Brian Tonna’s fundamental rights breached by Speaker’s ruling

Brian Tonna’s fundamental rights were breached by a ruling by the Speaker of the House and the Parliamentary Accounts Committee’s witness guidelines, a court has ruled today.

Mr. Justice Giovanni Grixi, presiding over the First Hall of the Civil Court in its Constitutional jurisdiction, handed down judgement in the constitutional case filed by Tonna, the former owner of accountancy firm Nexia BT, over a May 2021 ruling by the Speaker during Tonna’s grilling over the Electrogas deal.

Tonna had been called to appear before the PAC during discussions on the results of a 2018 National Audit Office investigation into the award of the power station tender to Electrogas. 

He had initially invoked his right to remain silent, but this right was expressly excluded by the Guide for Witnesses appearing before the Public Accounts Committee of the House of Representatives.

A ruling was requested from the Speaker of the House on this matter.

On April 19, 2021, the Speaker had ruled that a witness called to testify before the PAC, must answer questions if he is not the subject of related criminal proceedings but could not be forced to potentially incriminate himself.

The Clerk of the House had later written to Tonna, informing him that the Speaker’s decision was clear and did not permit him to invoke the right to silence.

Tonna’s lawyers had argued that his right to silence was not being respected and that the PAC and the Speaker’s ruling breached his right to a fair hearing. It was also argued that, because the non-observance of PAC guidelines for witnesses by refusing to reply to questions was punishable by imprisonment for up to six months, he had also suffered a potential breach of his right to personal liberty.

In filing the case, Tonna had asked the court to declare the Speaker’s ruling and the PAC guidelines for witnesses in breach of the Constitution and the Convention for Human Rights and order the expunging of all of the testimony and documentation that he had given the PAC be removed from the parliamentary proceedings. Damages were also requested.

In the judgement handed down on Tuesday, Mr. Justice Grixti observed that the right to silence was intended to protect the fundamental right not to incriminate oneself. In a scenario where a person is at the centre of allegations such as those against Tonna, that right assumed a greater importance, “not only because he was already a defendant, but also because he had already assisted and was still assisting in pre-trial proceedings.

“Therefore, the Ruling and the guidelines when speaking of criminal proceedings, or rather pending charges, fail to protect the right to a fair hearing.”

The judge declared the Guide for Witnesses appearing before the Public Accounts Committee of the House of Representatives breached Tonna’s right to a fair hearing, as protected by the European Convention on Human Rights and the Constitution of the Republic of Malta, insofar as they obliged him to respond to the questions put to him by the members of the PAC, which could prejudice his position in other proceedings.

The Speaker’s Ruling had also breached his right to a fair hearing for the same reason, said the court, as it ordered the expunging of Tonna’s testimony and the documentary evidence he had submitted.

No damages were awarded, however, with the court noting that it “saw no reason for him to be given any non-pecuniary compensation or give other directives,” ordering the costs of the case to be borne by both parties in equal measure.