Publishing entire Egrant report with redacted details ‘not an option’ – Attorney General

Publishing the entire Egrant Inquiry report whilst redacting certain details was “not an option,” Attorney General Peter Grech has told a court this morning, as lawyers for Adrian Delia accused him of protecting the Prime Minister.

Judge Robert Mangion heard final submissions this morning in the case filed by Opposition Leader Adrian Delia over access to the Egrant Inquiry. At the last sitting both Delia and the Attorney General had declared that they had no further evidence to submit.

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Both Delia and Prime Minister Joseph Muscat had testified in the court case in which Delia is demanding a copy of the full Egrant inquiry report.

The conclusions from Magistrate Aaron Bugeja’s inquiry on the ownership of the secret Panamanian company Egrant were published in July. The Prime Minister has said that he wants the entire inquiry to be published despite the fact that the Attorney General was against such a move.

In his final submissions, lawyer Vince Galea stressed that it was right of Delia to file Constitutional proceedings, referring to the AG’s argument that Delia had not exhausted his ordinary remedies. This is a standard defence in every Constitutional case, said the lawyer. In the review of administrative actions under the Code Of Organisation and Civil Procedure, a public authority is the Government and all its ministries and departments

“The AG in his note is saying he is part of the administration of the country. The argument that it is simply an administrative law matter is fallacious, he said that the AG as a subaltern of the PM passed on the report to the PM and not to the Leader of the Opposition.”

Halfway through the note, the AG changes his position said Galea, and says the document is “not a merely administrative one”. “So why did the AG start off by arguing that…the issue is administrative?” asked the lawyer.

Article 518 of the criminal code allows the AG to send the acts of an inquiry back to the inquiring magistrate until he is happy with it. This makes the AG almost like a chief Magistrate, explained the lawyer. “So how can he say that the decision not to give the copy is administrative when it is part of the inquiry?

“Even if the AG was right and it is a case of judicial review of an administrative action under article 469A, in his note he showed clearly that the article didn’t give an effective remedy. What would it be in this case? That the court declares the AG’s act null and sends the acts back to the AG so that he takes a decision on the request? I think we have seen clearly that whatever the decision of a civil court he would continue to deny the request.”

“The Attorney General gave a full copy to the PM whilst in his own words, the summary of the findings “was enough.” Nowhere did it say that he had passed on a copy to Dr. Pawlu Lia or the Minister for Justice or Kurt Farrugia,” said the lawyer. “All these people were not mentioned in the AG’s reply. Is there something to hide? You must tell the court the whole truth, not have it try to find out through witnesses. This apart from the enormous opposition to have witnesses testify.”

“We are before a court to see if a breach of rights took place…the AG is a person who is being accused of breaching the rights, not the law. It is the Office of the AG which breached the rights,” insisted the lawyer.

The Commissioner of Police had been summoned by the plaintiff to testify in a previous sitting. “He didn’t say when the investigations would be finished. Are we going to stay in this state of uncertainty for ever? When will this investigation finish? In a year, five?”

Galea suggested that the AG could redact the names of persons who aren’t directly connected to the case from the report. “But we don’t know how many there are and neither does the court. Lets say there are 5 names which should be redacted, couldn’t they just be redacted?”

The AG had argued that the Leader of the Opposition doesn’t have an investigative role and that this belonged to journalists. “The inquiry should not be used to have an MP try to acquire a document to use at the opportune moment to obtain a political advantage,” read the lawyer from the AG’s note of submissions. “So the PM or the Minister of Justice are either not politicians or in parliament because they have this document.

“Is the Leader of the Opposition supposed to sit down and wait for a journalist to write a story to inform the public? Because he isn’t a journalist? How can we come here and say that the role of the Leader of the Opposition isn’t that of a watchdog? Because the EU court only mentioned in relation to journalists? But that is because it never met such a case – this is the first time!”

Listing the people who have a copy, the lawyer said that the report had effectively been published. He suggested that the court should also be given a copy to see for itself if it agreed with the arguments of the AG and whether it is proportionate.

The decision to withhold the report is clearly discriminatory on the basis of political opinions. The allegation is that the PM’s wife was the UBO of Egrant and that the she and other PEPs could have benefited from payments from Azerbaijan through Pilatus Bank, Galea said.

The request was also made to check whether the police were doing the job they were supposed to be doing. If there is a prosecution which is recommended by the inquiry and not carried out is it not also the job of the Leader of the Opposition to ensure that this happens? The conclusions aren’t going to change if you publish the full report. Why wasn’t the first part of the conclusion, which led him to reach the actual conclusions, published?

The AG has not managed to prove the necessity of the State holding on to the report whilst the opposition doesn’t. The AG cannot continue to say that this document is secret, it isn’t because it is in the hands of a number of people. How can we say that the leader of the opposition will tamper with the investigations, He had said that the leader of the Opposition “wouldn’t keep it in his pocket” and at the same time have several people who have other.

AG replies

Addressing the court after the plaintiff’s lawyer, Attorney General Peter Grech reminded that there must be a distinction between when the AG is acting in a quasi judicial role and when taking an administrative decision. In the latter case, judicial review applies. The AG is also treated as a member of the executive branch of government in the Constitution he said.

We submit that this [decision to publish the report] is an administrative decision and therefore this falls within the normal course of the functions of the AG’s office. Therefore there was an ordinary remedy available – judicial review. There was no need for this Constitutional case to be filed.

“We need to make a distinction between the document of the report and the decision to disclose it. The report is a criminal law matter but the decision to disclose it is certainly an administrative law one.”

On the passing on to the minister or the PM’s lawyer, the fact that they saw the content of the inquiry in the context of being persons who are assisting the PM, this all is conducive to releasing a copy to the PM. This was made public on 22 July 2018. In that same Press Release, for transparency’s sake, although not required- it was said that the PM had been given a copy, Grech said.

The inquiry touched upon the PM and nobody was given a copy for political purposes, argued Grech. “The AG either gives you a copy or doesn’t. It doesn’t give it to you on condition you do something or don’t do something. That said it doesn’t mean you are at liberty to disclose all the data in it due to data protection. The same applies to redaction. This is not contemplated in the Criminal Code. Redaction is not an option, as questions would still remain over the redacted passages,” he said.

The issue of taking advantage in the political arena, this was mentioned in the context of European judgments which didn’t say that every politician has a right to access to all information. The cases were about journalists and never dealt with criminal investigations which have a certain secrecy, Grech said. “They were all about administrative law matters.”

“It is being argued that the only way to justify not giving access is to grant access, but this doesn’t hold water in this case. It is a self-defeating argument.”

This is a particular situation which has never been seen before in this country.

There was no discrimination, said the Attorney General. The importance and delicacy of the inquiry allowed a derogation to allow the PM to be given a copy, but this doesn’t mean that this should apply to everyone and render the document public. There are serious issues of privacy and prosecutions which should not be overridden, he said.

“Is the AG protecting the Prime Minister?” asked Galea in his counter-reply. The AG was wearing many hats and changing them to suit his position, said Galea. “For the PM I can allow something but not the Leader of the Opposition.”

Who took the decision as to whether this report could be discussed in public? The AG because he gave a copy to one part but not the other, Galea said.

The case was put off for judgment on the 14 May

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