Issue link: https://maltatoday.uberflip.com/i/864549
9 maltatoday WEDNESDAY, 23 AUGUST 2017 Editorial The fine line between law and business MaltaToday, MediaToday Co. Ltd, Vjal ir-Rihan, San Gwann SGN 9016 MANAGING EDITOR: SAVIOUR BALZAN EXECUTIVE EDITOR: MATTHEW VELLA ASSISTANT EDITOR: PAUL COCKS Tel: (356) 21 382741-3, 21 382745-6 • Fax: (356) 21 385075 Website: www.maltatoday.com.mt E-mail: newsroom@mediatoday.com.mt Former European Court judge Giovanni Bonello has clearly touched a nerve with a recent article suggesting that 'lawyers should not be businessmen'. Writing in the Sunday Times, Dr Bonello argued that the law should prohibit lawyers from engaging in trade or com- merce. While not all lawyers who are involved in business are disreputable, he said, "al- most all disreputable lawyers, magistrates and judges also happened to have been busi- nessmen". "All Europe, Malta excluded, considers the autonomy and independence of lawyers to be a supreme value in a democra- cy, indispensable for the effec- tive defence and the safeguard- ing of the rights of persons. It identifies the overriding profit motive inherent in business, its hazards and jeopardy as obstacles against this autono- my and independence, and an increased risk of bringing the profession into disrepute. It sees doing what is inherently incompatible as incompatible with the rule of law." He added that both the Brit- ish and the Italian systems, directly or indirectly, restrain lawyers and members of the ju- diciary from exercising acts of trade. "Veto, period," he said. At face value, part of that ar- gument should really go with- out saying. It appears obvious that 'members of the judiciary' should be precluded from any line of activity that might open them to potential conflicts of interest. Yet it is clear from recent experience that no such veto exists in Malta. For instance, former Chief Justice Noel Arrigo had previously been president of the Chamber of Commerce. The reasons for his eventual resignation may have been irrelevant... but long before the corruption scandal, questions had been asked about the fact that someone with such exten- sive business interests could be appointed Chief Justice. But Bonello's article is interesting as much for its timing as for its content. His recommendation comes in the wake of revelations that PN leadership hopeful Adrian Delia – who is also a practising lawyer – holds a 9% stake in Mgarr Developments Ltd. The company, which is developing 40 apartments on the site of the Mgarr Bay Hotel, still owes €7 million of the original €12 million in loans it had taken out for the development. It also follows statements by the same Delia that he would divest himself of his business interests once elected, which would only be possible once the debt has been paid off. It is naturally debatable how much of Bonello's article was aimed directly at Delia's candidature in the PN leader- ship election. Ostensibly, he makes no mention of either Delia, or even politics, at all. This has not stopped some observers from making the link themselves: Bonello has been described as 'close to the PN klikka' – i.e., part of a pre- sumed party 'inner sanctum' that has a vested interest in in- fluencing the choice of future PN leader. His article has been interpreted as an attempt to ensure that Delia does not win this election. But regardless of the author's intention, it would be futile to deny that his argument has deep relevance to the contro- versy sparked by Delia's can- didature... and also to Maltese politics as a whole. Though Delia himself argues other- wise, his business connections are – in and of themselves – a cause for concern. With ques- tion marks hovering over his ability to liquidate his assets in future, his company liabilities also expose him to accusa- tions that he could abuse of his (future) political influence to ensure the sale of his property; or worse, be subjected to some kind of blackmail. Such concerns are by no means limited to Delia him- self. Though Bonello's recom- mendation is limited to the legal profession, it remains a fact that lawyers are over- represented in Malta's parlia- ment: the seat of the country's legislature. They may not all have business interests... indeed only a minority might... but these are also the people who dictate legislation for the entire country. Among other things, they also draw up laws govern- ing the legal profession itself. In fact, it should come as no surprise that Malta never enacted any laws along the lines described by Bonello in other European countries. A parliament composed chiefly of lawyers may be reluctant to impose too many limitations on that particular profession. It is to be noted, for instance, that the draft 'Lawyers' Act', tabled recently, does not in- clude outright restrictions on commercial activities con- ducted by lawyers. Instead, it adopts a cautionary tone. At this point a question aris- es: if business connections are to be 'vetoed' for all lawyers... how much more so should this veto apply to lawyers/business- men who are also politicians? Elsewhere, our reluctance to regulate this particular profession is questionable for reasons beyond politics. If legal systems in countries such as Britain and Italy – which, between them, form the bed- rock of our own country's legal tradition – saw the need for such precautions... it appears reasonable to ask why we have not. There may be perfectly legitimate answers. Compar- ing ourselves with much larger countries is not always possi- ble, nor even desirable. Malta's size and limitations may have a practical, logistical effect on the ability of such legislation to actually work in practice. But whether or not we sub- scribe to Bonello's argument... these are questions that we should, at least, be asking.