Civil society organisation Repubblika has filed a new court application today presenting further evidence to support the request for a magisterial inquiry into the actions of three Ministers in relation to the Vitals Global Healthcare (VGH) deal on three of Malta’s public hospitals.
The application was filed after Judge Giovanni Grixti yesterday overturned a magistrate’s order for an inquiry to look into the conduct of Ministers Konrad Mizzi, Chris Cardona and Edward Scicluna in the sale of three public hospitals to VGH.
Repubblika expressed its “concern” about Grixti’s decision. “The Judge found that the investigations by journalists publishing in newspapers or online are not a suitable basis for starting an inquiry. We respectfully disagree,” the group said in a statement.
Grixti was ruling on an appeal by the three Ministers over Magistrate Claire Stafrace Zammit’s decision six weeks earlier that they should be investigated on the transfer of St Luke’s, Karin Grech and Gozo hospitals to VGH worth €70 million per year, then transferred to Steward Healthcare for €1.
Last January, the same Judge blocked another inquiry ordered into the Panama Papers scandal. As in this case, the Judge was examining whether the report that was made was substantial enough to justify starting an examination of facts in order to preserve these facts in an inquiry for what could eventually be a prosecution.
The Judge chided Repubblika for too much detail in its application for an inquiry into the VGH deal, while also saying that insufficient evidence had been presented to justify an inquiry. Grixti’s ruling on Thursday effectively meant that the three Ministers would not be investigated.
“We are perplexed by yesterday’s ruling that accuses Repubblika both of providing too much information and detail in our submission and that the information we supplied was too sparse to justify the opening of an inquiry,” the group said.
Lawyers who spoke to The Shift News said Grixti’s ruling relies on the wrong premise that a a request for an inquiry must have a list of all the evidence gathered, its state and how the crime was perpetrated. Yet, in Malta, a magisterial inquiry is set up to gather and preserve evidence.
‘A collection of opinions by journalists and bloggers’
Grixti’s decree states that Magistrate Stafrace Zammit had based her decision (for an inquiry on the three Ministers’ involvement in the deal) on information brought forward by Repubblika which was, in turn, based on a “collection of opinions by journalists and bloggers who chose to join forces to expose as fact that the four suspects had devised a plan to award the hospitals’ contract to VGH, in order to benefit those involved in the deal”.
He added that ”the crux of the allegations rely almost entirely on unidentified sources” and that there was “absolutely no form of control” on conclusions of journalists and bloggers, statements that the three Ministers pushed to back their claims of being “framed” and that reports of wrongdoing were nothing more than “character assassinations”.
When the three Ministers had appealed, they hit out at The Shift News as “a partisan news outlet”, an allegation the Judge adopted in his decree, despite the fact that the attack by the Ministers had been reported as “a threat to press freedom” by the Council of Europe stating that the three Ministers attempted to “dismiss the scandal on the basis of ‘hate’, ‘mediocrity’, and ‘agendas’”.
The findings on the VGH deal have been widely reported by the mainstream media in Malta. The facts presented by The Shift News were based on documents filed in Court in Malta and registry documents related to company set ups and share transfers. It is information that is publicly available and referenced in the reports on the scandal.
“The courts, in turn, are expected to provide checks and balances to a corrupt Executive, rather than sanction its corruption. Yesterday’s judgment is an example for all institutions to ignore what is published in the media and assume that whatever crimes public figures are found to have committed by journalistic investigations should be presumed to be untrue,” Repubblika said.
“We hope that the judiciary does not share the view expressed in yesterday’s judgment that the work of journalists should be at best ignored by the State’s institutions, at worst suppressed,” the group added.
Findings on the VGH deal reported by newsrooms in Malta and abroad were confirmed in a report on the rule of law in Malta by the Parliamentary Assembly of the Council of Europe (PACE). The report described it as an “inadvisable, underhand deal”.
Mizzi negotiated a suspect deal with people with no proven experience in the sector “through an unbalanced contractual relationship” that granted them as much as €150 million before they proved “incapable of meeting their obligations and selling out,” the PACE report states. It was adopted by the Assembly last May.
Special Rapporteur Pieter Omtzigt concluded that the deal with Vitals Global Healthcare was made with “a questionable group of businessmen who made inordinate profits at the expense of the Maltese taxpayer”.
‘There is no right to not be investigated’ – former Judge
Yet, Grixti decided that launching an inquiry on the basis of news reports breached the principle that everyone was innocent until proven guilty. This was slammed by a retired member of the judiciary consulted by The Shift News to assess the implications of Grixti’s ruling:
“While there is the right to the presumption of innocence…There is no right to not be investigated. But that is exactly what Grixti has established by this decree and his previous one in January,” he said on condition of anonymity.
“To link the presumption of innocence to the alleged absence of ‘facts’ other than ‘opinions of bloggers and newspapers’ amounts to a prevarication of the facts”. “The police can, in some cases, commence an investigation even on an anonymous tip-off; but a judicial investigation requires boiler proof evidence cast in steel to be presented. How convenient for ministers and all corrupt public officers,” he added.
Repubblika expressed its concen that it feared Grixti’s ruling that it would reinforce concerns shared by journalists that institutions were protecting the corrupt from the scandals revealed through their work.
Judge further emboldens courts, politicians and police to ignore journalists work', dismissing call for hospital deal probe as 'a collection of opinions by journalists, bloggers'. The whole point of an inquiry is to gather evidence about these findings, not dismiss them outright https://t.co/Pa4cxAY33r
— Jacob Borg (@BorgJake) October 3, 2019
The group noted the remarks made publicly by several journalists reacting to Grixti’s ruling. “We fear that yesterday’s ruling will enhance the tragic impression many journalists have that the State’s institutions have organised themselves to immunise each other from whatever wrongdoing that may be revealed about them through the work of journalists.”