On the 26th January 2018, the Constitutional Court presided by the Honourable Chief Justice Silvio Camilleri, the Honourable Judge Giannino Caruana Demajo and the Honourable Judge Noel Cuschieri delivered a judgment in the case in the names Frank Sammut v L-Onorevoli Speaker tal-Kamra tad-Deputati Dr. Angelo Farrugia; Iċ-Chairperson tal-Kumitat tal-Kontijiet Pubbliċi L-Onorevoli Dr. Jason Azzopardi; Ilkoll fil-kwalità tagħhom premessa u in rappreżentanza tal-istess Kamra tad-Deputati u tal-istess Kumitat Rispettivament.
The case was brought before the Constitutional Court as a result of two appeals filed by the defendants from two judgments delivered by the First Hall of the Civil Court exercising its constitutional jurisdiction on the 26th May 2016 and the 21st January 2017 respectively.
Facts of the case
The plaintiff, Frank Sammut, was accused of a number of criminal offences before the Court of Magistrates (Malta) as a Court of Criminal Inquiry. While the criminal proceedings brought against him were still pending, the plaintiff was also summoned by the Public Accounts Committee to give evidence and exhibit all related documentation concerning the same report issued by the Auditor General and titled ‘An Analysis of the Effectiveness of Enemalta Corporation’s Fuel Procurement’ upon which the criminal accusations were based.
Frank Sammut appeared before the Public Accounts Committee and invoked his right to silence in light of the pending criminal proceedings. In response, the Chairman of the Committee made reference to a ruling issued by the Speaker in relation to another witness who had been summoned to give evidence before the Committee, Tancred Tabone, and decided that the said ruling also applied with regards to Frank Sammut.
In essence, the ruling had reached the conclusion that Tancred Tabone had to appear before the Committee and answer any questions made to him by any member of the Committee, and that in the case of a potentially incriminating question, he could request to be excused from answering same. If any of the Committee members did not regard the question as incriminating, the Committee would then request a decision from the Chairman as to whether the witness should be compelled to answer the question or not.
The consequences to be faced by a witness who refused to answer a potentially incriminating question which was not considered as such by the Committee were that in accordance with Guideline 4 of the Guide for witnesses appearing before the Public Accounts Committee of the House of Representatives, Parliament of Malta, the witness would be found guilty of contempt of the House and would be liable to either the punishment of admonition or to imprisonment for a term not exceeding six months or to a fine (multa) of not more than €1164.69 or to both such fine and imprisonment.
The judgments of the First Hall of the Civil Court in its constitutional jurisdiction
By means of the two appealed judgments, the First Hall of the Civil Court exercising its constitutional jurisdiction had decided that the Speaker had been incorrectly summoned in the present action as he does not represent the House of Representatives and that the same reasoning applied to Dr. Jason Azzopardi in his capacity as a representative of the Public Accounts Committee. On the merits, the First Hall had considered that Guideline 19 of the above-referred Guide for witnesses appearing before the Public Accounts Committee of the House of Representatives, Parliament of Malta, which provides that “No witness may be compelled to answer a question which might incriminate him/her,” applies to evidence tendered by witnesses before the Public Accounts Committee.
The Court continued that the above-referred ruling issued by the Speaker in relation to Tancred Tabone, who had also been summoned to give evidence before the Committee and had also invoked the right to silence, whereby the Speaker had decided that in accordance with Article 16 of the above-referred Guide for witnesses appearing before the Public Accounts Committee of the House of Representatives, Parliament of Malta, which provides that “A witness who, subject to guideline 19 below, refuses to answer questions may be reported above,” was evidently subject to Guideline 19. Consequently, a witness could not be compelled to answer any question which could potentially incriminate him. Furthermore, the right to silence supersedes Guidelines 16 and 19 since these applied solely to persons summoned to give evidence and not to thouse who were also concurrently facing criminal proceedings which were still pending.
On the above basis, the First Hall of the Civil Court ruled that the Speaker’s ruling had infringed the plaintiff’s right to a fair hearing. Moreover, considering the fact that the plaintiff was facing criminal proceedings which were still pending concerning the same fact regarding whcih he had been summoned to give evidence before the Public Accounts Committe, the Guide for witnesses appearing before the Public Accounts Committee of the House of Representatives, Parliament of Malta had also infringed his right to silence as an accused person. Consequently, the First Hall ruled that both the Ruling and the Guidelines, insofar as the latter concerned witness evidence, were inapplicable with regards to the plaintiff in the course of the proceedings before the Public Accounts Committee.
The grounds of appeal
The appellants contested the findings of the First Hall, stating that the legitimate defendant in a case concerning the right to a fair hearing could only be the prosecution in the criminal proceedings and could never be the Speaker or the Chairman of the Public Accounts Committee. Substantively, the appellants argued that the Court of First Instance had extended the right to silence far beyond the permissible limits established by the Maltese Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms. Moreover, they held that the Public Accounts Committee is primarily concerned with investigating whether public funds are being correctly utilised and it is in no way concerned with criminal proceedings; Frank Sammut’s right to a fair hearing could only be potentially infringed during the course of the criminal proceedings and consequently, the appellants had nothing to do with any such potential infringement. They continued that the Committee was also empowered to conduct its investigations behind closed doors and without keeping minutes, transcripts or records of the evidence tendered. Finally, the appellants referred to the judgment of the European Court of Human Rights (Grand Chamber) in the case in the names I.J.L., G.M.R. and A.K.P. v United Kingdom (2000) wherein it was established that the guarantees contained in Article 6 of the Convention do not apply to an investigation conducted by an administrative body and that any such investigations should not be considered as forming part of criminal proceedings.
The judgment of the Constitutional Court
By means of its judgment, the Constitutional Court ruled that Dr. Jason Azzopardi as Chairman of the Public Accounts Committee was responsible for the management of the proceedings as well as for the execution of any orders and directives given to him by the Speaker of the House of Representatives and that he had in fact referred Frank Sammut to the contested Ruling in the proceedings in question. On this basis, the Court confirmed the First Court’s decision that Dr. Jason Azzopardi as Chairman of the Public Accounts Committee was a legitimate defendant in the present proceedings.
As regards the Speaker, the Court noted that the fact that the contested Guidelines bound the Speaker and the contested Ruling was delivered by the Speaker is sufficient proof of the fact that the Speaker had been correctly summoned in the present proceedings. The fact that the Speaker had not yet decided on any specific matter which may be referred to him at a later stage concerning the present proceedings against Frank Sammut was immaterial.
Substantively, the Court noted that the fact that the proceedings before the Public Accounts Committee were of an administrative, rather than a criminal nature had not been contested by Frank Sammut. This notwithstanding, Guideline 19 of the Guide for witnesses appearing before the Public Accounts Committee of the House of Representatives, Parliament of Malta provides that “No witness is to be compelled to answer a question which might incriminate him/her,” thereby endowing all witnesses appearing before the Committee with the right not to incriminate themselves.
The Court clarified that its function was to determine whether the Guidelines and the Ruling had infringed or could infringe Frank Sammut’s human rights as enshrined in the Constitution and the European Convention. Referring to the judgment delivered by the European Court of Human Rights in the names Shannon v United Kingdom (2005), the Constitutional Court held that in pending proceedings before the Public Accounts Committee, Frank Sammut may invoke the right not to incriminate themselves and the right to silence, which rights stem from the right to a fair hearing and this in light of the fact that concurrently with the proceedings before the Public Accounts Committee, there are pending criminal proceedings against him concerning the same subject-matter.
The Constitutional Court noted that in principle, the Guidelines provide only one exception to the rule compelling witnesses appearing before the Public Accounts Committee to answer all questions tendered to them – that established by Guideline 19 of the Guidelines allowing witnesses not to be forced to reply to potentially incriminating questions. This means that the Guidelines do not protect the right to silence of persons facing criminal proceedings like Frank Sammut, who would consequently face sanctions for being in contempt should they choose to remain silent. Hence the Guidelines infringed Frank Sammut’s right to a fair hearing enshrined in Article 6 of the European Convention and Article 39 of the Maltese Constitution. The same considerations applied to the Ruling, since the latter effectively denied a witness the right to silence in stating that in the case of potentially incriminating questions, the matter would be referred to the Chairman to decide whether the witness was to be compelled to answer or not.
The judgment significantly widens the applicability and reach of the right to a fair hearing, freedom from self-incrimination and the right to silence as enshrined in Article 6 of the European Convention and Article 39 of the Maltese Constitution. It clarifies the relevance of these rights within the context of administrative proceedings and investigations which could potentially affect the rights of persons facing criminal proceedings the outcome of which is still pending.