The Malta Independent 12 July 2024, Friday
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Updated: Judge turns down PN request to have State Advocate open case to recoup hospitals’ €400m

Thursday, 11 July 2024, 10:19 Last update: about 22 hours ago

A judge has turned down a request by the Nationalist Party to have the State Advocate open a case to recoup €400 million which were paid by the government to the operators of public hospitals in a deal which was rescinded by the courts last year.

In his judgment, Mr Justice Toni Abela ruled that if the court had to order the State Advocate to do something - in this case open a case to get the funds back - then it would be breaching the constitution. He ruled it was not the court’s competence to tell the State Advocate what to do.

The Nationalist Party had filed the lawsuit with the aim of recovering public money paid to Vitals Global Healthcare, which was later substituted by Steward Healthcare, as a result of a 2015 deal, which handed over the running of St Luke's, Karin Grech and Gozo General hospitals to the company.

The deal was subsequently annulled by a court on the basis of fraud last year, the judgement later being confirmed on appeal. The Court of Appeal suggested there had been collusion.

The case before Mr. Justice Abela was filed last year by Opposition leader Bernard Grech and Nationalist MP Delia, who asked the court to order the State Advocate to file proceedings against "present and past government officials involved in the deal".

In his ruling, Mr Justice Abela said that although parliamentary debates referred to the State Advocate as “the last man standing”, it did not mean he was legally bound to act on his own initiative. 

“We would be approaching dangerous territory if that were the case”, as that action would undermine democracy and the rule of law since “every human being is susceptible to some hidden agenda”. 

The Opposition argued that the State Advocate, as guardian of the public interest, should have acted to annul the fraudulent deal and subsequently recover the funds.

For his part, the State Advocate argued that he could act only when the law called upon him to do so.

All things considered, the court noted that the State Advocate did not appear to have carte blanche to act upon his initiative. 

The Court ruled that no one holding public office was free of judicial discretion. The State Advocate was regulated by the Constitution alone, and there were specific instances when particular laws granted the State Advocate the power to act. 

“No one, including this court, can issue orders to the State Advocate. If it were to do so the court itself would be violating the Constitution,” the judge said.

Lawyer James D’Agostino represented the State Advocate. 

Lawyers Edward Debono and Nicholas Debono assisted the applicants.

Lawyers Chris Cilia, Ian Borg and Maurizio Cordina assisted the government as intervenors in the case. 

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