[ANALYSIS] That other Malta: ‘rule of law’ dossier to MEPs that gives history short shrift

Appointing magistrates and judges has always been a matter of public debate each time a new appointment is made.

For decades, various voices have called for a more transparent method that removes the total power of appointment vested in the Prime Minister by the Constitution.

Part of that criticism was addressed in the last legislature when a new judicial appointments body was created to scrutinise candidates and give advice on their suitability.

The new body, however, does little to address the perception of political favouritism created by some of the appointments made to the Bench.

A history of political appointments

The Labour administration since 2013 appointed 15 people to the Bench; 11 of these were in some way or another linked to the party in government, a practice no different to that of the past.

‘Political’ appointments to the Bench have been around for ages and the subject of criticism long before the current spate of public activism on the rule of law. Malta had a chief justice, Gogo Mifsud Bonnici, who was the brother of a minister – Ugo Mifsud Bonnici – back in the 1990s.

Whether such appointments are wrong will always be a subjective argument in a small country where everyone is given a political label but the dossier, prepared by unnamed authors, creates the impression that the system came into being four years ago.

Judge Wenzu Mintoff’s first decision was a ruling against the government that was contesting the Ombudsman’s remit to look into complaints by soldiers

Despite the controversy surrounding such ‘political’ appointments, many in the legal profession concur that the individuals concerned have invariably risen up to the challenge and acted with impartiality.

It must be noted that Judge Wenzu Mintoff’s first decision was a ruling against the government that was contesting the Ombudsman’s remit to look into complaints by soldiers.

It is this lack of context that exposes the intention of the authors of the Caruana Galizia report to draw up a lengthy missive of Muscat’s demeanours rather than an honest assessment of failings or questionable practices that have been around for decades.

Few of the young people carrying placards and calling for justice would know that Malta had, in the past, a prime minister who was found guilty of breaching human rights by the constitutional court. And it was not a Labour prime minister.

Few would know that two police officers found guilty of breaching human rights under a Labour administration in the 1980s had been promoted to higher ranks by an incoming Nationalist administration after 1987, only to be removed from the police corps by the 1996 Labour administration.

The document is mostly a collection of information titbits from various media outlets, including extensive references to blogs on Caruana Galizia’s Running Commentary.

But another instance that belies the narrative that underpins the report is the reference to The Sunday Times of Malta columnist Michela Spiteri, who was appointed as an adjudicator to the Small Claims Tribunal.

Her sins include editing government documents – something she used to do under the previous administration as well – and “writing pro-Labour Party newspaper columns”.

The inclusion of the latter statement unmasks the underlying belief of the document authors that anything pro-Labour is by default ‘bad’ – a belief held by the late Daphne Caruana Galizia.

The document provides more sober reading when it tackles the Attorney General in that it acknowledges that “no AG in Malta has ever acted against the instructions or interests of the Prime Minister of the day”.

The report argues that Attorney General Peter Grech has refused to use the powers vested in him by the Prevention of Money Laundering Act to initiate a criminal investigation against politically exposed persons.

Grech has offered an alternative legal interpretation of his powers, which is absent from the report.

This does not mean that Grech has no explaining to make. It appears that his replies and those of the Police Commissioner to questions on their legal remit when investigations are concerned even confounded MEPs.

The President and big business

With the people: President of the Republic Marie Louise Coleiro Preca is however portrayed as being ‘close to the business’

The President does not emerge unscathed from the report but an untrue picture is presented when reference is made to a pardon given to the Labour mayor of Zurrieq, Ignatius Farrugia, in 2016.

The report makes it seem like the President used her discretionary power to pardon Farrugia, who had been condemned to four days in prison for harassing Daphne Caruana Galizia.

The truth is that the judge who presided over the Appeals Court admitted making a mistake and immediately petitioned the President to grant Farrugia a pardon. No discretionary power was used.

The report does make a pertinent observation that the President’s charity work on behalf of the Community Chest Fund brings her into close contact with powerful business interests

The report does make a pertinent observation that the President’s charity work on behalf of the Community Chest Fund brings her into close contact with powerful business interests.

This is used to highlight a charity dinner the President attended at the controversial Montekristo Estates, which belongs to construction magnate Charles Polidano.

However, the truth is that every president has had such brushes with powerful business interests as a result of fund-raising activities for the Community Chest Fund. The practice is not unique to Coleiro Preca despite the report making it seem so.

Passports, the media and the Eurovision

Brian Tonna and Keith Schembri

In an extensive piece on the ‘Cash for Passports’ scheme, the report reiterates the high risk nature of such programmes in attracting money launderers and tax evasion.

It also reiterates the allegation emanating from an FIAU compliance report that the Prime Minister’s chief-of-staff Keith Schembri received kickbacks from Nexia BT’s Brian Tonna from the sale of passports. The accusation is now the subject of a magisterial inquiry requested by then Opposition leader Simon Busuttil earlier this year.

Under the heading, The Media, the report emphasises that Malta has no journalism school but then goes on to feed the general narrative of an all-pervasive government by suggesting that the “one journalism module offered at the University of Malta is taught by cabinet Minister for Education Evarist Bartolo and Adrian Hillman”.

The statement is factually incorrect because although Bartolo and Hillman are visiting lecturers, they are not the only ones involved in teaching journalism.

But the report also claims Schembri co-opted the Times of Malta and The Sunday Times of Malta through his connection with Hillman – an assertion strenuously denied by the newspaper editors – and MaltaToday through its managing editor, Saviour Balzan.

The report makes no reference to calls by MaltaToday for the resignation of Schembri and former energy minister Konrad Mizzi after their names surfaced in Panama Papers

Conveniently, the report makes no reference to calls by MaltaToday for the resignation of Schembri and former energy minister Konrad Mizzi after their names surfaced in Panama Papers.

The report calls Daphne Caruana Galizia Malta’s “only effective investigative journalist” and goes on to describe a VAT case against her as an “abusive tax investigation”. Caruana Galizia was contesting a €1.3 million tax assessment over unpaid VAT.

In a three-page appendix on Malta’s relationship with Azerbaijan – most of which is correctly built around information from Panama Papers and Paradise Papers – the report adds that in the Eurovision song festival Malta awarded Azerbaijan 12 points every year since 2010.

This is again incorrect but for the sake of the greater narrative it does not really matter to the authors.

Inter, Efimova and the PA

The authors felt it important to highlight the current Police Commissioner Lawrence Cutajar’s affiliation with Inter Supporters Club and his friendship with fellow Inter supporter John Zammit. The mention is deemed important because Zammit’s daughter, Claude-Anne Sant Fournier heads the legal and compliance office at Pilatus Bank (see clarification below).

The sentence immediately after this implies that Cutajar’s familiarity with Zammit was one of the reasons why he failed to act on compliance reports drawn up by the Financial Intelligence Analysis Unit on Pilatus Bank.

Former police inspector Jonathan Ferris (inset) and Commissioner of Police Lawrence Cutajar

In a critical part on the government’s failure to protect former Pilatus Bank employee, Maria Efimova – she was Caruana Galizia’s source for the story that alleged Joseph Muscat’s wife, Michelle, was the owner of Egrant – the report gets its chronology wrong.

While blaming the police for failing to prosecute against politically exposed persons flagged by the FIAU, the report says the police “prosecuted aggressively” the whistleblower from Pilatus, charging her with stealing cash.

What the report overlooked was the fact that the police charges against Efimova had been filed a year before the whole Egrant saga erupted, after the bank had terminated her employment. The report also fails to note that the police officer who prosecuted Efimova was Inspector Jonathan Ferris, the man who now claims to have damning evidence against public officials as a result of his time at the FIAU.

The section on the Planning Authority does acknowledge that land permits “have always been used for political patronage”, quoting statistics from the period between 1993 and 2016. It also correctly highlights the increased incidence of approval of projects in Outside Development Zones in 2016 and the weeks running up to the 2017 general election.

This part of the report is possibly the fairest rendition of a perennial situation that sees government dispense political patronage through building permits.

Turning a blind eye

Pilatus Bank chairman Syed Ali Hasheminejed: the private bank got a licence in 2014 and is believed to host various Azerbaijani businessmen and acolytes of the Aliyev ruling dynasty

The part dealing with the Malta Financial Services Authority and its chairman Joe Bannister is an extensive reference to two blogs that dealt with the licencing process of Ta’ Xbiex-based Pilatus Bank.

The document reiterates the allegation that Bannister and the Pilatus owners were chummy buddies, which is how the bank allegedly obtained its licence in 2014.

The report correctly notes that Bannister has been at the helm of the MFSA since 1999, specifically mentioning that he was appointed by former European Commissioner John Dalli.

What it fails to question is why Bannister was retained in the same role by different PN and Labour administrations after that, even when it transpired he was a director of several offshore funds held in the Cayman Islands.

But it appears the authors of the report had little interest in looking at events before 2013 – with the exception of John Dalli, who features prominently and has an appendix dedicated all to himself – or anything remotely to do with the PN.

When describing government’s appointees at the Central Bank of Malta, the report correctly outlines the links to Labour of Alfred Mifsud, a former deputy governor, and Mario Vella, the current governor.

But it simply describes the former governor Josef Bonnici as “a technocrat and professor of economics” without mentioning that he had been a PN minister.

The section on the police force gives a correct chronology of the five police commissioners that were in office since March 2013 when the Labour Party was elected to government.

Clarification

Contrary to what the dossier reported, John Zammit told this news portal subsequently he did not have any daughter by the name Claude-Anne Sant Fournier nor any daughter or relative who worked or works at Pilatus Bank.