A Constitutional Court has rejected a case filed by former government official Keith Schembri, who claimed that his fundamental rights were breached while he was providing evidence before the Public Accounts Committee (PAC).

The case arose from Schembri's testimony before the PAC in March and April 2023, during an inquiry concerning an Auditor General report on contracts awarded to Electrogas Malta Limited by Enemalta.

Schembri had been summoned to testify before the committee and was questioned under oath for almost four hours. During the proceedings, three Opposition members of the PAC, Darren Carabott, David Agius and Graham Bencini, made a report to the police concerning conflicting sworn versions given by Schembri and two other witnesses.

Schembri subsequently argued that the three MPs should not have continued participating in the committee while also having reported the matter to the police.

He claimed that their actions created an objective appearance of bias and a conflict of interest, essentially, that nobody should participate in deciding a matter in which they have a conflicting interest.

Schembri also challenged the way his request to stop testifying was handled. His second main complaint concerned his attempt to have his testimony suspended.

He asked for the issue to be referred to the Speaker of the House for a ruling, arguing that his testimony should stop while the police investigation arising from the report made by the three MPs was pending.

However, PAC chairman Darren Carabott told him that, under Standing Order 62, a witness who was not an MP could not personally raise a point of order before the Speaker.

Schembri argued that this interpretation left him without an effective procedural safeguard. He maintained that he had been legally compelled to appear before the PAC, take an oath and answer questions, and could potentially face consequences if he refused to cooperate. Therefore, he argued, he should also have access to a mechanism through which he could seek protection when he believed his fundamental rights were at risk.

Court stated that PAC witnesses are protected against self-incrimination

The court importantly noted that witnesses appearing before the committee are protected against being forced to answer questions which could incriminate them.

However, the court drew an important distinction. A witness does not have an automatic right to remain completely silent in response to every question simply because there may be a possibility of criminal proceedings.

Instead, the protection applies to questions which could genuinely incriminate the witness. The court said Schembri could have invoked this protection without needing the Speaker's permission.

The court ultimately found that Schembri had not shown that he was actually forced to answer an incriminating question, nor that he had been sanctioned for refusing to testify.

There was also no evidence that he had become a suspect or accused in criminal proceedings arising from the police report.

Standing Order 62 did not give Schembri a direct right to demand a Speaker's ruling

The court agreed with the interpretation that Standing Order 62 does not itself give a non-MP witness the right to personally raise a formal point of order or demand a ruling from the Speaker.

Therefore, while Schembri did not have the specific procedural right he claimed, the court found that this did not deprive him of his underlying legal protection.

The Speaker had eventually ordered the PAC to stop questioning Schembri.

After Schembri announced that he would not answer further questions and constitutional proceedings were launched, the Speaker subsequently directed the PAC to suspend his questioning pending the outcome of the constitutional case.

The court said this meant Schembri was ultimately not forced to answer further questions and was not subjected to a coercive order or sanction.

The court therefore found that no substantive fundamental right had ultimately been breached.

The three MPS alleged bias

Schembri had argued that Carabott, Agius and Bencini should have removed themselves from the PAC after making the police report.

The court considered the question of objective impartiality, but ultimately did not find a violation of Schembri's Article 39 fair-hearing rights. The court held that the PAC was carrying out an investigative function, rather than acting as a court determining Schembri's guilt or civil rights.

The court's final decision

The court finally rejected Schembri's constitutional claims. It found that the alleged breach of his right to a fair hearing under Article 39 of the Constitution and Article 6 of the European Convention on Human Rights had not been established.

It also rejected his request for a declaration that Standing Order 62 gave him, as a non-MP witness, the right to personally raise a formal point of order or demand a ruling from the Speaker.

In its ruling, the court officially discharged the State Advocate from the lawsuit after determining the office had no direct involvement or authority over internal parliamentary procedures.

However, the judgement does not say that witnesses before the PAC have no protection.

The court expressly confirmed that witnesses retain substantive protection against self-incrimination and can make representations concerning their rights, even though Standing Order 62 does not give them a direct right to demand a Speaker's ruling.

The court also rejected Schembri's request for an order suspending his testimony until the conclusion of the alleged criminal investigation, finding that no general right to such a suspension had been established.