Essence de Kink

There is a particular perfume reserved for Joseph Muscat. Whatever happens, his faithful insist that he smells of roses. The rest of us are expected to disregard the underlying odour and admire the packaging.

The latest opportunity to uncork the bottle concerns Miroslava Milenovic, the expert whose work formed part of the Vitals hospitals inquiry. As reported by the Times of Malta, Judge Consuelo Scerri Herrera has overturned the earlier decision rejecting Muscat’s attempt to force police action against her, directing the police to take the necessary steps.

Before anyone orders the commemorative merchandise, a small inconvenience: Milenovic has not been convicted. Nor does the reported ruling establish that her financial findings were wrong, that she produced an improper report about Muscat, or that the case against him has evaporated.

You would imagine that these distinctions would be reasonably accessible to anyone with half a brain. Unfortunately, when Joseph’s reputation requires polishing, even that modest equipment seems to be placed in storage.

The court found sufficient preliminary grounds for criminal proceedings. That is a meaningful decision, and the police must act on it. It is also a very different thing from a finding of guilt after a trial. The reported reasoning expressly recognises that difference.

Muscat won this appeal. He did not thereby win an acquittal in the hospitals case.

Nevertheless, one can already smell the roses: the expert is a fraud, the inquiry is rubbish, Joseph was right all along. Each proposition requires a leap which the ruling does not supply. Fortunately for the faithful, evidence has never been necessary when enthusiasm will do.

There is also a substantial legal question beneath the noise.

Investigating financial transactions does not automatically amount to practising the regulated profession of accountant. Reading bank records, tracing payments and explaining a financial trail to a magistrate are activities whose legal character must be established by examining the work actually done. They cannot simply be bundled into a criminal offence because somebody has used the word “accountant”.

The Accountancy Profession Regulations identify reserved services, including certain financial reports, valuations and work on documents inviting public investment. They do not expressly list forensic financial investigation as a separate reserved service. There is a residual category for services prescribed elsewhere, so that observation is an argument, not a magic wand.

But it is a serious argument.

Maltese law’s rather primitive instinct to make the local warrant the beginning and end of professional understanding deserves scrutiny. A financial investigator does not become a Maltese public accountant merely because her investigation requires her to understand accounts. Otherwise we should start checking the warrants of police officers who have the impertinence to follow money.

Are there any?

The prosecution would also have to address the separate provisions concerning professional titles and representations. The Act reaches beyond the letters “CPA”: it also covers indicating entitlement to practise accountancy in Malta. That cannot honestly be ignored.

Equally, it cannot honestly be treated as an offence already proved. Precisely what Milenovic said, what she meant, what she did and how the law applies remain matters for the appropriate proceedings.

There is a wonderfully awkward footnote to this sudden devotion to professional purity.

Milenovic also worked on the Egrant inquiry which Muscat has repeatedly invoked as his vindication.

Apparently, the same expert’s work can be reassuring when it suits Joseph and intolerable when it does not. One awaits the precise legal doctrine explaining how professional competence rises and falls with the comfort of the person being investigated. Perhaps it is another Maltese speciality.

Whether or not the putative accused will even be extradited is a moot point, given the state of the law, but let’s not go there. For political purposes, an eventual trial is anyway beside the point. A headline can do its work long before a court hears a defence. An unresolved case can be kept on the mantelpiece and described as vindication whenever the need arises.

Muscat is entitled to challenge evidence and pursue a complaint. Milenovic is entitled to defend herself and to the presumption of innocence. Muscat has that presumption too. None of those rights gives his supporters a licence to manufacture a judgment which has not been delivered.

The question of her professional authorisation must be decided on its merits. The allegations against him must be decided on theirs.

The rose garden can wait.