Attorney General Victoria Buttigieg turned up in court on Tuesday for her long-awaited testimony about a decision not to prosecute top officials of Pilatus Bank.

But what promised to be a riveting session in open court was quickly defused, as proceedings continued behind closed doors. 

Buttigieg walked into hall 13 of the Valletta law courts, accompanied by several lawyers from her office as well as by the State Advocate Chris Soler. Inside, representatives of NGO Repubblika and their lawyer were waiting for the proceedings to start. 

Tuesday’s hearing followed a flurry of applications filed on Monday by Buttigieg and FCID inspector Pauline D’Amato, seeking to have an order requiring them to testify revoked. 

All their arguments were shot down by the court, which insisted that both witnesses were to testify at Tuesday’s hearing. 

But as soon as Tuesday’s hearing got underway, AG lawyer Fiorella Fenech Vella informed the court that they wished the testimonies to be heard behind closed doors and for any documents requested by Repubblika to be kept under lock and key by the court. 

The information was “privileged” and was not to be made public. 

“There are particular reasons for this request and we wish to put them down in writing,” stepped in Soler. 

Fenech Vella then rolled out a list of reasons, reading from a prepared note, while the judge listened attentively. 

If the testimonies were to be made public, ongoing investigations could be endangered.

But the primary reason for the AG’s objection stemmed from proceedings before an international tribunal where the Maltese State was strictly bound by confidentiality, she said.  “Is there some decision that will affect these proceedings?”asked the judge. 

“The foreign proceedings are secret and we are prohibited from presenting documents here,” explained Fenech Vella, adding that if that confidentiality were to be broken, there would be negative repercussions for Malta.

Attorney General Victoria Buttigieg (left) leaves court on Wednesday. Photo: Jonathan Borg

They could request the foreign tribunal to give proof that the parties were prohibited from divulging information, stepped in Soler. 

Fenech Vella was most likely referring to a case Pilatus Bank owner Ali Sadr Hasheminejad filed using a Hong Kong-based company with the International Centre for Settlement of Investment Disputes, an investor-state dispute settlement body. 

Repubblika lawyer Jason Azzopardi argued that the AG”s arguments were “a legal heresy,” and pointed out that in this case Malta had not enacted any legislation in this regard. 

“It’s humiliation, it’s the spin that’s been going on out there. No, there is no foreign body that binds, or impinges upon this court.”

In an attempt to resolve the issue, the judge observed that what Repubblika were asking for was for the AG to testify about whether she had issued a nolle prosequi – an instruction not to prosecute - in respect of certain former Pilatus officials. 

Repubblika was not asking for the documents but for the testimony about those documents, observed the judge. 

“But instead of getting the documents, the information is being sought verbally,” argued Fenech Vella. 

“I beg to differ most strongly,” countered Azzopardi . “This is censorship, this is gagging.”

One of the ban requests in the AG’s note was for parties and their lawyers not to release any statements in public.

“This goes against freedom of speech,” argued Azzopardi, pointing out that Repubblika had no intention of impinging upon national security. 

“All we want is justice.”

Moreover, the police file as well as correspondence between the investigating officer and Deputy Commissioner Alexandra Mamo or the inspector and the AG, were not privileged information. 

“They are wrong. They want to mislead the court. After all it’s a case for judicial review,” went on Azzopardi, suggesting that the documents could be presented and kept under seal by the court.

“So if the nolle prosequi is made public, does that also breach confidentiality?”asked the judge, addressing the lawyers on the AG’s side.

“Yes,” came the joint reply. 

Malta could even possibly be held guilty of contempt by the foreign tribunal for breaching statutory obligations, they argued. 

Faced with that scenario, the court said that it did not in any way wish to place the Maltese State in such a position, pointing out that after all, “we are here in the interests of justice.”

“What if I start hearing the case behind closed doors until they [the respondents] bring me evidence of these foreign proceedings and the condition of confidentiality?” suggested the judge.

“Before taking this decision, I invite the court to consider what sort of message will be sent out….We speak about scrutiny of the institutions…..The best detergent is sunlight,” argued the lawyer.

The court said that while it agreed that judicial proceedings should, as a norm, be public, in this case it would hear the case behind closed doors until the respondents brought evidence regarding the foreign proceedings. 

“I’m smelling a rat here. If they were genuine, they would get this evidence immediately. The AG has known about this hearing for seven weeks,” insisted Azzopardi. 

“This is a red herring. I am morally convinced that they are not in good faith. It was done at the eleventh minute of the eleventh hour…” 

“We did mention this fact in our applications but those applications were not served upon them [Repubblika]. We are not trying to hide anything,” Fenech Vella rebutted 

“The State is saying, ‘I want the court to be complicit with me to shut up civil society. The State is saying that it wants to gag civil society” Azzopardi heatedly pressed on.

“So we are going to get proof that Ali Sadr is going to bind the hands of the Maltese court,” shouted Azzopardi, triggering a vociferous verbal spat with the lawyers across the table, prompting the judge to intervene to restore calm. 

Even if the order by the international organ may have followed upon a request by some individual, “I will abide by the order of such organ not an individual. If they bring evidence to prove this, I will not breach any order of confidentiality,” concluded the judge. 

“It’s not that we want to hide the truth,” said Fenech Vella. 

Meanwhile, until the AG’s lawyers obtained that evidence from the foreign tribunal, the proceedings would continue behind closed doors, Judge Falzon Scerri concluded, urging the lawyers to produce that evidence by the next sitting. 

“I don’t have control over a foreign tribunal,” pointed out Soler.

But he would do his utmost to obtain the information requested, hoping that he would succeed. 

The court would then take up the matter from there. 

The case then continued behind closed doors, with Inspector D’Amato being called out first to testify. 

Earlier on, lawyer Roberto Montalto, informed the court that as legal counsel to Antoniella Gauci, one of the former Pilatus officials possibly affected by these proceedings, he would file an application for Gauci to formally intervene in the suit.