While Malta was discussing the blow its financial services industry will receive as a result of grey-listing, democracy was suffering another blow in Parliament this week.
Lawyer Giannella de Marco refused to allow her client, Electrogas shareholder Paul Apap Bologna, to answer any questions by Opposition MPs Beppe Fenech Adami, Karol Aquilina and Ryan Callus as they tried to continue grilling him about the controversial power station project.
Her logic was that he felt their line of questioning made him feel as though they were treating him as a suspect in a crime and that he therefore wanted to exercise his right to silence.
It means de Marco kept true to her word at the end of the previous sitting that she wasn’t going to allow Apap Bologna to answer any of Aquilina’s questions, no matter what they may be, because they weren’t intended to discover the truth but to gain political mileage at Apap Bologna’s expense.
“I won’t allow anyone to take political mileage at your expense,” she declared back then.
This might seem like a minor regular political tit-for-tat in the grand scheme of things, with the added twist that de Marco’s brother is actually a PN MP, but it is actually one that cuts at the heart of democracy.
This is because a key democratic principle – the right of everyone to a legal defence has been twisted in a manner that subverts another key principle – the right of MPs to speak freely and raise questions on behalf of the public.
What de Marco is pretending not to understand is that Parliament’s public accounts committee isn’t a court of law intended to establish guilt or lack thereof but a place where the expenditure of public funds is held to account.
In fact, witnesses have a set of guidelines informing them of their rights and obligations, which are intentionally different from court proceedings.
These guidelines entitle witnesses to legal representation during sittings but MPs’ questions must be aired to the witness and answered by the witness alone, with their lawyer only allowed to respond on behalf of the client on legal points that may arise.
Witnesses must answer all questions, barring those that risk incriminating themselves, a rule that was recently upheld by Speaker Anġlu Farrugia after Nexia BT’s Brian Tonna refused to answer a single question at his PAC hearing.
If a witness or their lawyer objects to an MP’s question, they must answer it anyway unless another MP steps up for them and refers the question to the Speaker for a decision.
And if witnesses refuse to answer questions besides those that risk self-incrimination, the case can be referred to the Committee of Privileges, chaired by the Speaker, to rule on whether they’re guilty of contempt of the House.
De Marco did bring up a legal point during last week’s sitting, when she objected to Aquilina’s questions on the grounds that they were “politically loaded”.
To back up her argument, she referred to a recent comment passed by magistrate Rachel Montebello when she threw out a complaint by Daphne Caruana Galizia murder suspect Yorgen Fenech that his human rights were breached when PN MP and PAC chairman Beppe Fenech Adami said during a recent sitting that the journalist was killed because of corruption in the Electrogas project.
One of Fenech’s lawyers who filed the human rights breach was Gianluca Caruana Curran, who happens to be Giannella de Marco’s son.
During her decision, Montebello also ticked Fenech Adami off in her ruling, arguing that the PAC shouldn’t be used as a platform for “politically loaded comments”.
De Marco pounced on this comment last week to accuse Aquilina of going against the court’s “decision”, and she stood firm after Fenech Adami pointed out that she was actually quoting the magistrate’s opinion, not her decision.
If MPs let this go by, their decision could have serious implications on their own work. If MPs’ questions can be dismissed because they’re “politically loaded”, then it goes without saying that this excuse can be used to dismiss every uncomfortable question asked at the Public Accounts Committee. All MPs are politicians after all.
Who will get to decide what constitutes an unfairly politically loaded comment? The Speaker? A parliamentary committee? The courts? Either way, the train of thought expressed by De Marco last week can only lead to one outcome – longer processes and delays at the cost of the public’s right to know how their own money is spent.
Government legal advisor Robert Musumeci recently called for a reform of the PAC processes, claiming it’s “strange” that lawyers aren’t allowed to object to MPs’ questions.
His argument was that witnesses may not be aware of ongoing police investigations and therefore won’t know whether their answers will eventually see them suspected of having been party to an offence.
It’s a layer above the classical interpretation of “self-incrimination” and will give witnesses a perfect avenue to avoid uncomfortable questions, even if answering them won’t incriminate themselves.
Who will suffer as a result? Parliament’s PAC exists to allow representatives of the public to obtain answers about the way public money is spent. It’s not a courtroom, which exists to establish guilt and penalties.
Converting the PAC into another quasi-courtroom with lawyers objecting to every question their clients don’t want to answer on the grounds of flexible legal interpretations will ultimately result in less information for the public.
If the FATF vote taught the nation anything, it’s that politicians sweeping problems under the rug can only work for so long. Even if the electorate won’t punish them, their decisions could still have diplomatic consequences.
The last thing Malta needs right now is for its democratic institutions to shake under the threat of lawyers representing a shareholder of the most controversial deal of the last decade.
Prime Minister Robert Abela recently called for a ‘culture change’ in reaction to the greylisting and resisting the attempts of powerful people to get out of answering uncomfortable questions wouldn’t be a bad place to start.