No democracy without accountability
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No democracy without accountability

In the same week that The Economist’s Intelligence Unit Democracy Index reconfirmed Malta’s status as a ‘full democracy’, a judgment by Mr Justice Giovanni Grixti revoking an inquiring magistrate’s decision to hold an inquiry on the Panama Papers leaks has muddied the waters.

Simon Busuttil had asked the court to launch a magisterial inquiry into the suspected crime of money laundering implicit in those leaks. A duty magistrate upheld the request, but all the individuals involved – among them the Prime Minister, Keith Schembri and Konrad Mizzi – filed applications requesting the revocation of the decree setting up the inquiry. This led to 18 months of manoeuvering in court that culminated in last week’s judgment slamming the door on an inquiry.

There were two reasons for this outcome. The first can be found in Dr Busuttil’s original court application that in its chronicle of points and events appeared to lack the focus and precision required by the law.   Although his account did lend itself to a narrative of criminal conspiracy involving multiple  individuals,  it was not solid enough to compel the court to open an inquiry into attempted money laundering. 

The second reason is the interpretation of the evidence and law byJudge Grixti.

For example, the judge mentions in his conclusions that email evidence presented by Dr Busuttil couldn’t have traction because it was leaked through a hack. It is true that such evidence as presented by Dr Busuttil is not admissible in criminal prosecution, but some of those damning emails could be the starting point of an investigation. A shrewd investigator would then attempt to ‘authenticate’ the email (not easy, dealing with Panama) and prize out evidence through lines of inquiry including interrogations.

But given that this type of investigation could also be seen as a so-called fishing expedition, the question arises as to whether that is the role of an inquiring magistrate. An inquiry is supposedly set up to ‘preserve evidence’ in a form that can eventually be used in prosecution, and not to investigate as such. Magistrates do hold inquiries in which they partly assume the role of investigator in trying to wring out the evidence, but this point needs clarification in the law.

Judge Grixti considered these points as well as other legal nuances and adopted a narrow interpretation of the law in his decision. 

At this point it is apt to re-examine how we got here. Although the evidence in the public domain brought up in the Panama Papers leaks, on Schembri and Mizzi particularly, is not sufficient to be used in prosecution in its current form, it is sufficient to kickstart investigations. It has been established that the pair opened secret Panama companies. If the information in emails leaked on the amount of money that would be deposited in bank accounts linked to these Panama companies can be confirmed, and if the provenance of that money can be verified, then that would surely yield enough evidence for criminal prosecution.

It is the duty of the police to initiate investigations. The police refuse to divulge whether they are carrying out investigations into these individuals – the police commissioner would only tell sister newspaper the Times of Malta recently that the police “investigate all reports”, before going into rhetoric about having expanded the section that deals with money laundering. We therefore don’t know what the status of investigations is, if any.

The recent revelations that 17 Black was owned by Yorgen Fenech, whose company was involved in the power station deal, may have given new impetus to investigations. Again, details are sparse.

As things stand, we can make three observations. As the Dean of the Faculty of Laws Kevin Aquilina suggested to this newspaper the law on inquiries is in need of amendment. This would ideally allow magistrates a wider remit of investigation, particularly given the apparent incapacities of the police. One avenue could be to set up a small unit of magistrates tasked solely with investigations into corruption and organised crime. 

Secondly, the PN’s barely audible response in the aftermath of the Grixti judgment shows that the party is so consumed by its troubles and internecine warfare that it is barely functioning as an Opposition party. This is allowing Labour free rein to spin the court decision into political vindication even though the judgment is not in any way criminally or politically exculpatory. 

Thirdly, the fact that the Panama Papers leaks implicating Schembri and Mizzi have so far failed to result in the shouldering of political responsibility or to concrete investigations is evidence of systemic failures in both the rule-of-law and political standards expected of a democratic state in Europe.

If neither political accountability nor legal process can be had in this climate of impunity and suspicion  – irrespective of whether it is the judge’s interpretation of the law or the law itself that is at fault  – Malta cannot be said to be a full democracy.

Coming after the Venice Commission’s questioning of our democratic credentials, the situation can only be ominous for Malta.   

This is a Times of Malta print editorial

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