Revoking oil trader George Farrugia’s pardon risks complicating matters for the police in pending court cases against former Enemalta officials, legal experts agree.

It will also create a legal precedent since no presidential pardon has ever been withdrawn.

Kevin Aquilina, law faculty dean at the University of Malta, said the withdrawal of the pardon would allow the police to press charges against the individual.

But things would get complicated for any pending court cases in which the pardoned individual’s testimony was needed, he added.

“Without the pardon the accused will be under no obligation to testify on matters that can incriminate him,” Prof. Aquilina said.

The possibility of withdrawing Mr Farrugia’s presidential pardon was floated by Prime Minister Joseph Muscat on Sunday in the wake of e-mail exchanges published in Malta Today, showing how Mr Farrugia solicited UK football tickets from a foreign oil company for a top official at the Malta Resources Authority.

The official, Godwin Sant, was yesterday interrogated at police headquarters over the case, which dates back to 2009.

Dr Muscat said Cabinet would wait for the police to investigate the fresh claims to determine whether Mr Farrugia broke the pardon condition to tell all about the oil procurement scandal.

Lawyer Stephen Tonna Lowell said the removal of a pardon would immediately lift the immunity from criminal proceedings on the individual.

Without entering into the merits of the Farrugia case, he pointed out that withdrawing the pardon would render the individual a partner to the crime and so would be treated by the courts as a co-accused. This would create its own complications.

Withdrawing a pardon will take us into uncharted waters

“Testimony given by a co-accused is inadmissible as court evidence until the person’s case is definitely decided up to appeals stage,” Dr Tonna Lowell said.

For lawyer Arthur Azzopardi any decision to retract the pardon would be “an extremely interesting legal case” because it could also have constitutional implications on the rights of the accused.

“It does raise the question of whether the incriminating statements made to the police by the pardoned individual can be used against him if the pardon is lifted,” Dr Azzopardi said.

But there is also the question as to who would decide whether Mr Farrugia broke the conditions attached to the pardon, he added. “Will it be the police, the Cabinet or the President, who is not the same one who granted the pardon?”

Reasons for revocation ‘could be challenged’

Prof. Aquilina believes it will be up to the President, acting on the advice of the Cabinet after seeking advice from the Attorney General and the police, who would inform the individual that the pardon was withdrawn.

“Granting a pardon is discretionary but I believe the person can go to court to challenge the reasons for withdrawal,” Prof. Aquilina said.

But the matter was very sensitive and not as straightforward as it seemed, he insisted.

“Withdrawing a pardon will take us into uncharted waters, including how it will be handled because I do not recall any such pardon ever being withdrawn,” he said.

In February 2013, Mr Farrugia was granted a presidential pardon to turn in State’s evidence on the Enemalta oil scandal, a story revealed a month earlier.

Mr Farrugia represented oil companies Total and Trafigura in Malta and admitted paying commissions and handing out gifts to Enemalta officials to secure oil supply tenders.

Several former Enemalta officials were charged with corruption and bribery, including former chairman Tancred Tabone, consultant Frank Sammut and financial controller Tarcisio Mifsud.

When testifying before the Public Accounts Committee last November, Police Commissioner Michael Cassar, then still head of the Security Service, said Mr Farrugia was of little help in uncovering any further corruption from 2005 onwards.

However, the latest revelations go back to 2009, when Mr Farrugia was alleged to have brokered football tickets for MRA official Godwin Sant.

Mr Sant was suspended by the government on Sunday, when the alleged e-mails appeared in the newspaper, pending investigations.

kurt.sansone@timesofmalta.com

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