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Leaks from inquiry on migrants’ deaths aided Prime Minister’s political attacks

Law courts
The Courts of Justice in Valletta, Malta.

An investigation by The Shift has found two media leaks in the course of a secret magisterial inquiry that allowed Prime Minister Robert Abela to build a nationalistic narrative to disparage civil society organisation Repubblika, and widen the attack on the Opposition.

First, information in a note filed in the secret court proceedings by Repubblika was leaked to a journalist within two hours. In the second leak, information on completion of the inquiry report was leaked at a stage when a report usually only leaves the magistrate’s chamber under seal on its route to the Attorney General’s office 200 metres down the road.

Evidence shows that the information was leaked – and an article about it written – before the report (proces verbal) was delivered to the Attorney General’s Office. The Shift wrote to the inquiring magistrate, Joe Mifsud, asking him to explain the second leak.

The Chief Justice answered instead, citing provisions in the code of ethics that bar members of the judiciary from commenting to the media, including on “matters which constitute or might constitute public controversy”.

Controversy has surrounded the inquiry since it started on 17 April, after two cases involving irregular immigrants – including 12 people who died after days adrift at sea awaiting rescue – led to allegations of homicide against the army chief, the prime minister, and the crew of a patrol boat.

The prime minister immediately hit back in a ‘press conference’ in the midst of the coronavirus pandemic in which he addressed the nation flanked by the entire Cabinet. He lashed out at Repubblika for trying to put “us in prison for life at a time when we have dedicated ourselves to work endlessly and with absolute dedication, day and night, for the sake of our country and our people”.

Abela also said that the involvement of MP Jason Azzopardi – one of four lawyers who signed Repubblika’s application – meant the PN was complicit. The press conference unleashed days of vitriol against Repubblika and Azzopardi on social media.

Then, four days later Repubblika filed the note with information that had emerged that showed that in one of the incidents, the seamen had performed an operation – technically called ‘kill switch’ – that was part of the repertoire of rescue procedures, and not an attempt to sabotage the boat as the migrants had alleged. The allegation had been made in a press release by the German-based NGO Alarm Phone and led to media coverage of the events in Malta and abroad.

Repubblika and its lawyers told The Shift that it had been agreed that the note would not be revealed to the media.

“I can confirm that none of us, or our lawyers, said anything to anyone about the note,” said Manuel Delia, speaking for Repubblika. “Yet two hours after the note was filed in court, a journalist contacted us with questions about that note.”

The note could have been handled by several court officials before it reached the magistrate. It is also not known whether the police received a scanned copy within those two hours.

Repubblika’s answers were included in the ensuing article about the leak. Upon publication, the Labour Party then issued a statement that conflated Repubblika and the PN in a bid to attack the Opposition Leader’s “credibility”.

It also pandered to nationalism by deploring those few who had launched attacks on army personnel who had saved many migrants at a time when national unity was needed.

The following Sunday the Prime Minister intimated, in an allusion to the note, that Repubblika had had an about-face when it realised that false reports bore consequences, including possible charges of calumny. He also appealed to nationalism by vowing to defend the army.

Social media remained ablaze with vitriolic attacks against Repubblika and Azzopardi.

Just over a month later, an article appeared that quoted “sources” saying the inquiry had been completed, and that the “lengthy” report, technically called the proces-verbal, would be handed to the Attorney General on Wednesday.

The article also quotes “sources close to the inquiry” saying that there was “‘a lot of activity’ around the Valletta courthouse on Wednesday morning once word that the inquiry had been finalised got out”.

Yet the proces-verbal is a confidential document, and no court employee other than the magistrate’s deputy registrar is supposed to see it. The inquiring magistrate sends it directly to the Attorney General via a messenger who is given a sealed copy. Moreover, most court activity was suspended due to the coronavirus pandemic at the time, so people could not have been hanging around.

In this sense, the description of much activity around the court by “sources close to the inquiry” implies it was intended to generate public anticipation and hype for the report by false narrative – no one can get copies of the proces-verbal from the court itself.

The sealed, confidential document is only sent to the Attorney General, and any of the involved parties wanting a copy would have to write to the Attorney General – and it would be the Attorney General’s discretion whether to provide a full copy, an abridged copy, or none at all.

In this case, the government published the proces-verbal after getting a copy from the Attorney General a few days later. The inquiry vindicated the prime minister: “The inquiring magistrate is convinced that everything possible was done to ensure that lives could be saved as fast as possible”.

Yet what is striking in the 419-page proces-verbal is its wide coverage of the issue of irregular immigration, including a poem as well as an excerpt from a speech by the president about abortion. Usually, magisterial inquiries are narrowly focused on preserving and describing any evidence of possible crime in a form that could eventually be used in a trial.

Magistrate Joe Mifsud was asked by The Shift whether the proces-verbal, which strays into detail that is relevant to a public discussion about immigration, was at least partly written for the media or public consumption, and whether he wanted to influence public policy by sending the report to two Ministers.

The Shift asked these questions on the basis that, although ordinarily barred from engaging with the media, the magistrate had thrust himself into media attention by the wide nature of the content and by overstepping the bounds of the law and ordering that copies be sent to two Ministers, as well as the extraordinary move of recommending the reinstatement of criminal defamation.

The Chief Justice answered by invoking the prohibition on judiciary’s engagement with the media pursuant to the code of ethics, especially in controversial topics.

In a separate case last summer, Mifsud was admonished by the Commission for the Administration of Justice for comments he had made in open court that strayed into controversy when handing down judgment. He had said that nets required by law after a judgment by the European Court of Justice were hurting some birds – a point that reflected trappers’ complaints about the legal changes.

The Commission had said that any remarks on public controversy might affect the perception of a court’s “impartiality”.

“The role of the court is to administer justice by deciding on the merits of the proceedings it has before it and to interpret the applicable laws in each case. Members of the judiciary should limit themselves to this and should not enter into, or express themselves, in relation to controversies that have nothing to do with the case before the court,” the Commission had pointed out.

In this case, Repubblika and, separately, the relatives of two of the victims have written to the Attorney General to highlight legal flaws and the incompleteness of the inquiry, asking him to send the inquiry back to Mifsud for further work.

Repubblika told The Shift yesterday that they have not had any reply to their letter after 10 days.

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