Updated | Constitutional court finds for PN in party financing case

The Nationalist Party has won a constitutional case against the Electoral Commission and the Attorney General over a decision to probe the party’s financing.   

Three judges of the constitutional court overturned the first judgment and declared that the law that allowed the Electoral Commission to act as investigator, prosecutor and judge breached the Constitution and Article 6 of the European Convention.

The case concerns the law regulating political party financing, which empowers the Electoral Commission to investigate wrongdoing and mete out punishment accordingly. The judgment means that the law will have to be changed to reflect the court's ruling. The judges ordered that a copy of the sentence be passed on to the Speaker of the House.

The court was presided by Chief Justice Joseph Azzopardi, Judge Giannino Caruana Demajo and Judge Noel Cuschieri. 

The appeals court said the process itself is a breach of the right to a fair hearing that could lead to the imposition of sanctions of a penal nature by a body, which is not a court. The judges said the Electoral Commission’s power to summon party officials for information exposed the party to accusations, judgements and other sanctions without the safeguard of a right to a fair hearing.

In March 2017, the PN was being accused of breaching the law, when hotelier Silvio Debono - the owner of the db Group – claimed that he had been asked to pay the salaries of two PN executives, through donations paid through Media.Link, the PN’s media company.

The db Group had claimed that it had been asked by the PN to finance the wages of top party officials, something Simon Busuttil denied

The PN denied the claim, insisting the only payment it received from Debono was in relation to a commercial contract between its media arm and the company. However, the PN never produced the commercial invoices to back up its claim.

This prompted the Electoral Commission to appoint an investigative board to probe all the cases of alleged breaches of the law that were brought to its attention.

The PN had however argued that the commission could not act as judge, jury and executioner, with then Opposition leader Simon Busuttil arguing that past court sentences had shown that the same entity could not be both investigator and judge.

In April, the First Hall of the Civil Court in its Constitutional jurisdiction had refuted these arguments. “The Electoral Commission has the power to investigate, pass judgment, and penalise. This notwithstanding, the court also considers that as the regulator, the Electoral Commission is not a prosecutor because its main purpose is to ensure that rules are observed,” read the April judgment.

The PN appealed and in today’s judgment, the constitutional court ruled that the Electoral Commission, after having investigated a complaint should not have the power to judge and impose punishment, as it is not a court under the Constitution.

The process in itself under the party financing law lacked the guarantees of independence and impartiality as required by the Constitution, the court said.

In today’s 119-page judgment, the constitutional court ruled that the setting up of a subcommittee by the Electoral Commission to probe political parties also offered insufficient constitutional safeguards to the right to a fair hearing.

The court rejected a cross-appeal by the Attorney General, declaring him liable for the costs of the case before the First Hall, Civil Court as well as part of the costs of the appeal.

Another cross-appeal by the Electoral Commission was partly upheld, exonerating it from suffering costs.

The PN was represented by lawyer Jason Azzopardi, who immediately took to Twitter to mock Justice Minister Owen Bonnici, who had defended the party financing law in the face of the PN’s court action.

Azzopardi told MaltaToday the Justice Minister, who piloted the law, had ignored the PN's warnings during committee stage in Parliament when it was pointed out that the Electoral Commission could not act as investigator, judge and jury. "This is a major victory," Azzopardi said.

Government to work on amendments

Reacting to the court's decision, the Justice ministry said the decision came after the PN was found to have broken the provisions of the Financing of Political Parties Act by "allegedly accepting abusive donations". The decision, it said, was the result of an appeal tabled by the Nationalist Party after the first court denied the PN's request. 

"The government notes that the Constitutional Court found that the fact that the Electoral Commission had the function to investigate does not impinge on any right to a fair hearing," the ministry said, adding that court had nonetheless said that the commission should not have the right to pass judgment because it is not the court. 

It said the government would be working on amendments to the law.

Moreover, it also noted that the court had noted that the commission's investigation was in its early stages, with the commission not having yet accused anyone of wrong doing.