[WATCH] Government trying to violate separation of powers, PN claims in case for return of Vitals millions

The PN has accused the Government of attempting to impinge on the separation of powers in its objections to requests by Cabinet and the Government to join the PN's lawsuit to recover the huge sums of taxpayer funds paid to Vitals Global Healthcare and Steward Healthcare in the fraudulent hospitals privatisation deal. 

Mr. Justice Giovanni Grixti heard submissions by both sides on the government’s request to intervene in the case filed by Adrian Delia and the PN to recover the €400 million paid out to Vitals Global Healthcare and Steward Healthcare in the hospitals deal that was subsequently struck down by a court as fraudulent.

First to make his arguments on Monday’s sitting was lawyer Ian Borg, assisting the Government, together with lawyers Maurizio Cordina and Chris Cilia. He said that plaintiffs Bernard Grech and Adrian Delia “did not appear to be aware of the consequences of their request,” describing the arguments as “perverse and incomprehensible.“

“They are aware of the serious implications [of this case] and so are trying to give it a million different outfits to hide this objective.” Borg argued that the government had “not just an interest but an obligation to intervene in these proceedings,” arguing that it was dangerous for the Leader of the Opposition to ask the State Advocate to “put on the government’s hat and take this decision itself.”

What Grech had not managed to obtain democratically, he was attempting to obtain through these proceedings, accused the government’s lawyer, who also denied any muzzling of the State Advocate by the government. “I am astounded at this argument, when talking of undue pressure, we are talking of a series of actions attempting to force the State Advocate, the police and others to take action.” 

Borg argued that the State Advocate was the legal consultant to government and did not have the right to file cases independently of his client’s instructions, except in the handful of situations stipulated in the law.

He insisted that the government did have an interest in these proceedings, pointing to the international arbitration proceedings it had filed. The government not only defended itself but filed a counterclaim, argued the lawyer.

Lawyer Julian Farrugia, representing the State Advocate, endorsed Borg’s submissions.

“This case is not only about what the State Advocate can or cannot do…to some extent we will be discussing the powers of the executive and the State Advocate, how this issue has been dealt with and will be dealt with in future, as well as other issues on the relationship between them.” All this meant that the government had a clear and real juridical interest in the case, argued the lawyer.

Government ‘trying to alter the balance of the separation of powers’ 

The government’s objections were put into context by lawyer Edward Debono, appearing for Grech and Delia together with lawyer Nicholas Debono. He submitted that the truth was the opposite of what had just been said, and that the government was attempting to impinge on the separation of powers, which had to be kept in balance by the courts.

“The State Advocate and the government’s lawyer are trying to muzzle and control the State Advocate's powers to act, by not acting.” Malta’s courts had already established that the highest functionaries of Government had acted with criminal intent and in collusion with Vitals and Steward, Debono said. 

“It is true that the State Advocate is the government’s lawyer and must advise it on legal matters, but the Constitution goes beyond this and says that the State Advocate must act and carry out duties laid down in the Constitution. He has the right to act in his individual capacity when he feels he must act to protect the state against its own functionaries who act fraudulently and is not subject to the direction or authority of anyone else, government or Cabinet,” argued the lawyer. 

“Here we are talking about present and past members of the Cabinet who acted in this way,” Debono went on, stressing the obvious risks involved in allowing the Government and Cabinet to control who can take action against individuals from among them who had been identified as lawbreakers.

The Government and Cabinet had an interest in the outcome of the case, but not a juridical interest, argued the lawyer, citing a list of judgments that established this principle.

“In this case it is not the government or cabinet who are indicated [as responsible], but members of it past and present who acted with criminal intent and in collusion with Vitals and Steward, to the detriment of the State. ” 

What is being debated here is the interference by the Government and the Executive in the actions of the State Advocate.

“Nobody is trying to usurp the powers of the executive,” Debono said. Elections give governments a mandate, but that the Government and its Executive branch attempt to usurp the powers of the State Advocate, to the detriment of the same State…shows that the separation of powers is not functioning as it should.”

The State Advocate was there to defend the State and should not be held back by the Prime Minister and Cabinet from taking action against fraudsters, argued the lawyer, describing the Government’s request to intervene in this case as an attempt to muzzle the State Advocate, with the excuse of international arbitration proceedings.. 

Debono expressed surprise at the fact that the Government had submitted the issue to international arbitration, “when the highest court of the land had already dissolved the contract.”

“When the government received the notice of international arbitration, after the court’s judgement dissolving the contract, they should have said ‘sorry but that contract is no more’ or at least await the conclusion of local appeals,” argued the lawyer.

“We are not saying the government should prosecute those abroad who acted in bad faith, but at least the Maltese individuals who were co-participants in the fraud with Stewards, who is apparently now insolvent, should be called to settle their debts. “

The judge, after hearing submissions, adjourned to case to next Monday for a decree on the Government’s and Cabinet’s request to intervene in the case.