Malta’s electoral watchdog is refusing to investigate the political parties until they agree to fix the Party Financing Act.
Government officials are quick to point out that it was the Labour administration which introduced party financing rules in Malta.
But when these rules were enforced against the Opposition over large DB Group donations disguised as Net TV advertising, the Nationalist Party contested the fines by filing a Constitutional case, which it won.
The Constitutional Court declared that by acting as investigator, prosecutor and judge, the Electoral Commission breaches the Constitution and the European Convention, including the right to a fair hearing.
Now, the Electoral Commission informed independent candidate Arnold Cassola that until there is a change to the law, it is “impossible” for the Commission to investigate such cases under the Party Financing Act, in particular the handing down of any fines.
The Commission was responding to Cassola’s demand for an investigation into the possibility that the Panama company Egrant was created as a vehicle to raise funds for the Labour Party, since former OPM Chief of Staff Keith Schembri recently wrote the word on Facebook as “E-Grant”.
In October 2018, the government said it would propose amendments to fix the law. But this process has not reached any form of resolution yet.
Last year the government proposed Bill 166 to amend the Constitution, but last February that was superseded by Bill 198 to amend the Interpretations Act.
A PN source said the proposed amendments would empower public bodies to administer large fines and this was problematic since so many of these bodies are controlled by persons of trust appointed by the government.
Government sources said Malta was awaiting an opinion from the Venice Commission on the matter and there are also other cases on related issues pending the Constitutional Court’s judgments. In fact, there are several bodies that have been accused of acting as investigator, prosecutor and judge, including the Medical Council which faced a Constitutional challenge by Nationalist MP and doctor Stephen Spiteri when he was probed for selling fake medical certificates.
Asked for comment, Justice Minister Edward Zammit Lewis said: “Government always had the intention to clarify the legal ambiguity that may exist. In this vein government presented two bills in Parliament, although some MPs had other intentions. Government wants effectiveness of action for all the important public authorities in the fight against organised crime and money laundering. At the moment, government is engaged in a structured dialogue with the Venice Commission to give us further direction.”
“Both bills are still before Parliament. I am proposing amendments which make sense in the modern world while safeguarding due process, ensuring the effectiveness of action of our public authorities , such as MGA, MFSA, FIAU etc. This is the best practice in the majority of EU member states and signatories of the European Convention on Fundamental Human Rights,” he added.
It remains to be seen what advice the Venice Commission will give on this topic but it could have several ramifications, not least the regulation of party financing ahead of a general election campaign.
One thing that could come under scrutiny is that fact that the Electoral Commission, which is meant to be a watchdog on the political parties, is being appointed by the two political parties themselves.
Last year, the Electoral Commission allowed the political parties to delay publishing their accounts on the basis of the Covid-19 outbreak. The PN recently submitted its accounts but the Labour Party is arguing that it cannot do so until a conference is convened to approve the accounts, something it can only do when restrictions on public gatherings are relaxed.
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