Former Opposition leader Simon Busuttil had asked that a magistrate should look into the Panama Papers allegations. His request had originally been upheld by a magistrate but Prime Minister Joseph Muscat, his chief of staff, Keith Schembri, Tourism Minister Konrad Mizzi and a handful of others appealed.

Dr Muscat’s stand in this case certainly contrasted sharply with the way he had acted with regard to claims that Panama company Egrant belonged to his wife. He had asked his lawyers to raise the matter with the police who, in turn, handed over the case to a magistrate who eventually found no documents linking Egrant with Michelle Muscat.

The appeal in the Panama Papers case was upheld by a judge who found that, in submitting his application, Dr Busuttil failed to abide by the relevant article in the Criminal Code. Quoting the law, the judge noted that Dr Busuttil never clearly claimed that the facts he referred to amounted to money laundering. He commented: “This court is not saying this is a matter of a formality or syntax error (the time of excessive formalism is gone) but that article 561(1) [sic] of the Criminal Code makes it imperative on the complainant to clearly declare what the offence he is alleging consists of.”

The judge felt a magistrate could not be expected to have to look into mere allegations and then see what s/he could extrapolate from such claims that might amount to a crime or an attempt at crime.

He also commented thus: “It is a known fact, in the public domain, that the Hon. Konrad Mizzi and Keith Schembri own a trust in the jurisdiction of New Zealand. Now, whether this amounts to an offence in violation of the legal fiscal regime or not does not require a magisterial inquiry. It was up to the applicant to clearly say in his application whether these trusts were then used by their beneficiaries to launder the money or try to launder the money originating from a source not indicated by the same applicant.”

As the dean of the Faculty of Laws at the University of Malta, Kevin Aquilina, noted, the legal provision in question raises “serious rule of law issues”.

The Panama Papers fuelled grave suspicions about money laundering, as did subsequent leaked reports by the Financial Intelligence Analysis Unit. Dr Busuttil could, therefore, hardly be blamed for seeking a magistrate inquiry once he does not trust the Police Commissioner, a sentiment surely shared by many.

Prof. Aquilina called for the law to be modified: “ ...if the law places a more onerous burden on the public than it does on the police or the Attorney General, it is not up to the judge to change the law but to implement it, more so when the law is clear.”

Just as the judge commented in his decree about Dr Busuttil’s flaws in the manner he worded his request, he could have also raised the issue Prof. Aquilina made. He could have also traced how the in genere inquiry system evolved – or deteriorated, some might say – and suggested ways and means provided by law in which a worried citizen can try to right what he believes are wrongs.

His decree is another reason why an independent judicial investigation system has become an urgent matter.

This is a Times of Malta print editorial

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