Malta’s rusted wheels of justice have clanked and squealed their way to a decision, and Yorgen Fenech has finally been indicted for the murder we’ve all been reading about for nearly four years.
As luck would have it, the first name on the docket was Judge Aaron Bugeja.
Bugeja immediately recused himself, and rightly so. The evidence he heard during the carefully controlled magisterial inquiry into the Egrant affair has a direct bearing on the murder of Daphne Caruana Galizia.
Bugeja’s obedient toeing of the line that the inquiry’s architect Joseph Muscat set for him would also erode confidence in the impartiality of this trial. His immediate promotion to Judge looked too much like a reward to leave him with the necessary credibility to handle the nation’s most shocking murder trial.
Unfortunately, he isn’t the only candidate on the list with alarming conflicts of interest.
Fenech’s latest in an interminable string of bail requests landed in the lap of Judge Giovanni Grixti, who was appointed by Joseph Muscat in 2015.
Grixti’s greatest claim to judicial fame came when he blocked an inquiry that had been ordered by Magistrate Ian Farrugia into the key players involved in the Panama Papers scandal.
Grixti overturned Farrugia’s judgement on the grounds that the application for a magisterial inquiry filed by former Opposition leader Simon Busuttil contained allegations rather than evidence of crime.
How’s that for a legal Escher diagram? The judges can’t rule if the police won’t investigate, and the police won’t investigate because the judges won’t rule that they should. The only way to get anything to happen is to call for a magisterial inquiry. But it’s only possible to call for an inquiry by presenting the type of proof that the inquiry itself is supposed to find and preserve.
This was the circular logic contained in Grixti’s ruling. The result is a deliberate grey zone where clearly documented instances of corruption and money laundering remain ‘forever allegations’, and no one’s ever found guilty of anything.
Malta’s most erratic judge was at it again just nine months later.
In October 2019, Grixti protected The VGH Three by overturning a decision by magistrate Claire Stafrace Zammit for an inquiry into the role Konrad Mizzi, Edward Scicluna and Chris Cardona played in handing several of your hospitals over to known fraudsters.
His reason? Published investigations by journalists are not a suitable basis for starting an inquiry.
The inept Lawrence Cutajar tried that same excuse at the public inquiry when asked why he failed to act when the owner of Pilatus Bank slipped out the back door with what many believe was damning evidence confirming the ownership of Egrant.
“How can I go to the Attorney General when his advice was that there wasn’t an underlying criminal offence, but just writing on a blog?” Cutajar whined.
“When a blog gives you certain information which cannot be obtained except from the bank, you have circumstantial evidence,” Judge Mallia said. “This all pointed to one outcome, and you discarded it.”
It was a direct contradiction of Grixti’s justification for blocking the Vitals inquiry.
Was Judge Grixti making convoluted rulings to help conceal abuses of power by the government? Repubblika filed a letter of complaint to the Commission for the Administration of Justice to find out. Unfortunately, it doesn’t seem to have reined him in.
When Carmelo Abela’s name came up — again and again — in court testimony about a botched bank robbery, it was Judge Grixti who quietly informed the embattled minister that the police asked for access to testimony Abela had given behind closed doors during the compilation of evidence in 2011.
Abela had insisted he couldn’t remember ever testifying in a court case, but Grixti’s tip that the police were poking around caused him to change his tune.
Why did the judge give the minister 24 hours to respond, rather than simply hand the evidence to the police? It’s just one of many questions that should be raised about Grixti’s record.
This week he was asked to decide whether Yorgen Fenech should be let out of jail.
It should have been an automatic judicial procedure, given that the indictment was filed within days of the defence’s request. But Grixti sat on his decision overnight, fuelling speculation over whether the controversial judge was wondering how he could justify granting bail to a man who clearly tried to escape in the night when it became clear his connections were no longer protecting him.
Was it safe to release a man who allegedly ordered an arsenal of firearms, silencers, grenades and poison from the dark web using multiple Bitcoin wallets after being exposed as the owner of 17 Black?
Could we expect interference from a man accused of hiring hitmen to eliminate the journalist who was exposing his corrupt ties to politicians, and to the power station deal he had staked so much on — and who would presumably have even more incentive to kill the witnesses testifying against him?
Could a man with ample resources to flee the country in favour of foreign exile be trusted to show up and face a possible life sentence?
How long would it take you to make up your mind?
The law prevailed, and Fenech was denied bail — but only after it was revealed that Grixti bought a 50-foot yacht from Yorgen Fenech’s father, George, in 2008 when he was still a magistrate. Grixti was apparently a family friend and met Yorgen’s uncle Ninu regularly up until 2012.
Yorgen Fenech will be tried by jury. The presiding judge has enormous influence over how that trial will be conducted and what the jury is allowed to hear.
On 2 June 2019, Inspector Keith Zahra testified under oath that the accused mastermind gave four statements to police shortly after his arrest.
According to Zahra, Fenech said three other individuals knew of the murder after it happened, including former prime minister Joseph Muscat, who he spoke to twice about the killing. He said Keith Schembri contributed €85,000 to the plot and passed him information about the investigation, including a warning that his phone was tapped.
Fenech wants to block this information from being used at his trial. His lawyers claim admitting it would be “unfair” because Fenech was trying for a presidential pardon at the time, and police promised they wouldn’t use what he said against him if his pardon was denied.
It will be up to the trial judge to decide whether allowing this evidence would breach Fenech’s right to protection against self-incrimination, as the defence is arguing, or whether it should be heard because Fenech had been cautioned upon his arrest and assisted by his lawyers.
Will Fenech take everyone else down with him, as he said to his doctor, Adrian Vella? Or will those who have an interest in keeping this canary from singing manage to orchestrate yet another miscarriage of justice?