‘What we’ve got here is failure to communicate…’

Some of you might recognise that as the intro to a rather famous rock 1990s anthem by Guns’N’Roses… though film-geeks like me will be quick to point out that it was actually lifted from the 1967 movie ‘Cool Hand Luke’, starring Paul Newman; and that…

But, whoah! Let me not start this article with a digression. Point is, ‘failure to communicate’ is precisely what’s we’ve got going on here in Malta, right now.

It is the reason for those criminal charges filed by Repubblika against the Prime Minister and the AFM last Friday… as well as for the disproportionate reactions this initiative provoked on either side of the political divide.

It also accounts for the fact that – even as I write this article – the same NGO has now changed its version of events (and with it, the entire nature of their own criminal complaint)… but most seriously of all, ‘failure to communicate’ is also the reason why we will now probably never get to the bottom of exactly what happened, out in the open sea, on Thursday 9 April 2020.

Let’s start with the allegations themselves. On 9 April, the NGO ‘Alarm Phone’ tweeted that a dinghy carrying 70 passengers had been sabotaged by crewmembers of an AFM patrol boat, in Maltese territorial waters.

The exact words were: “The 70 people in distress near Malta called us moments ago and said: We have an emergency here. Malta military came and cut cable of motor. Water is in the boat. Malta military said ‘I leave you to die in the water. Nobody will come to Malta’.”

The following day (April 10) the same allegation was reported in the New York Times; and the day after that, it was reported locally that “the Prime Minister’s Office has refused to flatly deny a reported clash between AFM soldiers and migrants”; and that “an AFM spokeswoman said she had no comments to make.”

It was only on 16 April – i.e, a week after the allegation was originally made – that the Maltese government finally responded in any official capacity: claiming that: ‘“The boat in question had already been in distress for a number of days while in Libya’s Search and Rescue Area, not in Malta’s SAR”; and that - when the boat did eventually drift into Malta’s SAR – “Malta immediately followed the established coordination procedures […] and the AFM called nearby vessels to assist.”

Later still, it was confirmed that the vessel was indeed rescued in Malta’s SAR zone, and brought here by the same AFM patrol boat accused of sabotaging it. The 66 (not 70) passengers are now being quarantined here in Malta.

Meanwhile, Repubblika filed its criminal charges on the same day – 16 April - that the government issued its own version of events: in other words, a week to the day after the incident was alleged to have taken place.

And I’ll stop there for now, because already there are multiple communications failures staring us in the face at all levels.

For the sake of both fairness and chronology, it must be said that the first mistake was actually made by The New York Times: which (as so often happens here) rushed to print with an allegation from a single source, without contacting either the Maltese government or the AFM for their side of the story.

From this, it follows that public opinion would automatically divide along entirely predictable lines. Anyone with an agenda against the Maltese government (a category which obviously incudes Repubblika) would eagerly lap up the allegation as unquestionable fact… while ‘the other side’ of the equation would just as predictably assume the opposite, and instantly rally to the defence of both government and the Armed Forces.

I need hardly add that both approaches are equally flawed… and for the same reason, too. But I’ll take them one by one: starting with Repubblika’s handling of this sorry situation.

The main flaw is most clearly visible in the press release last Sunday: in which it assumed that “the horrific silence since reports of the alleged incident” amounted to a “tacit admission of guilt” on government’s part.

By now, you will no doubt have read that the same NGO yesterday submitted fresh evidence (in the case it had initiated itself, please note), which suggests that the act of ’sabotage’ may actually have been “a standard procedure in rescues of this type to ensure the safety of all parties involved”.

In other words: two days after pronouncing ‘guilt’, in no uncertain terms, in a case involving the attempted murder (by AFM personnel) of around 70 people at sea… they themselves seem to be suddenly suggesting that the ‘crime’ in question may not even have taken place at all.

So… where, exactly, does that leave their earlier accusation of “tacit admission of guilt”? Is this not a classic case of deciding guilt beforehand… and then expecting the law-courts to confirm a verdict that has already been handed down?

Even before this latest development, however, there were other indications of recklessness on Repubblika’s part. In that same statement last Sunday – i.e., two days after the police report was formally made - the NGO offered to drop its charges against those 12 AM members… if the government announced a magisterial inquiry into the matter (as they separately – and rightly, this time - argue it should have done from the outset).

However, it turns out that this is not a call they can legally make themselves: apparently, once a police report is filed, it is up to the Police Commissioner – and not the entity who filed it – to decide whether or not the case can be dropped.

But that’s just a legal technicality.

Personally, I am more interested in the fact that Repubblika chose to directly initiate proceedings of a criminal nature, on the basis that government had not ordered any form of inquiry into the incident – instead of, say, filing a Constitutional request for a magisterial inquiry themselves (as the Caruana Galizia family had done, in connection with the Daphne Caruana Galizia murder case, in April last year.)

To put that another way: people generally press criminal charges on the basis of crimes they have good reason to suspect actually happened (most commonly, because they are themselves the victims). And while the law does permit third parties to report crimes in which they are not directly involved… it normally happens only in cases where there is similarly reasonable conviction (e.g. by a witness to the crime).

In this case, however, Repubblika claims to have been motivated by ‘the lack of any investigation’… and yet, instead of availing of the existing legal means to force an investigation to take place… they simply pole-vaulted to the part where the investigation had not only already happened (in their own minds, naturally)… but also yielded enough evidence to warrant a criminal prosecution in the first place.   

Sorry, but that’s a subversion of the usual judicial procedure. There should first be an inquiry… and if any criminal procedures follow at all, they should be based on that inquiry’s findings (and not on the basis of mere suspicion alone).

Repubblika, of all people, should know this: after all, it defines itself as a ‘rule of law NGO’. So to me, the overzealousness it displayed in jumping straight to the criminal prosecution part – omitting all the inconvenience of actually investigating the allegations beforehand – only betrays the fact that…

... well, let me rephrase what I was about to say. At the end of the day, it only confirms, beyond any real shadow of doubt, what we all already knew anyway: i.e., that Repubblika’s motives in this case are not exactly ‘genuine’… and I’ll leave it at that.

Nonetheless… these and other mistakes do not exempt either the government or the AFM from their own responsibilities in this matter. Whatever else it got wrong, Repubblika is still perfectly right about at least one thing.

Government should indeed have initiated a magisterial inquiry of its own accord… but didn’t, for reasons that have never been explained.

And as for the AFM: despite finding itself on the receiving end of such calamitous allegations – and having a press communications office of its own – to date, it has still not issued any form of official clarification whatsoever.

This might not – as Repubblika has unwisely argued – amount to an ‘admission of guilt’… but it certainly does amount to a serious institutional failure in its own right.

It suggests that government chose to disregard not only the allegation in itself… but also the due legal process that it should have triggered: sending out the message that this government clearly considers itself to be above and beyond all external scrutiny… even when it stands accused of the most heinous crimes under the sun.

So even if the motives were entirely dishonest, and the case itself was so inexpertly handled that it is now seems destined to just shrivel away into nothing… we should, at least, be thankful that the matter even got to be investigated at all.