Joseph Muscat's 'hasty' constitutional case on VGH inquiry leaks puts him in a legal hole, State Advocate tells court

The haste with which disgraced former Prime Minister Joseph Muscat resorted to constitutional proceedings, to claim a breach of his right to a fair hearing during the ongoing magisterial inquiry into the Vitals hospitals deal, has placed him in a legal hole of his own making, a court has been told today.

Madam Justice Doreen Clarke heard both parties’ submissions as Muscat’s case against the State Advocate resumed on Tuesday. 

The court was examining Muscat's request to be allowed to appeal its earlier decree, prohibiting Repubblika's Robert Aquilina from instructing his lawyer to table a copy of the application that had triggered the Vitals inquiry.

Lawyer Vince Galea, representing Muscat together with lawyer Charlon Gouder, repeatedly made the argument that his client was in an impossible position.

There was no issue of professional secrecy in play here, he said. “If a lawyer exhibits an unsigned copy of an application in court and the other party asks for a signed one for correctness sake - what secret is there?”

Muscat is arguing that when Repubblika filed the request for the inquiry, his name did not feature in the original application. “To us this is a central piece of evidence, but that piece of evidence has not been exhibited to date,” Galea said . The objection had to be raised at this stage, before the court ruled on Repubblika’s request, because otherwise he would fall foul of the “best evidence” rule.

The lawyer confronted the court with Aquilina’s statement that in 2019 the presiding judge, who at the time was a magistrate, had received Repubblika’s application and issued the subsequent decree on the inquiry. Galea asked the court to declare whether this was the case, but the judge declined, saying that at no point did she feel any declarations were needed.

He asked the court again, explaining that while it was not a pleasant position for a lawyer to be in, “the plaintiff was now in a situation where he is trying to exhibit evidence before the court, where the inquiring magistrate knows its contents, Repubblika knows its contents, this court - if what the witness claimed is correct, and this is why I am asking the court to declare one way or the other - knows the evidence, and yet I cannot use it.”

Galea said the situation was “quite anomalous” and had wider ramifications in Muscat’s case because the judge already knew the contents of the evidence which the plaintiff is prohibited from exhibiting. “Even if an appeal is filed, lost and then sent back here by the Constitutional Court, I will still need to ask for the application and decree again. This problem will recur.”

If the State Advocate could declare that Muscat’s name was not mentioned in the initial application filed by Repubblika, he would withdraw the application, Galea suggested.

But, as pointed out by D’Agostino, the State Advocate could not make such a declaration, as it would “imply that he knew something that he should not know and expose himself to prosecution”.

Muscat’s own haste created this problem, State Advocate says

Replying to the plaintiff’s submissions, State Advocate lawyer James D’Agostino said that Muscat had been granted the right to disclosure of the evidence against him.

“On 25 May, a decree was issued, allowing the plaintiff [Muscat] to receive disclosure of every act of the inquiry where his name appeared before his testimony. This was his right and the magistrate conceded it. Less than a month later, this case was filed. Six months after that, we are in a situation rightly described as ‘somewhat anomalous,’ as he wants to exhibit evidence which he cannot.”

“But nobody forced, controlled or told the plaintiff to file his case at the moment in time that he did. Right after the police raided his home, he said that he had no faith in the inquiring magistrate. There was nothing to stop him from filing this case at a later stage [after the inquiry is finished]. His own haste created problems for him.”

D’Agostino reminded the court that this case had been filed by Muscat in an attempt to make the complainant who had requested the inquiry [Robert Aquilina from the NGO Repubblika] testify about the documents apparently leaked from the inquiry, after a number of other, unsuccessful, attempts through other avenues, he said.

“Our worry is that the best evidence which the plaintiff is trying to exhibit… will be covered by the secrecy of the magisterial inquiry,” Galea said. “Whichever way we look at it, we will end up in the same place: is this document covered by confidentiality? Can it be exhibited? If it is exhibited, the court must see what position it will take in regard to this evidence…Because we are talking about the best possible evidence, in the circumstances, the court is therefore free to use what is not the best evidence.”

The inquiring magistrate’s refusal to exhibit the document on the grounds that it mentioned third parties as suspects, implied that Muscat’s name was not among them, added the lawyer. “Muscat is in the position he is, solely because of his haste.”

D’Agostino added that the State Advocate’s position on the matter and arguments would remain the same should any appeal or rehearings be ordered.

He referred to the outcome of the Constitutional case filed by Yorgen Fenech on similar merits as an indication of how such requests are dealt with. “We know what the position will be.” 

He also questioned the point of Muscat filing an appeal should his request be rejected. “If the Constitutional outcome is already clear, is it not a waste of time to go there, if we know what the decision will probably be?” 

On Galea’s request that the judge declare any involvement in the magisterial inquiry, D’Agostino told the judge that if she had, in fact, been involved in it at some stage, she is still bound by its confidentiality after being elevated to judge and could expose herself to legal repercussions by doing what the plaintiff was asking her to do.

“Muscat has other options available, disclosure, which he hasn’t used till now, he can wait till the inquiry is concluded and filed and then ask the AG for a copy. He is not cornered, he has other options.”

In his rejoinder, D’Agostino reminded the court that Muscat had filed a note together with a copy of the same application he is requesting the authentication of, which was later expunged from the acts. “So they, too had the document in their possession and already know what its contents are.”

Referring to Aquilina’s cross-examination, where the witness had named the principal suspects initially indicated by the inquiry: Konrad Mizzi, Chris Cardona, Edward Scicluna, Ivan Vassallo, and had not mentioned Muscat. “Later still, he had also said that the list of principal suspects remained the same. So this shows who were indicated in the initial application, which is what the plaintiff wants to know.”

Galea agreed, but pointed out that the term “principal suspects” implied the existence of secondary suspects. “So what did the inquiring magistrate order on November 6? I want the inquiry to be exhibited, an expunged document is worthless.”

The court adjourned the case to January for a ruling on this issue.