Do this, do that… but will Malta take heed of MEPs’ rule of law mission report?

MEPs from the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs came to Malta on a fact-finding mission last November.

The 36-page report of their visit was released last Thursday, giving a breakdown of the exchanges the MEPs had with various individuals summoned to appear before them.

The report makes some recommendations at a European level and includes a call for investigations by the European Banking Authority and the European Central Bank into the circumstances under which Pilatus Bank continues to hold a licence to provide services in the EU.

But the report also listed recommendations for change at a national level, starting with a call for the removal from public office of people linked to Panama Papers.

Below are some of the more salient recommendations.

Remove from office

Report: “Persons perceived to be implicated in serious acts of corruption and money laundering, as a result of Panama Papers revelations and FIAU reports, should not be kept in public office and must be swiftly and formally investigated and brought to justice. Keeping them in office affects the credibility of the government, fuels the perception of impunity and may result in further damage to State interests by enabling the continuation of criminal activity.”

What it means: Although Tourism Minister Konrad Mizzi and the Prime Minister’s chief of staff Keith Schembri are not named, the reference is clearly to them. The use of the word “swiftly” emphasises the position MEPs have expressed incessantly since the Panama Papers revelations in 2016, calling on Prime Minister Joseph Muscat to give the two men the boot. The argument that keeping them in office fuels the perception of impunity was the rallying call of the Nationalist Party in the last election.

Where to go: Muscat has played the nationalistic card by implying that any decisions he may take will not be dictated by Brussels. He knows that Maltese do not take lightly to ‘foreign interference’ and MEPs telling the government what to do will not go down well with a domestic audience. Opposition leader Adrian Delia has seemingly understood this as well by giving a measured reaction and asking the Prime Minister not to persist in “harming Malta’s reputation” by not acting. The likely outcome will see Mizzi and Schembri entrenched in their public office roles for the foreseeable future, unless any of the open magisterial inquiries lift the lid on some wrongdoing.

Separation of powers

Report: “Work is needed to ensure stronger checks and balances in the Maltese legislative framework to better separate powers and to limit possible interference of the Prime Minister in the judiciary and the media; an assessment of media pluralism and independence from political power should be conducted.”

What it means: MEPs are calling for legal and constitutional changes that ensure a better balance of powers. The reference to the media’s independence from political power may be a reference to the ownership of television and radio stations by the political parties but it could also be an outsider’s view of the highly polarised media environment.

Where to go:  MEPs have said what many in Malta have been calling for, long before the good governance spiel became the Opposition’s rallying cry after 2013. Constitutional reform to ensure separation of powers and stronger checks and balances have been on and off the agenda of every government for the past three decades. Unfortunately, efforts to reform the Constitution have always been scuppered because of petty partisan feuds. The reference to the Prime Minister’s interference in the judiciary does appear spurious since the appointment of judges and magistrates has been reformed over the past two years with the creation of a judicial appointments council set up by the Constitution. The Prime Minister does have the final say but the council carries out a vetting process and makes its recommendations. Further reform of the system could be contemplated but although constitutional reform has returned to the political vocabulary after Daphne Caruana Galizia’s murder, it remains unclear what the government has in mind. An attempt to create a constitutional convention in the last legislature failed to take off.

Split the AG office

Reform the Attorney General functions, to decouple the role of advisory to the government from the role of prosecution

Report: “Reform the Attorney General functions, to decouple the role of advisory to the government from the role of prosecution.”

What it means: MEPs feel the dual role the Attorney General plays in the Maltese legal set up posits a conflict.

Where to go: This recommendation had been made by former MP Franco Debono in the last Nationalist Party legislature between 2008 and 2013 but ignored by the government at the time. It was again reiterated by the Bonello Commission in a wide-ranging report on judicial reform in 2013. It remains unclear what the government’s position on this recommendation is but any such change will necessitate constitutional reform.

Choosing the police chief

The Police Commissioner should no longer be appointed by the Prime Minister but by an appropriate independent body

Report: “The Police Commissioner should no longer be appointed by the Prime Minister but by an appropriate independent body. Similarly, the veto power of the Prime Minister should no longer exist regarding the nomination of the Maltese Chief Justice.”

What it means: Reading through the report shows MEPs were not impressed by what Police Commissioner Lawrence Cutajar told them. The failure to adequately justify why the police did not investigate key government people following the Panama Papers revelations and the publication of leaked FIAU reports did not go amiss with MEPs. However, the report was careful not to call for Cutajar’s resignation, which has been the rallying call of civil society groups in the wake of Caruana Galizia’s murder. What the report suggests is removing the Prime Minister’s influence in the appointment of the police chief and putting this function in the hands of “an independent body”. MEPs also took care not to define what type of body they had in mind, fully aware that how police chiefs are selected is a national competence that is exercised in different ways among EU member states.

Where to go: MEPs did not endorse the PN’s stand to have the police commissioner appointed by a two-thirds parliamentary majority, opting for a non-committal ‘independent body’. The government has been reluctant to even acknowledge the need to change the system by which the police commissioner is appointed and how to ensure the police’s independence. The police force has for long been subjected to political influence – whether direct or indirect – and few believe this will change anytime in the near future. The quest for change may crop up in constitutional reform, if this gets off the ground.

Whistleblowing

Report: “The Whistleblower Protection Act should be revised to cover workers in the public sector. Mr Ferris should be granted police protection and serious consideration should be given to his application for protection under the Whistleblower Protection Act.”

What it means: The first observation is a suggestion to improve the law, which was enacted by parliament in 2013 when the Labour Party came to power. The second observation adds pressure on the government to offer protection to sacked FIAU officer Jonathan Ferris in the wake of repeated statements he has made fearing for his life after threatening to reveal all about money laundering investigations he carried out on people in government. MEPs are also piling pressure on government to ensure Ferris’s application for Whistleblower protection is acceded to.

Where to go: The process by which Ferris could be granted Whistleblower protection is dictated by law but he may face a tricky situation. Ferris’s former employment in an investigative authority and the involvement of the Attorney General, who chairs the FIAU – the unit against which Ferris has filed an unfair dismissal claim – could complicate matters. What Ferris wants to do with the information he has remains unclear. He has said that six people close to him have been entrusted to publish all information in his possession if he is killed. The extent of the information Ferris claims to have and how damning it may be is unknown. His former employment at the FIAU precludes him from divulging any information that may have come his way, which poses another complication. So far, Ferris has played a waiting game and is very likely going to continue doing so until his legal standing is clarified.

Cash for passports

Report: “The Maltese government should separately publish the list of persons being granted Maltese citizenship under the Individual Investment Programme and should start an independent assessment of this programme and of the anti-money laundering procedures applied to it.”

What it means: MEPs have reiterated their concerns about Malta’s sale of passports to wealthy foreigners but the recommendation stops short of calling for the scheme’s removal.

Where to go: MEPs who had strongly criticised Malta’s passport scheme in a plenary session in 2014 are fully aware that Malta is within its sovereign rights to sell citizenship the way it does. After all, Malta also obtained the European Commission’s endorsement in the wake of the European Parliament’s criticism four years ago. But MEPs have highlighted an important aspect that many in Malta have harped on – the publication of a distinct list of names of foreigners who purchased citizenship. Today, those names are intermingled with those of naturalised citizens in a bid to hide their identity. It is unlikely the government will yield to these demands, even if names of Malta’s new citizens have been outed by an observant media.

Special corruption unit

Report: “The Maltese government should start an action programme against corruption and financial crime and increase the number of investigations and prosecutions. This should include special units in police and judiciary with sufficient and highly qualified staff.”

What it means: MEPs realised that Malta’s ability to fight white collar crimes is limited by the dearth of human resources, apart from lack of political will.

Where to go: Hardly anyone could object to such a recommendation but there has been nothing yet to suggest that the police will be beefed up with highly qualified staff to probe financial crime.

Election probe

An investigation is needed over the alleged influence of elections through increased hirings in the public sector

Report: “An investigation is needed over the alleged influence of elections through increased hirings in the public sector, issuance of construction permits and regularisations of irregular constructions, as well as pay increases and promotions in the military.”

What it means: MEPs took on board the early criticism made by the PN soon after the election that tried to blame the massive election defeat on alleged political patronage. While the use of patronage is well known, an election victory of such a magnitude like last year’s can hardly be explained only on the basis of favours rendered to disgruntled voters. Calling for an investigation is as far as MEPs could arrive, even though their stand displays a lack of historic awareness on how political patronage has been dispensed in Malta.

Where to go: No investigation will be held and it remains unclear whether politicians will entertain legal changes to have a set electoral date and a public sector recruitment freeze in the run-up to national elections.