Of inquiries and reports

There is an urgent need for a truly independent and fully autonomous judiciary, imbued with investigative powers of its own

2 March 2017, 8:06am
The PANA committee expressed bewilderment at the fact that the police had not yet investigated what it described as a ‘potential money laundering’ case
The PANA committee expressed bewilderment at the fact that the police had not yet investigated what it described as a ‘potential money laundering’ case
Since taking office in March 2013, Prime Minister Joseph Muscat has rightly ordered inquiries into a number of events and mishaps that have dogged his government. The Sheehan shooting incident, the Gaffarena expropriation, the CapitalOne revelations, allegations concerning the Bogdanovic arrest... all were the subject of inquiries led by respected retired judges. In some cases, the inquiries even led to high-level political resignations. An enquiry has also been ordered into the allegations of political interference in a Gozo drug case, reported by MaltaToday at the weekend.

This is commendable, but the Prime Minister has so far failed to hold any inquiries over Panamagate, and the accusations levelled at Evarist Bartolo’s canvasser at the Foundation for Tomorrow's Schools. In addition, Alternattiva Demokratika chairperson Arnold Cassola has said that PANA committee members were angered at the fact that the Financial Intelligence Analysis Unit last year flagged 28 cases: none of which has so far been investigated.

This is worrying, because it suggests that the government retains too much discretion to simply pick and choose which cases to investigate, and which to ignore. More so because the choices themselves indicate a marked reluctance to investigate scandals which involve key figures in Muscat’s cabinet. Furthermore, there seems to be considerable reluctance on the part of supposedly independent institutions to act independently, when it comes to investigating politicians.

Separately, it also exposes a legal lacuna within our system of checks and balances. On paper, the separation of powers principle decrees that the institutions responsible for holding the government to account should be left free and autonomous to undertake investigations on their own initiative.

Unfortunately, however, this does not seem to be the case. The police and the office of the Attorney General (which together comprise Malta’s public prosecution office) very rarely take initiative and investigate matters without ‘orders from above’. Even the fact that Muscat recently stated that the police was ‘free to investigate’ seems to point in the opposite direction. Like the government, the police should not be free to pick and choose which cases to investigate. There is an obligation to investigate that is clearly being ignored in certain cases... and Muscat’s statement only underscores the anomaly.

This was highlighted by the PANA committee, which expressed bewilderment at the fact that the police had not yet investigated what it described as a ‘potential money laundering’ case.

Even when such investigations do take place, the current rules of engagement allow the Maltese government to decide whether or not to publish the results. The FIAU, for instance, did investigate the Panama Papers revelations. But its findings have to date been withheld.

Two observations arise from all this. In the short term, Muscat’s government needs to adopt a consistent approach to scandals and allegations concerning corruption or malfeasance. Its handling of the aforementioned cases has to date been arbitrary and inconsistent: there cannot be one rule for (relatively minor) issues such as the Sheehan incident, and another for a minister facing serious money laundering allegations. 

It is already bad enough that Muscat retained Mizzi in his Cabinet, and even appointed him to chair the EU’s Energy Council – shocking MEPs in the process – but by refusing to order inquiries into these cases, he is also reinforcing the perception that his government has something to hide.

This in turn points towards a longer-term solution to the problem. Clearly, there is an urgent need for a truly independent and fully autonomous judiciary, imbued with investigative powers of its own, in order to avoid any suspicions that politicians put partisan interests first, or (even worse) use such inquiries to further their own narrow, partisan interests.

It is not enough for the wording of the Constitution to imply that the Maltese judiciary is independent. The legal tools to operate independently must also be placed at the judiciary’s disposal. This is already the case with non-political issues: duty magistrates, for instance, can independently launch enquiries into crimes such as murder, robbery, assault and battery, disturbance of the peace, and so on. It is absurd and contradictory that magistrates are seemingly not empowered to also investigate serious crimes such as money-laundering, when these involve Cabinet ministers or other sensitive political roles. 

An independent judiciary should have no need to get a go ahead from a politician to initiate such investigations. Indeed, the very notion is bizarre and directly undermines the independence of the judiciary.  

The separation of powers is essential for democracy to function; but currently it cannot be guaranteed under the present system. What is needed is a far-reaching reform to fill in the holes in our Constitution.

Among many possibilities are a revision of the laws governing the judiciary, to ascertain full and practical autonomy. The duty magistrates system should be improved to equip magistrates with the necessary tools to investigate all crimes equally. 

Moreover, citizens should be empowered by being allowed to register their complaints directly with magistrates. This will ensure that magistrates do not only act upon order of the police... another grey area where the separation of powers seems to stutter.

Lastly, there has to be an obligation to make at least the basic findings of any inquiry public. You cannot have full accountability without equally full transparency.