Updated 12.45pm, adds PL statement

The Opposition on Tuesday took the State Advocate to court arguing he had to recover the defrauded funds in the now defunct hospitals' deal in the public interest. 

In proceedings before the First Hall, Civil Court, PN Leader Bernard Grech and MP Adrian Delia claimed that the State Advocate, as “the last man standing in our constitutional system” is empowered and duty-bound to take action against present and past government officials involved in the deal. 

Speaking outside the Court, Grech said the PN is seeking to have the court declare that the State Advocate should not have to rely on the prime minister to initiate proceedings to reclaim the money. 

"The State Advocate is there to represent the entire state and not just the government and Robert Abela,” Grech said. “We have asked for this case to be heard with urgency because it is urgent that we get that money back."

The action follows up on the landmark judgment delivered in October annulling the Vitals contract.

Former PN leader Adrian Delia said that following the courts’ decision to cancel the contracts related to the hospitals’ deal, the PN had asked for political responsibility to be shouldered for the affair, for the money spent on the deal to be reclaimed and for all those who had done wrong to face justice - but so far this has not happened. 

“These are logical and normal requests that in a normal country would not be coming from the Opposition, he said.

 Delia added that the government has an interest in resisting attempts to reclaim the money from the deal because senior government officials had been complicit in perpetuating the fraud.

"There is a crisis in our country because we have a prime minister who is supposed to be pushing for this money to be returned but was himself condemned by the court of having been involved in this conspiracy and great fraud,” he said.

“This is why we are turning to the autonomy of the courts, because the prime minister has seized the independence of the State Advocate as well.”

Grech and Delia previously filed a judicial protest against the State Advocate, the Attorney General and the Police Commissioner to take action against those who had defrauded the Maltese people. 

Those offices responded by filing two counter-protests, saying that they were not empowered to do what was being requested of them. 

The Opposition promptly hit back, filing a reply in court whereby it warned the relative authorities that if they persisted in abdicating their official duties to take action over the fraudulent hospitals’ deal, they would be held personally responsible.

One month after that final warning, the Opposition followed up on its previous judicial acts by filing a lawsuit against the State Advocate, requesting the court to declare that he has the power and duty to act to recover the funds swindled to the detriment of the Maltese State. 

Moreover, since this was a matter of national interest, the applicants sought to have the case dealt with urgently. 

Their argument that the State Advocate has not only the power but also the duty to act, runs twofold. 

The final judgment delivered by the Court of Appeal had already paved the path for the State Advocate to act, the opposition claims. 

The application was filed by PN leader Bernard Grech, left, and former leader Adrian Delia. Photo: Jonathan Borg

The State Advocate was a party to those proceedings so it was “crystal clear” that he was directed to act in terms of that final judgment against those who perpetrated the fraud and the collusion, argued the applicants’ lawyers. 

That judgment applied against former Prime Minister Joseph Muscat, the State Advocate, INDIS, the CEO of the Lands Authority and the chairman of its board of governors. 

The State Advocate’s decision to act should not wait for the consent or approval of the government, or the Prime Minister or any other government official since the interests of the State exceeded those of individual government members like those found by the court to have failed in the hospitals’ deal. 

That the State Advocate’s role was more than simply an advisory one in respect of the government, was evidenced even by the debates which took place in Parliament in 2019 when the law creating the division between the Attorney General’s and the State Advocate’s Offices was being promulgated. 

'State Advocate is last man standing in constitutional system'

Then Justice Minister Owen Bonnici, who was piloting the law in the House of Representatives, had described the State Advocate as “the last man standing in our constitutional system”.

That was because he was “the advocate of the whole State and not only of government or Parliament or the judiciary alone”.

The State Advocate was to “act in the public interest and to safeguard the legality of the State’s actions”, Bonnici had stated, adding that the two offices, namely the Attorney General and the State Advocate, were “100%” as proposed by the Venice Commission in its 2018 report. 

Besides the pronouncement by the highest court of the land, the State Advocate was also empowered to act in terms of article 1051A of the Civil Code which laid down the remedies in cases of corruption.

The State Advocate was to protect public property so that all those involved, directly or indirectly in such fraud and collusion to the detriment of the State, are held personally and jointly responsible for refunding the monies unduly forked out through such fraudulent acts. 

Moreover, in terms of article 91A of the Constitution, the State Advocate is duty bound “to act in the public interest and must safeguard the legality of State actions”.

In doing so, he is to act “according to his own judgment and should not be subject to the direction or control of any person or authority".

Yet, in spite of being so empowered both in terms of law and also the appeal judgment, the State Advocate has to date not taken any action, argued the applicants, turning to the court to declare that the respondent had the power and duty to act in such manner as to recover the defrauded funds and to do so in the public interest. 

Lawyers Edward DeBono and Nicholas DeBono signed the application. 

The Labour Party said in a brief statement the PN was lying when it said that no action had been taken about the concession as it was well-known that the case was in international arbitration.