Although it formed the subject of a debate in the European Parliament recently, the first thing to be said about the “mission report” by the joint ad-hoc seven-man delegation to Malta drawn from the LIBE and PANA committees – ostensibly “based on the resolution adopted by the European Parliament on November 15, 2017 on the rule of law in Malta” – is that it is not about the rule of law in Malta.
It is instead a report of the findings arising from a series of meetings with about 30 people (including retinue) during a two-day visit to Malta last November/December. Key people interviewed were the Prime Minister, the Minister for Justice, Chief Justice, Attorney General, Commissioner of Police, Pilatus Bank and MFSA, together with selective representatives of civil society and journalists.
To put this report in its constitutional and democratic context, readers should be aware that the European Parliament has existed as a parliament for only 39 years. Members are elected by universal suffrage every five years. Voter turnout at the last Euro-elections was 42.5 per cent – hardly a democratic mandate for anything.
MEPs are representatives of an institution that epitomises the democratic deficit that lies at the heart of the EU. All except two of the members of the seven-man delegation that produced the report come from countries who have only known democracy and the rule of law for perhaps 40 years. To compare the democratic traditions of Portugal, Romania, Croatia and Cyprus with that of Malta is to compare chalk with cheese.
Although the powers of the European Parliament have grown since the Lisbon Treaty, especially in providing greater EU-level accountability through scrutiny of EU legislation, there has been no departure from the supremacy of democratic control of national parliaments and governments. In essence, the principle of subsidiarity safeguards the ability of the Maltese Parliament and the Maltese government to take decisions and actions, with the union intervening only when the action cannot be achieved by Malta itself.
It is insolent to suppose that Malta cannot take the actions needed in this case as it must and will do. I shall return to this aspect in a later article.
Elements in Malta – reflecting a distinct minority of the electorate – driven by a combination of emotional reaction to the brutal murder of an investigative journalist and a cynical desire to rerun a general election lost only seven months ago, have dragged Malta’s name through the mud internationally and actively promoted a Euro-parliamentary report of abject quality.
Tangible proof of wrongdoing, not hearsay, lies at the heart of the rule of law
Our country has been emotionally manipulated on the international stage and its economy imperilled by a high-stakes gamble to sully Malta for tawdry political advantage.
The way this so-called parliamentary committee has conducted its investigation is a travesty of the basic principles that make up the rule of law.
First, a fundamental rule, applicable in Malta and throughout continental Europe, is that a defendant is presumed to be innocent until he is proved guilty. It is a key principle that goes back to the French Declaration of Rights of 1789, perhaps even earlier.
I was among the first to argue that Konrad Mizzi and Keith Schembri should have been compelled to resign by the Prime Minister on the grounds that although technically only guilty of deceiving the Maltese tax authorities by opening a secret Panama account without declaring it, the principle of ministerial and personal responsibility was a fundamental convention of our parliamentary democracy and their actions had offended against it.
But the Euro-parliamentary committee recommends – without adducing any evidence and spitting in the face of the presumption of innocence – that “persons [unnamed] perceived to be implicated in serious acts of corruption and money laundering… should not be kept in public office and… must be swiftly and formally brought to justice”.
Second, any enquiry of this nature must be impartial. The European Convention requires that a tribunal must be both independent and impartial. This means that the decision-makers should, to the greatest extent possible, approach issues with an open mind ready to weigh fairly the legal and factual merits of the case.
It is clear that this principle of the rule of law was flouted. The presence of a Maltese MEP on the delegation influenced its outcome and undermined any pretence that it was independent, open-minded or impartial. The Maltese MEP was hardly neutral and had a massive axe to grind. There was clearly a glaring conflict of interest.
Third, the right to a fair trial is a cardinal requirement of the rule of law. Fairness means fairness to both sides, not just one. The procedures followed must give a fair opportunity for the claimant to prove his case, as also for the defendant to rebut it. A trial is not fair if the dice are loaded in favour of one side or the other.
Even leaving aside the clear breach of a fair trial caused by the major conflict of interest of one extremely partial and all-pervasive Maltese member of the delegation, it is clear that the brevity of the limited discussion with key members of the government of Malta and the members of the Maltese administration of justice – who each had on average 30/45 minutes to make their case – has led to a parliamentary “mission report” with the dice loaded in favour of one side, which was partial and clearly designed to hurt the Maltese government and to undermine Malta’s international reputation.
In all my experience of reading parliamentary reports, I have never come across one so bereft of any substantive evidence. This so-called parliamentary report comprised unsubstantiated allegations and hearsay dressed up as evidence of the collapse of the rule of law in Malta. Tangible proof of wrongdoing, not hearsay, lies at the heart of the rule of law.
The Euro-parliamentary delegates’ mission report is guilty of developing a premeditated theory about the state of the rule of law in Malta, and then attempting to build a case to prove it. It purports to be a report about the shortcomings of Malta’s observance of the rule of law. It is instead an arrogant insult to any impartial readers’ intelligence and to the people of Malta.