WhatsApp, Robert?

“Do you communicate with judges via WhatsApp?” Prime Minister Robert Abela was asked by journalists after the damning revelations by sitting judge Lawrence Mintoff. Squirming uncomfortably, Abela dodged the question: “I am surprised that this question was not put to Joe Giglio.”

Perhaps that’s because no sitting judge released a sworn statement declaring that Giglio communicated with him via WhatsApp. Maybe because Giglio is not the Prime Minister. Maybe because Giglio has no executive power.

After Abela spent a full five minutes rambling on in a futile attempt to evade that key question, the reporter took another chance. “Can you explain the WhatsApp issue to me, please? Were there conversations via WhatsApp with Judges in general?”

This was a simple yes-or-no question. Honest people of integrity have no problem giving a direct answer. Those who have much to hide slither out of it. “Who started the WhatsApp conversation, or who didn’t, I will be explaining to the Standards Commissioner,” was Abela’s non-answer.

But Abela was not half as clever as he thought he was. In that foggy answer, he indirectly admitted he had communicated via WhatsApp with a sitting Judge. The question was never who started the WhatsApp chat. The question was whether Malta’s Prime Minister had been communicating with sitting judges through a secretive private messaging service.

That should never happen in a democracy. Secret communication between the Prime Minister and a sitting judge, irrespective of what the topic of conversation is, is an absolute no-no. Such secret communication shatters the sacred tenet of the Constitution, which is the separation of powers.

Even the perception alone that Abela can communicate secretly with sitting judges destroys any faith in an already distrusted judicial system. For the Prime Minister to communicate via secret messages with a sitting Judge raises concerns not only about actual or perceived influence and the appearance of favouritism, but also raises serious doubts about impartiality in current or future cases.

Modern democracies survive on the distinct boundaries between the Executive, led by the Prime Minister, and the judiciary. That communication between Prime Minister Abela and Judge Mintoff via WhatsApp doesn’t just blur those boundaries, it torpedoes them into smithereens, especially when the Judge was trying to get Abela to suppress the publication of a book because of dark allegations about members of his own family.

Abela can hardly deny communicating with Judge Mintoff via WhatsApp. We’ve seen Mintoff’s sworn statement regarding those WhatsApp messages. Who started them doesn’t matter. What matters to the public is that a Prime Minister and a sitting Judge had no qualms communicating secretly behind the public’s back.

Nobody knows what was discussed in those messages. If it were anything like what was discussed in person between Abela and Mintoff, we know that they were discussing partisan politics, the pressure of Party diehards on the Prime Minister, Abela’s petulant partisanship and his intentions to harm the Opposition Leader. Pejorative comments about the previous Chief Justice Joseph Azzopardi, and the Prime Minister’s political strategy of delaying the Chief Justice appointment until after the general elections were also laid bare.

Of course, there may be other issues discussed over the secret messaging service.

Mintoff must have taken screenshots of those messages because they may have been deleted by the sender, and their very existence might be denied. Those messages aren’t archived, they can’t be scrutinised, and the Standards Commissioner won’t have access to them.

In proper democracies, any communication between a sitting Prime Minister and a sitting Judge should be recorded, conducted through formal channels and handled by intermediaries – the Chief Justice, the justice ministry or court administrations. There should be written records of such communication, and legal advisers or clerks should be present during meetings.

Nowhere in the civilised world is it remotely acceptable for the Prime Minister to be communicating secretly with sitting Judges, behind the people’s backs. Even if those conversations were entirely benign, potential doubts and suspicions would be sufficient to undermine the public’s trust in the independence of the judiciary.

Neither is it remotely acceptable for a sitting Prime Minister to send for a sitting Judge to speak to him privately because “we need to talk”. Such conduct is clearly improper. It clearly violates both judicial codes and executive rules on ethics.

The bottom line is simple. A Prime Minister should never communicate privately or secretly with a sitting Judge, especially via secretive messaging apps, even if the message is benign, even if no legal cases are discussed and even if no influence is intended. But Abela needs this explained to him.

His behaviour has irreversibly damaged public confidence, risked judicial independence and violated constitutional norms.

Robert Abela is either profoundly dumb or malignantly devious. He admitted three times: “I met Judge Mintoff… as I had the right and duty to do.”

“It is natural to speak to those you intend to nominate (for Chief Justice) and to those who showed interest, but you don’t intend to propose to give them an explanation why,” Abela told journalists.

“Do you not perceive any breach of ethics?” a journalist asked. Abela’s unbelievable reply was, “Absolutely not… It’s not only not a breach of ethics, but it is the correct execution of our statutory obligations”. Abela has no clue about the duties of a Prime Minister.

“Couldn’t you have spoken to the Chief Justice?” Abela was asked. “If I did that, I would be failing my duty.”

When questioned on whether WhatsApp was the best form of communication on such a sensitive issue, Abela stressed again that he had met Mintoff personally. He insisted his words were being twisted.

There was no need. Abela had twisted them beyond recognition all by himself.