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Malta’s rule of law - Martin Scicluna

Photo: Jonathan Borg

Photo: Jonathan Borg

My last two articles dealt with the current state of Maltese politics in which I highlighted the hypocrisy and cant that drives the pseudo-political grouping calling for what they define as “truth and justice” in Malta following the assassination of Daphne Caruana Galizia.

The rule of law is fundamental to a civilised society. The fair, speedy and efficient administration of justice is central to any successful democracy. Malta has a long tradition of jurisprudence and judicial oversight. Although our administration of justice is slow, on the whole we have been well served by systems and individual judges and magistrates who have been independent-minded and independent of the State.

But three PN members of the European Parliament have shown no compunction about painting Malta as a country that does not respect the rule of law. Instead of representing Malta’s national interest abroad, they have sought to undermine it.

They have traduced Malta’s international reputation (while simultaneously staying silent about the undemocratic attack on the rule of law in Hungary by Fidesz, a party in the same political group as PN in the European Parliament).

It is perfectly legitimate to attack a country’s rule of law if the criticism is rational and grounded in evidence. But attempting to justify a notoriously poor Euro-parliamentary report, which MEP David Casa instigated and led in all but name, declaring it was “a political conclusion, not a judicial one… The evidence is… conclusive, politically conclusive” is not. 

Casa is unique in being a parliamentarian who is ignorant of the pivotal role of the rule of law in all liberal democracies. Tangible proof of wrongdoing, not politics, is one of the basic precepts of the rule of law. In Thomas Paine’s words “The law is King”, not politics.

But so far as Casa and his delegation of Euro-parliamentarians are concerned, the fundamentals of the presumption of innocence, the need for impartiality, the right to fairness – which should be at the very heart of any parliamentary report about the rule of law – can be ignored provided they think the evidence is “politically conclusive”.

I understand that Ana Gomez, the nominal leader of the Euro-parliamentary report, and her delegation, are returning to Malta shortly to see for themselves in the wake of the Caruana Galizia murder how the rule of law is being applied.

She may care to focus on three aspects while she is here: the speedy arraignment of the criminals who are strongly suspected of perpetrating the crime; the inability of the enquiring magistrate to get access to a potentially vital piece of evidence; and the progress on other magisterial enquiries closely related to the rule of law.

It is unacceptable that the Egrant enquiry, set up over a year ago, has still not delivered its findings

On the first point, while I utterly understand at a human level the reason why some political activists have raised Caruana Galizia to secular sainthood, it is unarguable that they have allowed emotion to sway their judgment. The fact remains that the Police Commissioner is to be congratulated for identifying and arresting so rapidly the criminals who allegedly committed this horrific crime.

Most people are convinced that behind the criminal hoodlums who have been arrested stands a “Mr Big” who commissioned the crime. Despite my constant carping against falling prey to conspiracy theories, I too happen to believe that this seems the most likely thesis. But I also firmly believe that we must allow the rule of law – the continuing police enquiries into the possible instigators of the crime – to take its proper investigative course.

The Maltese police force have already arrested the likely criminals. The search for “Mr Big”, if there is one, will take longer. And to say this is not to impugn Malta’s respect for the rule of law as some pseudo-political activists have alleged. This is an extremely complex murder case involving Europol and the police forces in many countries. It will take time, diligent detective work and good luck.

Nor should the Euro-parliamentary delegation allow themselves to be diverted by the political antics of a Maltese member of Parliament – a lawyer who is also acting parte civile for the family of Caruana Galizia – who has wrongly asserted, under protection of parliamentary privilege, that the suspects had been tipped off before their arrest and that the security service had been aware of a plot against her. The police and the security service have rightly condemned the MP for trying to vitiate the judicial proceedings.   But solving this crime will also take the wholehearted cooperation of Caruana Galizia’s family. It is unconscionable that – as far as we know (and perhaps this is part of a subterfuge to protect leads and maintain the element of surprise) – the police’s judicial request to the magistrate to hand over the vital evidence contained in Daphne’s laptop has not led to its transfer to police and IT experts.

While the need to protect journalistic sources remains paramount, it cannot be beyond the wit of the magistrate, the Attorney General, the family’s legal advisers and the police to find a solution to ensure normal investigative and judicial procedures are followed while protecting sources. Justice will not be served, and the rule of law will be jeopardised, if this vital piece of evidence is withheld. Indeed, it will also amount to a gross obstruction of justice.   

As to the ongoing magisterial enquiries, Gomez would be right if she were to complain about the length of time they are taking to be completed. It is a notoriously weak element in our judicial system. It is unacceptable that the Egrant enquiry, set up over a year ago, has still not delivered its findings. Other enquiries are being delayed by additional evidence being provided to them by those, including Casa, who have a direct interest in keeping the issue politically alive.

After her visit, Gomez should make no mistake that Malta is still a functioning democratic country, answerable to an independent judiciary under the rule of law. It is unacceptable that three Maltese MEPs and the posturing zealotry of an unrepresentative group of activists continue to poison the gullible minds of those in Brussels and Strasbourg, while failing the cause of the rule of law by not pressing for crucial evidence to be passed to the judicial authorities.

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