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Court dismisses PN case challenging State Advocate to recover Vital’s funds

Updated 13.10

A court has dismissed a PN case challenging the Attorney General to recover the defrauded funds in the now defunct hospital contract.

Judge Toni Abela said it would undermine democracy if Attorney General Christopher Soler acted on his own initiative to try to recover €400 million in funds defrauded through the deal.

The case was filed by opposition leader Bernard Grech and PN MP Adrian Delia last year.

PN’s case argued that, after the courts had declared the deal fraudulent, the Attorney General was obliged to take steps to recover the funds on his own, without waiting for instructions from the government.

In a strongly worded rebuttal, the state attorney accused Grech and Delia of trying to mislead the courts to score political points.

The suit followed the landmark ruling handed down in October that invalidated the Vitals agreement.

On Thursday, the court, presided over by Judge Toni Abela, dismissed all the opposition’s claims in the case.

He said that if the Attorney General acted on his initiative, he would undermine democracy and the rule of law because “every human being is susceptible to some hidden agenda”.

Grech: “PN will continue the pressure”

Reacting to the ruling outside court, Grech said Prime Minister Robert Abela had “abandoned the patients” and that the PN will continue to press the government to recover the funds.

“(The PN) did their utmost – as we felt obliged to do when everyone else had failed the Maltese people – to pressure the Attorney General, the Minister of Justice and the Chief of Police (to get the money back)…

“The Maltese were robbed of millions of euros, some of which were used for frameworks and bribes. These are all facts and the prime minister does not want to get these funds back,” the opposition leader said.

“The court decided today that the state attorney must follow the government’s instructions. This means that since Abela does not want to get the funds back and the state attorney has not done so on his own accord – the funds will only be taken back through a PN government.”

Grech added that the party will need to review the ruling in detail before deciding on next steps.

He told journalists to question whether Abela could not open a case to recover the money because he was “too weak or compromised”.

Robert Abela held a press conference in Castille after the verdict. Photo: Matthew Mirabelli

“Greece has perjured”: Abela

Reacting to the verdict during a press conference in Castile, Abela accused the opposition leader of “perjury”.

He said the case was “a scare tactic” aimed at stopping the government from doing its job.

Abela said the case was a personal attack on himself, former health minister Chris Fearne, members of the government and the civil service.

“(PN) attacked us and our families because they wanted to force the state attorney to sue us,” the prime minister said.

He argued that through the case, the PN wanted to scare civil servants from doing their jobs because they could be sued even if they acted in good faith.

Abela claimed that the trial was unprecedented: “There has never been an opposition leader – in the entire political history of the country – who has resorted to this tactic”.

Flanked by Justice Minister Jonathan Attard, Abela repeatedly claimed Grech had committed perjury.

“He committed perjury because a magistrates’ inquiry, two court judgments and the Auditor-General praised the actions taken by my administration. Despite this, the Leader of the Opposition said I was involved in criminal activity with Steward.

“It is clear that he committed perjury. The opposition leader committed a criminal act,” Abela added.

Grech, he said, had persisted with a “defamatory lie” under oath.

When asked if the Attorney General would charge Grech with perjury, Abela said he is not ruling anything out.

“I’m not ruling out some kind of action,” Abela said.

Attard, meanwhile, said the government was doing its utmost in international arbitration to recover the money the Maltese government believed was owed by Steward.

He said he could not say how much money the government wanted to recover because the details of the international arbitration were confidential.

“I assure everyone that the legal team led by the State Advocate, a local law firm, an international law firm and several experts appointed by the government are doing everything they can to recover as much as possible for the Maltese state,” he said.

Robert Abela outside court Thursday morning. Photo: Matthew Mirabelli

Grech challenges the Prime Minister to take action against allegations of perjury

Grech addressed the perjury charge during a press conference at PN headquarters on Thursday afternoon.

The PN leader challenged the Prime Minister to take the measures he deemed necessary.

“The chief of police is going your way. If you really believe I lied under oath, take action and ask him to investigate me.”

The verdict

Mr. Justice Abela read the judgment to a packed hall. Prime Minister Robert Abela, Justice Minister Jonathan Attard, Grech and Delia were all in the courtroom.

The court explained that although parliamentary debates referred to the Attorney General as “the last man standing”, this did not mean that he was legally bound to act on his own initiative.

If so, “we would be approaching dangerous territory”. That action would undermine democracy and the rule of law because “every human being is susceptible to some hidden agenda,” he said.

In its case, the opposition argued that the Attorney General should have acted to void the fraudulent deal and subsequently recover the funds. As the guardian of the public interest, the state attorney had to act, they argued.

But the state attorney countered that he would only act when the law called on him to do so.

The Court made an in-depth analysis of the constitutional office of the Maltese Attorney General and compared it with several foreign jurisdictions.

The basic question was whether the state attorney had a duty to act on his own initiative: Who would defend the state when public officials themselves acted against the state’s interests?

All things considered, the court found that the Attorney General did not appear to have carte blanche to act on his initiative.

While law professor Kevin Aquilina believed that the State Advocate was not subordinate to the government or any other authority, but only to the Constitution, the laws of Malta and his conscience, former Attorney General and ECJ judge Anthony Borg Barthet believed that if the State Advocate made the Faculty act as he saw fit ” we would turn democracy on its head”.

The court held that no one holding public office was free from judicial review, which ensured that official duties were carried out according to law. The Attorney General – as an autonomous and independent office – was regulated solely by the Constitution, and there were specific occasions when special laws empowered the Attorney General to act.

The opposition’s request for the court to order the attorney general to act was “impossible”.

“No one, including this court, can issue orders to the attorney general. To do so would be to violate the constitution of the court itself.”

The court added that although an appeals court had ruled last year that it was the opposition that had acted to protect national interests, at no point did it point the finger at the attorney general.

Nothing was said about that in the verdict and that was the binding part, Judge Abela continued.

Attorney James D’Agostino represented the State’s Attorney. Attorneys Edward Debono and Nicholas Debono assisted the applicants. Lawyers Chris Cilia, Ian Borg and Maurizio Cordina assisted the government as interveners in the case.

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