‘The Maltese can get through this stronger, prouder than before’ – Omtzigt

The sudden, unexpected release without charge of the Prime Minister’s Chief of Staff Keith Schembri, despite the reported evidence and accusations against him, just before Muscat said he hoped that the investigation would be completed within hours was “very suspicious”, according to the Special Rapporteur of the Parliamentary Assembly of the Council of Europe (PACE) Pieter Omtzigt.

In an exclusive interview with The Shift, he pointed out that a properly functioning criminal justice system would not allow for such suspicions. Referring to the government as “a shameless regime”, Omtzigt said the only way to avoid them now was for Muscat to remove himself immediately from any position that could allow him to influence the investigation into Daphne Caruana Galizia’s assassination. It would just get worse for the country if Muscat resists until the successor is chosen, Omtzigt said.

He is the author of the report on Malta titled ‘Daphne Caruana Galizia’s Assassination and the Rule of Law in Malta and Beyond: Ensuring that the Whole Truth Emerges’ adopted by PACE in May that lists the scandals hounding the Maltese government that Caruana Galizia had revealed. The resolution had set a deadline for the launch of an independent and impartial public inquiry, that will commence next week.

He questioned Muscat’s “personal interest” in the denial of the presidential pardon to the suspected mastermind, Yorgen Fenech, saying the Prime Minister may have had “motive, means and opportunity” to influence the decision, against the interests of justice.

He was critical of government’s actions in ignoring the demands of its citizens and international institutions that have warned of too much power concentrated in the hands of the Prime Minister. Ignoring these institutions has “a significant reputational cost”. He told The Shift that given the current context, PACE may decide to open monitoring procedures on Malta.

He ended on a positive note, saying he believed the Maltese people can see this through. But he also said that Malta should not depend on outside forces to solve its problems. Rather, the Maltese people must build on the country’s historical record of standing up to invading forces, even if from within. 2019 could be the year Malta makes history again.

In a letter to Justice Minister Owen Bonnici on 26 November you stressed the need for the Prime Minister to take several steps away from the investigation on Daphne Caruana Galizia’s assassination. Could you outline your concerns?

As Prime Minister, Joseph Muscat has a very powerful influence over the criminal justice system, including over the police and the judiciary. Muscat, however, has a clear conflict of interest. His closest political associate, Keith Schembri, has been implicated in various serious offences, and Yorgen Fenech may also have made accusations against Muscat. Whether or not Muscat or Schembri are actually guilty is not the point here – these allegations must be investigated fully by the police and charges brought, if necessary.

Just as a matter of principle, therefore, Muscat’s conflict of interest and potential influence create a risk of improper interference. In this case, there are also suggestions of actual interference. The sudden, unexpected release without charge of Schembri, despite the reported evidence and accusations against him, just before Muscat said he hoped that the investigation would be completed within hours – this looked very suspicious indeed.

A properly functioning criminal justice system would not allow for such suspicions. The only way to avoid them now is for Muscat to remove himself immediately from any position that could allow him to influence the investigation. The best way of achieving this would be for him to resign now, rather than waiting until his successor has been chosen.

Prime Minister Joseph Muscat has taken a unilateral decision to grant a presidential pardon to middleman Melvin Theuma. Yet, suspected mastermind Yorgen Fenech who has name-dropped top government officials as being linked to the assassination, has been denied one. Does this raise concerns?

I cannot really comment on the substance of this decision, if only because I do not have enough information to do so. But if Fenech claims to have evidence against Schembri and Muscat, as has been reported, then Muscat could have a personal interest in denying him a pardon: perhaps Fenech would not testify in court without one. We don’t know the reasons why the pardon was denied. But we do know that Muscat may have had motive, means and opportunity to influence the decision, against the interests of justice. Again, whether or not he actually did so is not the point – this situation should not be possible in a properly constituted criminal justice system.

With the alleged involvement of State actors in the assassination or attempts to derail investigations becoming public, it appears that some of the concerns raised in the original PACE report have been shown to be well-founded. Is the Council of Europe empowered to take emergency steps in order to seek to mitigate the effects of such concerns?

The Council of Europe expects its member states to respect their obligations. In most cases, the response to failures is essentially diplomatic – naming and shaming. The Assembly has already done this in relation to Malta. So, to my mind, have GRECO and MONEYVAL, the Council of Europe’s anti-corruption and anti-money laundering bodies – at least implicitly.

Whether or not this is effective depends on how shameless a particular government may be – and I must say, Muscat’s government was quite shameless in how it rejected my report and failed to implement the Venice Commission recommendations. But even for a shameless regime, being accused of serious rule of law failings by an authoritative body like the Council of Europe has a significant reputation cost, including among financial institutions, who consider such countries more risky – which increases the transaction costs of doing business with them.

I would add that given how seriously the situation has deteriorated in recent weeks and the unconstructive attitude of the current government, it may now be necessary for the Assembly to take the next step of opening monitoring of Malta.

In an Information Note, you recently detailed a complete lack of substantive progress on all but one recommendation made to the Maltese government on the rule of law in Malta. What are the possible repercussions if the Maltese government resists the need for democratic reform?

The most important repercussions are on the domestic level. The lack of checks and balances and the potentially dangerous influence of the Prime Minister over the criminal justice system have contributed greatly to the current political crisis and are an obstacle to its resolution. There are also repercussions for Malta’s international standing.

The international community now knows that there are serious deficiencies in Malta on many levels; and it seems increasingly clear that the country, or at least its current government, is unable or unwilling to address them. On a more personal level, Muscat publicly promised to implement the Venice Commission’s reforms over a year ago and in March, (Justice Minister) Owen Bonnici made similar promises to the European Commission. These promises have been broken – can the international community now trust Muscat and Bonnici to keep their word? Setting aside any other reasons there may be for doubting them.

Coming back to the murder investigation, Muscat’s conflict of interest means that for as long as he remains Prime Minister, there will be suspicions that he is interfering. Even if he didn’t, the possibility alone could lead to endless appeals before any convictions are final. Since it is now too late to introduce the reforms that would prevent the possibility of interference in the current murder investigation, the best solution now is for Muscat to resign immediately. The UK managed when David Cameron resigned unexpectedly; Malta will manage if Muscat resigns immediately, especially since it is now expected.

Citizens are concerned that after years of evidence of corruption revealed by the press, and the control of the Prime Minister on developments, that the democratic tools available to citizens will not be enough to lead to change in the country. ‘Where is the EU?’ or the Council of Europe, they ask. What hope for the Maltese people if the government continues to defy the norms of democracy?

Malta should not depend on outside forces to solve its problems. Malta was dominated by outside forces for too much of its history. Now that it is independent, it must first of all rely on itself. I have confidence in the ability of the Maltese people to find a way through this crisis. The police deserve credit for the recent breakthroughs, even if Europol helped; there are some determined, principled politicians on both sides of the house; Maltese journalists are in the thick of things, reporting live and direct; and last week’s massive protests have already produced results.

Maltese democracy has not yet failed, even if it has been threatened by abuse of power. Do not expect international bodies to ride to the rescue – it is not going to happen and it would be a mistake if it did. European institutions will help but this is a Maltese problem and it needs a Maltese solution, one that the Maltese people can own. The Maltese people can get through this even stronger and prouder than before: 1565, 1942, 2019.