now to ask a private lawyer to represent it in court. As court cases require quick action, how can a department appoint or select a law firm or lawyer for this case? Do the normal rules of the Civil Service apply in these circumstances for the selection of a lawyer or a firm?
It was in the news that the Lands Department is in quandary to find a lawyer as the private lawyer that has a contract with this Department, Dr. Filetti, has declined to defend this Department in court. I am sure that Dr. Filetti had been selected by the Lands Department after a rigorous process, which must have taken some time, if not months until it was finished.
Are these same rules going to apply now to the Lands Department in appointing a Legal Firm to represent it at court? Can the Lands Department arbitrarily choose a legal firm without first issuing an expression of interest and passing through the normal civil service channels and rules?
In the meantime, the same Department is faced with the urgency of replying back to the Attorney General’s letter. There are legal deadlines set by law, which cannot be breached during which the Lands Department needs to reply to this judicial protest. I am sure that the Attorney General knew about all the bureaucratic difficulties that the Lands Department was going to face when he decided to sue this Department.
Yet, the saga does not end here. Once the Lands Department has selected the lawyer or the legal firm that is going to represent it in court, the same department needs to go to the Office of the Prime Minister, as the Minister for Lands, to approve its choice. The MP who is now suing the Lands is bound by law to approve the lawyer who is going to be fighting the case against him. I am sure that this is another first for our judicial history.
In this legal scenario, the prospects of the Prime Minister and the Attorney General winning this case are very dim. This fact has already been stated by Simon Busuttil and he is completely right. What was not said by Dr. Busuttil is that if this case is lost, the Maltese Government will then be open to other lawsuits by Gaffarena for damages he sustained due to this lawsuit. In the process Gaffarena will continue to line his pockets thanks to Muscat’s Administration. Gaffarena could rightly argue that this case was instigated against him by the Attorney General, irrespective of the fact, whether the Prime Minister is appearing in his capacity of Prime Minister or a simple member of Parliament.
In the meantime, I cannot but thank the Nationalist MP Ryan Callus who had the guts to defend workers during the press conference he gave outside the Lands Department. Those same workers, who in their majority are Labour, were called “ġrieden” or “mice” by a media outlet. The same workers were again thanked by the disgraced Michael Falzon, while he was defending himself on Xarabank.
In this situation, I wish to make a humble suggestion to the Nationalist Party. Why doesn’t the PN through one of their lawyers constitute themselves, parte civile in this case? If the Opposition accepts to take this road, it would be showing that it has at heart the assets of the people of Malta. It is the duty of the Opposition to defend the interests of the Maltese state.
In this whole legal conundrum, I cannot but agree with Dr. Franco Debono, who publicly stated that in the justice system, this government turned Malta upside down or “ta’ taħt fuq”.