PN files Constitutional case after party finance probe decision

The Constitutional Court has been asked to decide a fundamental rights case filed by the Nationalist Party (PN) with respect to party financing laws.

PN Secretary General Clyde Puli and President of the Executive Committee Mark Anthony Sammut, acting on behalf of the party, yesterday filed an appeal application against a court’s decision upholding the Electoral Commission’s right to investigate an alleged breach of party financing laws.

In March 2017, the PN was being accused of breaching the law, when hotelier Silvio Debono - the owner of the db Group – claimed that he had been asked to pay the salaries of two PN executives, through donations paid through Media.Link, the PN’s media company.

This prompted the Electoral Commission to appoint an investigative board to probe all the cases of alleged breaches of the law that were brought to its attention.

The PN had however argued that the commission could not act as judge, jury and executioner, with then Opposition leader Simon Busuttil arguing that past court sentences had shown that the same entity could not be both investigator and judge.

In April, the First Hall of the Civil Court in its Constitutional jurisdiction had not upheld these arguments, however. “The Electoral Commission has the power to investigate, pass judgment, and penalise. This notwithstanding, the court also considers that as the regulator, the Electoral Commission is not a prosecutor because its main purpose is to ensure that rules are observed,” read the judgment handed down by Judge Joseph Zammit McKeon.

It added that the Commission was above party politics and independent of the political parties being investigated.

Moreover, the Constitutional Court also noted that the proceedings in front of the Electoral Commission were not final and that the PN could appeal any decision before the Civil Court.

In the appeal application filed yesterday and signed by lawyer Jason Azzopardi, the PN highlighted the fact that it had been led to believe that it was being investigated for an offence under the Party Financing Act but that to date, it had not been told what offence it was being accused of, nor under what article of the law.

The appeal was based on the grounds that the first court had inverted the interpretation of the law in a “sad and dangerous” manner and that it had ignored the irreparable damages it would cause the party. The court had also closed its eyes to the fact that the revising court would not have heard evidence and would have to rely on evidence which may not be legally admissible, said PN lawyer Jason Azzopardi.

The first court had “completely ignored” the established safeguard that only a court, set up according to the constitution, should handle accusations of a criminal nature and had also misinterpreted previous Constitutional cases.

The Party Financing Act grants powers to the Electoral Commission to investigate, judge and impose sanctions against a political party found in violation of it. But, argued Azzopardi, it does not empower the Electoral Commission to abdicate or delegate in whole or in part, its functions to third parties and is only allowed to appoint an auditor to assist it in its duties.

Punishments under the Party Financing Act can reach €50,000 and result in the suspension of political officials.

The powers of the Electoral Commission meant that it is the judge in its own suit, a violation of one of the basic principles of natural justice and a breach of the European Convention Act and the Constitution, argued the lawyer.

The Electoral Commission is not an impartial court because its members have no security of tenure and are appointed by the Government upon whom they depend for the renewal of their posts, Azzopardi said.

In addition to that, he said, the PN had never received any summons, charge or formal notice that indicated what it was being investigated for.

The Electoral Commission had appointed a subcommittee on a fact-finding mission to investigate the alleged breaches of party funding laws. But, say the PN, the subcommittee was not made up of commissioners appointed by the Electoral Commission as per the Constitution and therefore the Electoral Commission was illegally delegating its functions to third parties

There was also a lack of guarantees as to the subcommittee’s independence and impartiality, Azzopardi said.

He asked the Constitutional Court to declare the fact that the Electoral Commission is investigator, prosecutor and judge breaches the Constitution and article 6 of the European Convention, that the process itself is a breach of the right to a fair hearing which could lead to a sanction of penal nature being given by a body which is not a court and that the power to summon party officials for information exposes the party to accusations, judgements and other sanctions without the safeguard of a right to a fair hearing.

Finally, Azzopardi asked that the proceedings filed against the PN by the Electoral Commission be declared null and void.