Enemalta oil scandal | Speaker’s ruling subject to Court’s scrutiny

The judge hearing the Constitutional case filed by former Enemalta chairman and former President of the Malta Chamber of Commerce Tancred Tabone against the Speaker of the House of Representatives and chairperson of the Public Accounts Committee has decreed that rulings by the Speaker of the House are subject to court scrutiny.

Madame Justice Anna Felice, presiding the First Hall of the Civil Court in its Constitutional jurisdiction was asked to declare the request that the applicant testify before the Public Accounts Committee, as well as the Speaker's ruling on the matter breached his right to a fair hearing. He also asked the court to declare the same with regards to the official Guide for Witnesses appearing before the PAC.

Tabone had been asked in December 2013 to appear before the PAC to be grilled on the Auditor General's report analysing the effectiveness of Enemalta Corporation's fuel procurement. He was also given a copy of the Guide for Witnesses appearing before the PAC of the House of Representatives, published in 2011. Paragraph 4 of that guide listed the consequences should a person summoned to testify before the PAC refuse to answer questions without a legally valid excuse.

In February 2013, Tabone had been arraigned in court under arrest and charged with corruption, fraud and money laundering in connection with Enemalta's fuel procurement – the same merits of the PAC proceedings. The criminal case is yet to be decided.

Tabone had informed the PAC of this situation several times and invoked his right to silence. In February 2014, the Speaker of the House had expressly ruled that he was expected to testify before the committee and answer any questions he was asked. If the witness felt a question to be potentially incriminating, he could request to be made exempt from answering it, but this was ultimately up to the chairperson to accept or turn down the request.

Tabone had written to the PAC chairman, pointing out that parliamentary procedure “bible”, Erskine May: Parliamentary Practice, said that Committees had suspended inquiries in cases where a witness had been charged with criminal offences related to the subject-matter of the inquiry.

Amongst the counter-arguments brought by the Speaker of the House, Angelo Farrugia, was the assertion that the decisions of the Speaker were not subject to scrutiny by the courts and neither were its guidelines. The court lacked the jurisdiction to invalidate or declare null a decision by the Speaker because the regulation of procedure in the House of Representatives was not subject to review, argued Farruga, adding that any interference in this procedure would amount to a breach of privilege.

The PAC acts in the national interest, it said, assuring that there was no intention to force anyone to answer incriminating questions. The Committee's remit was limited to overseeing public accounts and seeing that they are kept in line with the law.

In a procedural ruling, the court rejected the Speakers argument over whether the court could scrutinise the speaker's decisions. “The Constitution gives Parliament the right to regulate its own procedure, but this right is not absolute as the defendants are expecting. It is a right given to Parliament by the Constitution and is limited by the same Constitution.”

Citing Mr Justice Emeritus Profs John J. Cremona, the court held that “unlike the Westminster Parliament, the Maltese Parliament is not supreme, since it is subject to the Constitution, which is in fact suprema lex. The Parliament established at independence both owes its existence to, and has its own powers limited by, the Constitution, which is thus superior by its very nature. Nothing, therefore, must be repugnant to the ultimate domestic legal principle, the local grundnorm.”

Ordering the case to continue, the court pointed to several previous Constitutional judgements, saying it “could not see how the Constitutional court's oversight, within the framework of a complaint of a violation of a fundamental right protected by the same Constitution, could be validly seen as an obstacle to democracy.”