Joseph Muscat’s lawyers cried foul in court today, after rule of law NGO Repubblika refused Muscat’s request to instruct its lawyer to exhibit copies of two documents, one of them being Repubblika’s 2019 application to request the commencement of the inquiry in genre into the Vitals Global Healthcare hospitals deal.
The deal between the Government and Vitals’ successors, Steward Healthcare, was struck down by a court in February, the judge in that case decrying the “fraudulent and, possibly, criminal behaviour by Steward…as well as Vitals…and its investors.” An appeal to that decision was subsequently also rejected in October.
Notary Robert Aquilina, the president of NGO Repubblika continued his testimony before madam justice Doreen Clarke in the case filed by the disgraced former Prime Minister against the State Advocate in which he is calling on the court to declare that the provision of the law under which the inquiry had been opened, breached Muscat’s right to a fair hearing.
Muscat’s lawyers had asked Aquilina to exhibit a copy of two applications filed in 2019 before the inquiring magistrate in 2019.
On the witness stand this morning Aquilina refused to do so, telling the court that the Repubblika committee had discussed the request and had decided not to grant Muscat’s request. Muscat, who was following proceedings in the courtroom was seen to grin at that point.
“The request was not for me to exhibit the documents but to instruct my lawyer to do so and I am informing you that the committee which I represent says it will not,” Aquilina explained.
Gouder asked the judge to intervene in the matter “as he could not safeguard the interests of his client.”
“A court of Constitutional jurisdiction shouldn’t allow itself to be dictated to by an NGO committee,” Lawyer Vince Galea, who is also appearing for Muscat, protested. “Otherwise, who is the court?”
Lawyer Isaac Zammit, representing the State Advocate replied that Muscat had already made a similar request to the Criminal Court, which had been rejected and another to the inquiring Magistrate. The Code of Organisation and Civil Procedure precluded him from doing so, said the lawyer, accusing Muscat of “trying to go through the window after finding the door closed.”
Galea insisted that those rules were secondary when dealing with a breach of fundamental rights and would stultify the whole point of Constitutional proceedings. “The court cannot decide in the dark,” he said. “We are requesting a remedy under the Constitution, which is the highest law in the land. So, if there is an article in the COCP preventing the court from examining the issue… what are we here for?”
Galea pointed out that the law imposed the obligation on him to bring the best evidence. “Isn’t Aquilina the best placed person to exhibit the documents?” he asked.
Lawyer James D’Agostino, representing the Office of the State Advocate, replied that in the cases quoted by Galea it had also been held that although the Constitutional Court had great powers, it still had to respect the ordinary law. “The Constitutional Court is not there to undermine the law.”
Muscat’s lawyer argued that there were other safeguards available for the court to safeguard the security of the document, such as keeping it under seal in chambers.
Hinting at the possibility of taking the case before the European Court of Human Rights, Galea suggested that the European court “didn’t always uphold judgments handed down by the Constitutional Court.”
Gouder insisted that the documents requested by the witness be exhibited, finding objection from D’Agostino on the grounds that the registrar had not been authorised to do so by the inquiring magistrate
“If the registrar comes now and the inquiring magistrate then rejects our request…with all due respect the magistrate is basically deciding this case.” Galea submitted.
The judge announced that it would decide on this request after the registrar testifies.
The assistant registrar of the Criminal Court took the stand and read out the request filed by Muscat, which was to exhibit the judicial acts or court applications filed by Repubblika in 2019 for the in genre in connection with the inquiring into the VGH concession carried out by magistrate Gabriella Vella. Muscat had reserved the right to take further action if the request was refused, saying that it was breaching his human rights.
In a decree on October 5, the magistrate issued a decree on Muscat’s request, rejecting it . “As the application dealt with third party suspects, the request is being denied,” the registrar read out today.
Galea asked the witness what or who the suspected third parties were. The registrar wouldn’t have that information, said the witness.
“Neither do we and this is why we filed Constitutional proceedings!” Galea exclaimed.
The judge pointed out that the magistrate’s decree only binds the registrar.
“This is an unjust situation,” protested the lawyer. “COCP closed the door. The inquiring Magistrate also closed the door, so I am in a straitjacket. What am I to do?”
The judge left the courtroom to compose a decree on the matter, returning a few minutes later and dictated its decree. “The court after seeing that the witness Dr. Robert Aquilina is being asked to authorise the lawyer of the organisation which he is representing to exhibit the application which are the subjects of this decree, which authorisation doesn’t appear to have been given, and after also seeing that this court is precluded from ordering any person to release their lawyer from the obligation of professional secrecy or from releasing a lawyer from professional secrecy itself, rejects the request.”
Gouder said in reaction that they would be suspending Aquilina’s testimony and would reserve the testimony of lawyer Jason Azzopardi, who had also been summoned to testify today, for a later stage of the proceedings.
The Commissioner of Police, Angelo Gafá, took the witness stand next.
Gouder asked the witness about the role played by the police when assisting magisterial inquiries.
“It emerges from the law. The police investigations are in synergy and under the direction of the inquiring magistrate,” Gafá replied. The police gathered evidence, carried out searches in properties and seized documents under the applicable warrants.
Gouder asked what sort of direction was given by inquiring magistrates, in particular the inquiry into the hospitals deal with Vitals Global Healthcare.
That investigation had already been underway at the time of Gafá’s appointment to the top job in the police force, he said.
Asked whether the instructions had been received verbally or in writing, the Commissioner replied that he could not answer that question without disclosing how the inquiry is being carried out.
After the question was rephrased in more general terms, Gafá said that “meetings are held [with the inquiring magistrate]. Directions are given verbally but also sometimes in writing, such as search warrants and decrees for applications filed in the inquiries.”
Gouder asked the Commissioner about a visit by Opposition leader Bernard Grech and his predecessor, Adrian Delia, to the police headquarters in October.
“The meeting hadn’t been scheduled,” Gafá said. “I received a phone call in the morning that the Leader of the Opposition wanted to meet me.” He had subsequently met with Grech, in the presence of Delia and PN MP Karol Aqulina, he said.
“During the course of that meeting, the Leader of the Opposition had continuously tried to put words into my mouth. I told him that I was not a politician but a member of the executive and not to engage in political discussions with me. He was insisting that no police investigation was happening. I replied that the police were investigating through the magisterial inquiry.”
Gouder pressed him on the phrase “through the inquiry.” “Why not independently from the inquiry?” he asked.
The judge reminded the witness that the inquiry is confidential and if his reply would reveal it, he was not to answer. Galea objected, arguing that this shouldn’t be up to the witness to decide, but the court said that Gafá was correct.
Gouder confronted the Commissioner with reports stating that he had told the press that he did not intend to open a police investigation until the magisterial inquiry was complete.
Gafá denied having said this, telling the court that he always said that the two worked in tandem.
Gouder pointed to an official reply by the police’s media relations section which said that the allegations related to this case had been made to the investigating magistrate and that the police had then followed the magistrate’s instructions. “Is this always the procedure adopted in such cases?”
“There is no particular practice but since I became Commissioner we have always done so,” replied Gafá.
The lawyer asked about the police report filed by Repubblika about Konrad Mizzi, Edward Scicluna, Chris Cardona and Ivan Vassallo, with regards to their links to the Vitals scandal.
“When you received this report, did you follow the same procedure? Waiting for the direction of the court?”
Gafá confirmed that he had received a report filed by Adrian Delia and Bernard Grech on 8 May 2023. “That same day I had instructed Superintendent James Grech to take note and to bring this to the attention of the inquiring magistrate.”
Gouder asked what the report was about. “It refers to the decision by the court of first instance…in which we were instructed to take action against a list of people,” Gafá replied, adding that around 30 people had been mentioned in all.
The witness did not name Mizzi, Scicluna, Cardona and Vassallo as being mentioned on this list, saying that he’d need to check it first, adding “but I will say that [police] investigations don’t end with the inquiry.”
“I didn’t wait for this report to be filed. After the first court decision I had called a meeting with the inquiring magistrate where we discussed the way forward,” Gafá said.
“Is this normal?” Gouder asked. “I met the inquiring magistrate several times, like I did several other magistrates,” replied the Commissioner.
The case continues in January.