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Yorgen Fenech will not testify in PAC before legal proceedings conclude

Kevin Schembri Orland Tuesday, 23 May 2023, 13:42 Last update: about 12 months ago

Yorgen Fenech will not testify in the Public Accounts Committee (PAC) over the Electrogas deal until legal proceedings before the courts conclude.

Fenech, who stands accused in court of commissioning the murder of journalist Daphne Caruana Galizia, was flanked by lawyers Charles Mercieca and Gianluca Caruana Curran as he appeared before the PAC on Tuesday. He was scheduled to testify in hearings about the National Audit Office's inquiry into the Electrogas power plant deal.

Before Fenech took the oath as a witness, Mercieca said that Fenech stands charged in the criminal court and that the alleged motive is the subject being discussed before the committee. The lawyers argued that at this stage they would ask the committee to suspend Fenech's testimony pending the conclusion of those proceedings.

PAC Chairman Darren Carabott said that the committee is discussing the NAO reports about the contracts awarded by Enemalta to Electrogas, questioning whether the lawyers are saying that this was the alleged motive.

Mercieca responded by saying that Fenech and his defence team are denying the allegations. The alleged motive was mentioned by the prosecution in court, he said, even pointing to it being mentioned in a constitutional case.

Fenech's lawyers also highlighted past rulings where the Speaker of the House did not permit a debate in Parliament due to processes being sub judice, and Carabott highlighted recent rulings placing the burden on the witness to identify if there are proceedings in court directly tied with what is being discussed in the committee.

The committee sitting was then suspended for all parties to consult previous rulings and Parliament's standing orders.

When the sitting resumed. Fenech's lawyers submitted that "as the committee knows, Fenech is accused with a crime before the criminal court, where the motive of the crime according to the prosecution is the material being discussed by the committee. On circumstances like this, Erskine May Paragraph 38.25, applicable for these procedures through the Standing Orders reads: 'Committees have suspended inquiries in progress because a witness had been charged with criminal offences related to the subject-matter of the inquiry or have decided not to take evidence from particular witnesses in the course of an inquiry because the committee had been informed that the witnesses would also be witnesses in impending criminal or civil proceedings.' As such, due to what Erskine May states and also the rulings delivered by the Speaker of the House on 25 November 2019, 26 November 2019 and 16 June 2020, the committee is being asked to, pending the outcome of the proceedings that are presently sub judice, not take the testimony of Fenech at this stage."

Mercieca also clarified that the request was for all proceedings that are sub judice related to the merits of the subject being discussed by the committee, highlighting that there are both criminal and civil proceedings. Four court cases were identified.

Carabott said he took this to mean that once these four cases conclude then Fenech would be  ready to come before the committee and answer questions.
On the rulings that were mentioned by Carabott, Mercieca said they don't apply to this process as they dealt with individuals who did not have pending procedures tied to the subject being discussed in the committee. 
Fenech and his lawyers were asked to leave the room while the committee deliberated on the request for his testimony to be suspended.

Carabott said that this legislature this committee has not faced such a circumstance. He suggested that at this stage the committee suspend Fenech's testimony until these cases are decided and then the committee could then hear his testimony. There was agreement.

Fenech was brought back in, and informed about the committee's decision. He left and before the committee adjourned, Carabott commented on the situation, saying that it is 'exceptional' to have the use of the taxpayers money being discussed in the criminal court, "when this should never happen in a normal country."

 


 

 


15.07: Carabott commented on the situation, saying that it is ‘exceptional’ to have the use of the taxpayers money being discussed in court. The meeting was adjourned.

15.04: The witness was asked to step out while the committee deliberated.

Carabott said that the accused made reference to four cases that are sub judice and requested that the committee suspend until the four cases conclude.

He read the quotation in the Constitutional case regarding the motive cited by the lawyers.

Carabott suggested that the committee should suspend the testimony until the cases are decided and can then listen to Fenech's testimony once they conclude. There were no objections.

Fenech was brought back in, and told about the committee's decision.

14.48: The sitting resumed. Mercieca said that Fenech's lawyers "submit that, as the committee eknows, Fenech is accused with a crime in front of the criminal court where the motive according to the prosecution is the material being discussed by the committee. On circumstances like this, Erskin May Paragraph 38.25 is applicable for these procedures through the Standing Orders reads: 'committees have suspended inquiries in process because a witness had been charged with criminal offences related to the subject matter of the inquiry, or have decided not to take evidence from a particular witness in the course of inquiry because the committee have been informed that the witness would also be a witness in impending criminal or civil proceedings.' As such, due to what Erskine May states and also the rulings delivered by the Speaker of the House on 25 November 2019, 26 November 2019 and 16 June 2020, the committee is being asked to, at this stage, pending the outcome of the proceedings that are presently sub judice, do not take the testimony of Fenech."

Mercieca clarified that the request is for Fenech’s testimony not to be taken at this stage.

14.33: Fenech’s lawyers highlight past rulings where the Speaker did not permit a debate in Parliament, and Carabott highlights recent rulings placing the burden on the witness to state directly if there are procedures in court directly tied with what is being discussed in the committee.

The committee sitting is suspended for all parties to consult previous rulings and the standing orders.

14.22: PAC Chairman Darren Carabott said that the Committee has its remits within the standing orders and has to follow guidelines. He said that the committee is looking into the contracts awarded by Enemalta to electrogas, questioning whether the lawyers are saying that this is the alleged motive.

Mercieca responded by saying that the lawyers aren’t the ones alleging, and pointed to a constitutional case against the Attorney General to identify where the alleged motive was referenced.

14.18: Before Fenech takes the oath, Fenech's lawyer Charles Mercieca said that Fenech is being charged in the criminal court and the alleged motive is the subject being discussed today. The lawyers argued that at this stage will ask the committee, given the stage of procedures, Fenech’s testimony be suspended pending the criminal proceedings.

14.17: Yorgen Fenech is being assisted by lawyers Charles Mercieca and Gianluca Caruana Curran.

14.14: The Public Accounts Committee session begins and Yorgen Fenech is called in to testify.


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