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Undeserved respect for the judiciary

Malta law courts
Photo: Berthold Werner

A legal bid by PN MP Simon Busuttil and PN MEP David Casa to initiate an inquiry into Minister Konrad Mizzi and OPM chief of staff Keith Schembri was denied by the courts on Tuesday.

Magistrate Francesco Depasquale said: “Contrary to what the two applicants seem to think, there is no ‘legal and judicial limbo’ neither dead nor alive”.

Magistrate Depasquale had previously upheld a request made by Busuttil and Casa for an inquiry into revelations that $1.6 million was wired to a ‘target client’ of Panama companies owned by the Prime Minister’s chief of staff Keith Schembri and Tourism Minister Konrad Mizzi.

Previously, another magistrate had already concluded that four people – Schembri and Mizzi, as well as Nexia BT’s Brian Tonna and Karl Cini – may have a case to answer on allegations of bribery, attempted money laundering and false declarations to public authorities. This decision was subject to appeal.

At the time, Magistrate Depasquale had said the case would, in order to avoid “duplication”, be added to the other existing inquiry (although being appealed).

With Justice Giovanni Grixti ruling to reject the first inquiry, even Magistrate Depasquale’s decision that an inquiry was warranted (albeit added to the first) was quashed.

But now, Magistrate Depasquale chose to talk about the lack of limbo, even when he had deemed those before him right in their request to the court.

Further, Magistrate Depasquale pointed to the fact that the time to appeal his original decision (that the inquiry be added to the first) has now expired, effectively excluding any remedy.

It fits into the picture of a compromised judiciary, leaving no room for citizens to fight for democratic rights in a context where the police and authorities are not permitting investigations.

The judiciary – once considered as the last bastion of democracy and the institution to turn to when all else failed – can no longer be treated with the respect it once deserved.

Despite all this evidence being passed to Magistrate Ian Farrugia and him stating that there were most definitely grounds to investigate Mizzi and Schembri’s links to the Panama Papers, this was then overruled by Justice Giovanni Grixti earlier this month.

Justice Grixti’s ruling placed the burden on providing evidence on the person requesting the inquiry, ignoring the duty of law enforcement authorities to investigate suspicions of money laundering.

In Justice Grixti’s ruling, the court also made reference to the “unintended” effect that this would have on the second decision by Magistrate Depasquale. But he chose to note that there was no specific request by Busuttil to consider this, so it was discarded.

One appeal effectively overruling two decisions.

The Venice Commission called the country a “flawed democracy” noting that no country with such failures in its application of the rule of law, could ever hope to call itself democratic.

Add this to Transparency International’s most recent global corruption index in which Malta was one of the biggest losers, with the intentional watchdog pointing out that “corruption weakens democracy“.

So it comes as no surprise that the top officials and Ministers named in the Panama Papers are getting away scot free.

Justice Grixti’s assertion that the request for an inquiry was based on nothing more than “baseless allegations – speculation and conjecture,” refers to evidence that in any normal country would be considered as at least worthy of investigation into attempted money laundering. This is law, not conjecture.

Mizzi and Schembri DID open companies and attempt to open bank accounts in offshore jurisdictions, only a few days after the 2013 election win.

They DID declare that they would receive €150,000 a month from Dubai company 17 Black, according to leaked emails published.

We know the company is owned by a member of the Electrogas Consortium – Yorgen Fenech of Tumas Group.

Yet, according to Justice Grixti, the evidence was nothing more than “baseless accusations”.

Magistrate Depasquale’s decision now to dryly claim that the time to appeal his own decision, which due to Justice Grixti’s ruling became vacuous, has since expired and that there is “no legal or judicial limbo” is similarly disappointing.

The judgment served the same purpose as others that came before it from Malta’s judiciary. The government immediately pounced on this too, with Edward Zammit Lewis saying that the very man calling for an investigation into corruption in the highest echelons of government by pursuing all avenues of legal recourse available to him, was in fact a threat to the rule of law in Malta.

The latest ruling was celebrated in the Labour camp as a perfect example of the judiciary working “independently” and that it was proof that the rule of law was working fine. But when the law is turned on its back to serve a purpose, that is the exact opposite of the rule of law.

Enter Labour MP Robert Abela (who made a good killing out of his service, as well as that of his wife, to the Labour Party). He chimed in, stating that the verdict confirmed that the allegations lodged were nothing but speculation and a “frontal attack”.

Abela knows what the rule of law is; but Abela chooses to mislead his constituents instead. Worse, Abela took the opportunity to invite other members of the judiciary (particularly those with pending investigations) to ensure that they followed the new benchmark set by Justice Grixti. Maltese law is not based on judicial precedent and that benchmark is particularly impossible.

We live in a country where the judiciary is appointed by the Prime Minister, where the police commissioner is hand-picked by him, and where everyone else with any authority answers to his diktat (well, his or Keith Schembri’s, because nobody is fooled on who the real Prime Minister is).

If there is nothing to hide and the courts are really so independent, there should be absolutely no objection into a full inquiry being carried out, in fact all of the accused should be begging for the rule of law to be exercised to prove their ‘innocence’ once and for all.

Instead, they insist on claiming proof of innocence based on fundamentally flawed court rulings from a captured legal system.

One of the most fundamental and undisputed principles of democracy is the separation of powers and judicial independence. This means that the exercise of political power must respect the law and the Constitution, and it can only be attained by the separation of political power from any influence on the law or legal process.

In Malta, now, these mechanisms – the checks, balances, or tools available to ensure that the rule of law, and subsequently democracy, are protected – have failed us repeatedly. Instead, anyone trying to pursue justice against a member of the ruling party is left running around in circles with no viable course of action.

Justice Commissioner Vera Jourova

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