After being rendered toothless by a landmark court judgment, the party financing watchdog is set for a prolonged period in limbo, amid uncertainty on when the necessary legal amendments will be moved by the government.
The case was instituted by the Nationalist Party which had argued that the Electoral Commission, by law vested with the function of regulator, could not be judge and jury.
The legal challenge came in the wake of an investigation which the commission had launched in 2017 on alleged irregularities involving large donations from Silvio Debono’s db Group to the PN.
Though a lower court had initially dismissed these objections, the decision was subsequently overturned on appeal by the Constitutional Court presided by Chief Justice Joseph Azzopardi and justices Giannino Caruana Demajo and Noel Cuschieri.
In a 119-page judgement, the court noted that the commission could not investigate and impose penalties as this would be in breach of the fundamental concept of “independence and impartiality”. Furthermore, it held that even the setting up of sub-committees to investigate any claims would be in breach of the fundamental right to a fair hearing.
The commission could not investigate and impose penalties
In view of this a copy of the decision was sent to the House of Representatives, in order for legislators to amend the party financing law as otherwise any breaches could not be punished.
While the PN hailed the decision as a political victory, from a legal perspective it means that the government has to go back to the drawing board to draft the necessary changes for a law which has only been in force since 2016.
However, when The Sunday Times of Malta inquired with the Justice Ministry about when it would be taking urgent action, the ministry did not commit itself, while blaming Nationalist governments for dragging their feet on enacting such a law in the first place.
In a terse reply, a spokesman noted that The Financing of Political Parties Act had been enacted by the Labour government “after 25 years of inaction by the previous administration”.
Yet, the ministry would not give any timeframes on the way forward, saying it was “analysing the very lengthy judgment” and that any amendments to the law would be tabled in Parliament once this process is completed.
The law in question, the first ever of its type for Malta, had vested the Commission with the power to regulate political parties, particularly donations, and if necessary punish them for any breaches.
At the time it had been hailed as a giant step forward in the wake of concerns that political parties were falling prey to large organisations giving them huge sums of money, in return for getting preferential treatment from the party if elected to government.
However, in July 2015, when the Bill was still being debated in Parliament, the PN expressed reservations on the decision to vest the Electoral Commission with the responsibility of party watchdog. At the time questions were raised on the impartiality of the regulator, given that the majority of the Commission’s members were elected by the government of the day.
Consequently, the PN recommended setting up a dedicated body whose members would enjoy the same security of tenure, like the Ombudsman and the Auditor General, who can only be unseated with the backing of two thirds of MPs. However, the Labour government did not heed this advice.
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