The implications of last week’s court decision by Judge Giovanni Grixti, denying Repubblika’s request for a magisterial inquiry into whether corruption was involved in the VGH deal, go beyond the actual case itself. If the judge is right, the law is almost pointless and journalists are pussycats, not watchdogs.
Grixti overturned the earlier decision by a magistrate to trigger the inquiry that Repubblika requested. The case ended up in his lap because the three ministers named in Repubblika’s request – Edward Scicluna, Konrad Mizzi and Christian Cardona – used their right to appeal to the Criminal Courts. Why they have that right at all goes to the heart of the case.
The law was discussed in the summer of 2006. The (Nationalist) ministers piloting the bill were Tonio Borg and Carmelo Mifsud Bonnici. The intention was to empower private citizens and civil society organisations to combat serious crime. The proposed law granted them the right to request a magisterial inquiry into a suspected serious crime.
The original version of the law included a proviso that the Chief Justice’s permission would be needed in addition to a magistrate’s go-ahead. This precautionary measure suggests that the then government was concerned that the law could lead to too many inquiries being triggered. It indicates that the threshhold of evidence was permitted to be low.
However, the then Labour Opposition objected to magistrates being supervised by the Chief Justice. As a compromise, a right of appeal to the Criminal Court was given to the targets of an inquiry approved by a magistrate.
That’s how Giovanni Grixti ended up reviewing the decision by Magistrate Claire Stafrace Zammit – because the legislators themselves expected that inquiries could be triggered by prima facie evidence that could even be based on hearsay (just as police investigations are).
Grixti’s decision ignores this intention. Instead, he revoked the magistrate’s decision because, he says, she misstated the law and, hence, her decision is invalid.
Grixti’s decision raises three issues. First, is he right about the law? The issue turns on two sentences in the law itself. One says that the subject matter of the crime needs to be described in detail, together with how it was brought about. The law immediately goes on to speak of how an on-site magisterial inquest is needed for such an investigation.
You’d think the law therefore means this: a private citizen reports something, not legal proof, that triggers an investigation; the investigating magistrate then has to establish the details of any crime, if it exists. (Then the Attorney General has to agree to prosecute. Then the prosecution must prove its case in court.)
However, Grixti wants us to know that the law means something else: the law expects ordinary citizens to establish the details of the crime.
If this is what the law means, you have to wonder why the legislators ever felt the need to grant supervisory powers to the Chief Justice. If all the details are given, what is there to check?
If Grixti’s reading is right, the law is virtually worthless. Grixti accepts, in principle, that the standard of evidence is lower than that required in a trial. But somehow he wants this low standard of evidence to be capable of specifying the details of a crime and its execution.
Under what conditions would an ordinary citizen have access to such knowledge? It would have to be not only direct personal knowledge but also pretty comprehensive. For Grixti, your level of proof can be low but your knowledge must be vast.
Do you have an informed source, unwilling to come out into the open without police protection? Not good enough – especially if this source knows only of one suspicious transaction in what is a larger shadowy scheme.
The law turns out to be unusable by almost all ordinary citizens. But it also renders investigative, anti-corruption journalism to be pointless for legal purposes.
In requesting an inquiry, Repubblika extensively cited the investigations by The Shift News (and The Times of Malta, and Daphne Caruana Galizia). For the Judge, these investigations count for nothing as far as triggering inquiries are concerned.
Early on, he shows his bias by stating that the three ministers gave (not alleged) Caroline Muscat’s journalistic background. He does not query their description of her investigative stories as driven by an anti-Labour bias. The stories were in fact against corruption – and not one of those stories has been disproved. One led to a junior minister’s resignation.
None of this counts for anything in the Judge’s decision. He accepted the ministers’ depiction of journalists: if they publish stories that show the shortcomings of the government, then they are anti-government activists. If journalists don’t find the whole story, then everything they write is conjecture.
On this definition, of course, there are no journalistic investigations. There are only opinions. There are no media watchdogs. There are only pussycats, purring away.
If journalists were to be in a position to offer legal proof (which is what the ministers demanded), they would be a private police force – capable of forcing witnesses to testify under oath and searching premises. Far from being democracy’s watchdog, they’d be its downfall.
What the ministers think of journalists shouldn’t surprise us. But we have a Judge who first ruled that the Panama Papers don’t count as evidence, and now says that the law needn’t take media investigations seriously.