All eyes have been on the Board members of the public inquiry into the circumstances surrounding the assassination of Daphne Caruana Galizia. But the terms of reference call for a closer look, too. They pose several fundamental choices, a series of forking paths that can take the inquiry in one direction rather than another. Where the inquiry ends up depends on these choices.
All public inquiries have to strike a balance in how they interpret their remit. Interpret too broadly and the inquiry becomes a fishing expedition, trawling for any evidence of wrongdoing that can be pinned on its target. Interpret too narrowly, however, and the inquiry is in danger of becoming meaningless, as it leaves out salient factors.
This inquiry’s remit is to investigate whether the Maltese State had any system failures that facilitated the assassination. The problem lies in what the inquiry takes to be ‘the system’.
Is it the State-entity system as formally defined? Or as it works in practice? Choose the formal definition and the inquiry will end up disconnected from how political power operates in Malta.
The inquiry has to take on board the actual weakness of the Maltese State in practice, not least the fact that some of the most senior public servants are evidently free from formal systems of procedure.
What’s on paper diverges from practice. There is a blurring of lines between the governing political party and the State. In recent years, also, the State has been increasingly taken over by private interests, which have become difficult to disentangle from public property and State actions.
Concretely, therefore, the inquiry will have to decide whether to include within its remit Glenn Bedingfield’s blog and Neville Gafà’s uploads of photos he took of Caruana Galizia. Both men were targetting her and both are government advisers. There are, also, officials based in the Office of the Prime Minister who run social media rottweiler packs that sometimes attacked her. Does their day job make them part of a State entity?
The argument to exclude them is that what they did was not part of their official State function. Bedingfield even argued that his blog was written during his private time and that he was entitled to his freedom of expression.
A narrow definition of State entity would accept this distinction. But it would be unhinged from reality. The modern State cannot be reduced to its means of administration. Its means of persuasion – its use of all available media – are salient to what it is.
There can be no doubt that the aim of the actions of all these officials was to delegitimise the harshest critic and investigator of the State’s actions. No doubt, too, that the blog and the uploads gained their full significance precisely because their authors were known to be close to the heart of government. As for the secret Labour Facebook groups, the Shift News has shown that their message was inseparable from their ability to grant favoured access to State services (say, health).
How can they be excluded from being considered as operating within State entities, if their proximity to the State enabled their anti-Caruana Galizia activities?
If the inquiry decides to include Bedingfield and friends within its remit, it would still need, of course, to evaluate whether they contributed in any significant way to endangering Caruana Galizia’s life – say, by leading the killers to believe (however erroneously) that she could be killed with impunity. But to rule the issue outside the remit would change the complexion of the inquiry itself, undermining its credibility.
The remit also gives the inquiry access to all information held by State entities. But the privatisation of the State in recent years has included the Prime Minister breezily acknowledging that he used a private email account for official business.
We know how Hillary Clinton was treated over the same issue – she was expected to turn over all her work-related emails even if she used a private server. Will the inquiry decide that it should have access to all government emails, even if sent over private systems?
That decision will be fundamental. The inquiry can decide its remit is limited to information systems belonging to the State, rather than information systems used by the State. But if it goes down that path, it would make itself a laughing stock.
Several other examples can be given where the fundamental character of the inquiry will be given by whether the inquiry takes the narrower or the broader path. How, for instance, can the inquiry tackle whether the State is fulfilling its duty to protect journalists without deciding what the ‘State’ includes?
Given the salience of these questions, how the Board of Inquiry answers them will not define only the inquiry itself. Every choice, at every fork in the road, will define the Board members themselves.