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raphael_vassallo
Raphael Vassallo

The mills of God grind slowly...

The 'mills of Maltese justice' also grind slowly. There is, in brief, no guarantee that justice will actually be served, no matter how long the wait

raphael_vassallo
Raphael Vassallo
7 November 2017, 7:20am
...though according to the same proverb, they also ‘grind exceeding small’. So while it may take an eternity for the Creator of Heaven and Earth to deliver Universal Justice... when He does get round to it, you can rest assured His adjudication will be final, absolute and flawless down to the tiniest of details. 

But that’s just Him. And it helps a little that He is also ‘omniscient’, ‘omnipotent’ and ‘infallible’ in every way... not to mention an embodiment of ‘infinite goodness and mercy’. I mean, with credentials like those... you can’t really ever go wrong as a judge, can you?

Sadly, however, down here in the non-celestial dimension ‘omniscience’ and ‘infallibility’ are in rather short supply at the moment. (The situation regarding ‘omnipotence’ is slightly different, but I’ll come to that part later.) The ‘mills of Maltese justice’ also grind slowly... very slowly indeed, at times... but unlike the case with Divine Justice, we don’t have the luxury of blind, dogmatic faith in the eventual precision of their grinding. There is, in brief, no guarantee that justice will actually be served, no matter how long the wait.

I suppose it’s the same everywhere: after all, the institutions we are talking about in Malta right now – the police, the attorney general’s office, the law-courts, the various regulatory authorities, etc – are all human contrivances; and therefore, by definition, fallible. 

"How do we even justify our national tendency to pick and choose which cases to investigate, which to ignore... and which to simply keep dragging out indefinitely?"
But there seems to be a consistent pattern in their fallibility. That, I believe, lies at the heart of the current malaise with Malta’s institutional set-up. It’s not so much that the institutions themselves do not function at all... in which case, the rule of law will really have collapsed; or that they do not function perfectly... which is a slightly unrealistic expectation anyway. It’s more that they cannot be trusted to function properly... or even for the right reasons. And while the time factor only adds to the frustration, it also sometimes serves as an indicator of precisely why our institutions are often so unreliable in practice. 

Some cases take years, if not decades, to reach closure; others are investigated, prosecuted, tried and determined in record time. At this point, no one will be surprised to discover that what sets those two patterns apart, in most cases, is the extent to which the outcome may affect the powers that be.  

When I sat down to write this article, I drew up a very quick mental list of past criminal cases which were ‘questionable’ for this very reason. I’ll mention a few random instances: on the eve of the 2008 election, AD chairman Harry Vassallo was served with an arrest warrant for failing to present VAT receipts (of a company which had been inactive for years). The warrant itself had been issued five months earlier. Yet the police chose to act on it only during election week.

A few years later, in 2012, a Sliema bar owner by the name of Chris Engerer was arrested for drug possession, just four days after his son Cyrus had resigned from the Nationalist Party and publicly switched his allegiance to Labour.  Interestingly, the charge sheet specified drug possession ‘over the preceding five years’. 

Neither case may be earth-shattering in itself; probably even less so, in the context of a claimed ‘melt-down’ of the rule of law. But I mentioned those examples (and not, say, the 1986 frame-up of Pietru Pawl Busuttil, which at its heart revolved around the same issue) because it is very often the smaller cases which reveal the sheer strength of the grip of politics on the justice system. Heavy-handed measures only seem that much more draconian, when applied to smaller fry (especially when the bigger fish are ignored).

Besides: even at a glance, you can see they have a certain something in common. In both those instances, the police could easily have made arrests a good long while before they did: five months in Vassallo’s case, five whole years in Engerer’s. But by a strangely persistent coincidence, they chose to time their actions in a way that suited a certain political interest.

It bears mentioning that both cases took place under a Nationalist administration (which, on a separate level, had almost 25 years to institute the necessary institutional reforms, etc.). But that, I greatly fear, is unhelpful at this stage. Labour came into power in 2013 precisely on the strength of a promise to make those institutional changes. And not only did they fail to do so; but the above-mentioned pattern simply continued where it had left off... only occasionally applied to much more serious crimes which may indeed rightly be considered ‘earth-shattering’.

"What is needed is to demonstrate that the law enforcement agencies of this country are empowered – and willing – to take action in ALL cases"
In 2016 alone, the Attorney General reportedly ignored 28 suspicious cases flagged by the Financial Intelligence Analysis Unit. And just last month, the Chief Justice warned that: “The AG is vested with the authority to prosecute persons against whom evidence is produced. If the police, however, fail to look for, collect and preserve the evidence as required by law the AG will have nothing on which to proceed. For certain serious offences the AG was given certain investigatory powers, and where the police fails to act, the responsibility therefore falls on him.  But if no action is taken then once again justice cannot take its course.”

For, of course, the pattern works both ways. Just as Malta’s law enforcement capability can suddenly spring into action without warning – but only, it seems, when it serves the government’s interest – it can just as easily lie dormant for as long as it benefits the same agenda. In fact, it is what we can only expect to happen, when the institutions we rely on for justice view themselves as guardians of the status quo.

It is partly for this reason that I was automatically suspicious when reading about the arrest of John Dalli’s two daughters over money laundering and fraud this week.

According to press reports, the police had been sitting on those money laundering and fraud charges for two years before finally deciding to proceed. Naturally I won’t go into questions of ‘innocence’ or ‘guilt’ at this stage; but I can’t help noting that the pattern so far is identical.

It strikes me as more than mere coincidence that the arrests were made just days before a scheduled visit by EP President Antonio Tajani... who has been calling for an ‘international investigation’ into the state of the rule of law in Malta for the past two weeks.

Elsewhere, doubt has even been cast even on the charges themselves. To quote the same newspaper report: “Sources questioned the money laundering charges against Mr Dalli’s daughters, filed at a time when Malta is under increased international pressure to stop laundered funds filtering through the island. Fraud charges had been prepared against Mr Dalli’s daughters, yet prosecutors had seen no scope for money laundering charges, the sources said. [...] ‘The inclusion of money laundering charges against the Dallis looks purely like a headline-grabbing exercise.’”

If the implications weren’t so serious, it would make for a good comic sketch. It reminds me of a desperate, last-minute clean-up of the barracks before a ‘surprise’ military inspection. Having ignored the mess for so long, everyone suddenly springs into action, in the hope that the inspectors find as little to object to as possible...

But what do they clean up? The 28 un-investigated cases of possible money-laundering, all of which were brought to the authorities’ attention two whole years ago? Or just any old money laundering case – which might not even be a money-laundering case, it seems - they might have been keeping up their sleeve anyway, just waiting for the critical moment to press charges? 

This doesn’t look very ‘reassuring’ to me. How do we even justify our national tendency to pick and choose which cases to investigate, which to ignore... and which to simply keep dragging out indefinitely, in the hope that they might one day become politically ‘useful’?

That is the question we need to answer, if we are really to convince the world – for such the matter has now come to – that ‘the rule of law’ is indeed as ‘supreme’ as the Prime Minister said it was on CNN. And it will take more than just a few random money laundering charges here and there to answer it.

What is needed is to demonstrate that the law enforcement agencies of this country are empowered – and willing – to take action in ALL cases, not just the hand-picked ones. It applies to the police, who (as already noted) seem to sometimes pick and choose when or if to enforce arrest warrants. It applies to the Attorney General, who seems to somehow lose interest in pursuing cases which may be embarrassing to the current government. It also applies to Malta’s numerous regulatory bodies: the PA, for instance, which always feels justified in ‘fast-tracking’ public projects... or private projects involving people with political connections... while adopting a heavy hand with everyone else. 

To be fair, I’d say it applies a lot less to the law courts themselves. Their mills do indeed grind at a snail’s pace, but on the whole the judiciary has proved more resilient to the corrupting influence of politics than other institutions I can think of.  Certainly they have been known to rule against the government whenever necessary: regardless – as far as I can see – of who’s in power at the time.  

But to get to court, a case has to be first investigated and then prosecuted. And if, as the Chief Justice reminded us, this does not happen in practice... there can be no justice at all.

Clearly, then, the law enforcement institutions do need a very urgent reform: but the focus of the reform has to be on maintaining the delicate balance of power among the various arms of the state. Certain demands made in the wake of the murder of Daphne Caruana Galizia seem to overlook this. As I pointed out in another article, the ‘two-thirds majority’ guarantee is around the last thing we should be demanding at this stage. It would strengthen, not weaken, the hold of the political class on those agencies. 

And this is what holds the justice system back, more than any of its own internal shortcomings. It is the ‘omnipotence’ of the political class – not the ‘omniscience’ of our national institutions (which is in any case an impossibility to aspire to)  – that we should really be focusing on... if we really do want to salvage what we can of the rule of law in this country.

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