We are right, you are wrong, so there!

We are not clearly going to improve the system much, by simply digging our heels and insisting that all our critics are always wrong about absolutely everything

MEPs meeting Prime Minister Joseph Muscat at Castle
MEPs meeting Prime Minister Joseph Muscat at Castle

I may have a habit of reading too much into things, but I’m going through the Government’s official response to the European Parliament’s ‘Mission Report’ about Malta – which just came out about an hour ago, so it’s only a cursory flick-through for now – and... well... at moments, it almost reads like the Dictaphone transcript of an angry telephone-call: ‘Oh yeah? That’s what you said about me? Well, take THIS for a reply, you bunch of lousy no-good... (fill in with appropriate epithet of your choice)’.

There is an unspoken anger and indignation that just seeps through each paragraph.... an overwhelming sense of injured pride, of mortal offence, of... ‘NO FAIR!’

And I have to also say that... I’m loving every minute of it. So much more expressive (and entertaining) than the usual dead-pan tone you get in most official governmental communications. There is a satisfying ‘oomph’ to almost every other sentence. Try this one for size:

“1) The Report shows a fundamental lack of understanding as to the roles of the various institutions in Malta which it describes, how those institutions perform their duties and their powers under statute...”

Ouch! All that’s lacking is a final flourish: ‘So there, too!’... or ‘Rubber Jollies!’... or (my preferred choice) ‘Suck on that, Euro-F***ers!’ .  And please note, that’s just ‘number one’: the first of several finger-wagging admonitions that just don’t stop throughout the 44-page document. Later on, for instance, there’s this:

“The Mission Report attacks the independence of broadcasters and newspapers by stating they are ‘owned by political parties’ and ‘under the control of the Government’. This is a further example of a lack of proper research and a deeper analysis of facts...” SOCK!

Then there’s this: “The Mission Report refers to ‘concerns on the absence of protection measures for Daphne Caruana Galizia’. As the delegation is well aware, Ms Galizia was offered police protection but it was refused. If the Mission Report is suggesting that a journalist should be subject to police protection against their will then we would consider this a dangerous step in terms of media freedom.” BIFF!

And even this (a footnote on page 1, by the way): “Malta has certain doubts as to the legality of the ad-hoc delegation in view of its composition and the manner in which it operated. It did not wish those concerns to hold up its response to the factual allegations made in the Mission Report, but Malta reserves all and any rights in this respect.” KAPOW!

I’m looking forward to the European Parliament’s reply. It’s a bit like waiting for the next episode of Game of Thrones

What can one say? Locked and loaded. The Government wins this particular round of ‘Epic Political Rap Battles’ hands down... now, I’m looking forward to the European Parliament’s reply. It’s a bit like waiting for the next episode of Game of Thrones, really. Who would ever have guessed that so much entertainment could be had, from such a brutal dismembering of our institutional set-up by the European Parliament?

Ah, but that’s the crux of the matter, right there. It reminds me of that horribly trite expression we used to use as children (and some of us still use to this day). ‘Ask a silly question, and you’ll get a silly answer’. By the same token: ‘compile an amateur report on a country’s justice system, and you can only expect its government to come back with an equally childish retort’.

Regardless what we make of the reply, it remains a fact that much of that Mission Report was indeed erroneous, or based on flawed (often biased) perceptions. It is true that the fact-finding mission misinterpreted some aspects of Malta’s Constitutional law: how we appoint Attorney Generals in this country, for instance; or how the AG’s office is apportioned between the separate roles of public prosecution and government’s legal advisor.

But I don’t want to get bogged down in details. Earlier, I described the expression ‘ask a silly question’ as ‘trite’, because... while we can all understand the rationale behind the silly answer, it remains a silly answer all the same. And in this case, it’s a silly answer that doesn’t even address the questions being asked.

It is not enough to merely point out the many shortcomings in the original EP report; and indeed it is not enough to address this reply only to the European Parliament. There’s still the rest of us out here, you know: the citizens of Malta, who also have a vested interest in the state of this country’s national institutions.

So even if the delegation itself was biased, and asked all the wrong questions to all the wrong people – and that, by the way, can almost be taken as a one-sentence precis of the government’s reply – the questions it was meant to ask are still valid.

Again, the part about the appointment of the AG makes a good example. I’ve already quoted part of the Government’s reply – (i.e., that the European Parliament doesn’t know what the heck it’s even talking about) but even if we accept that as true... it does not follow that there is no problem with the appointment of AGs at all. Indeed there is a problem, and Government’s own argument even spells it out for us:

“Peter Grech was appointed as Attorney General on 9 September 2010 when the Nationalist Party [underlined] was in Government; and on 9 March 2013 the Labour Party was voted into Government, yet Mr Grech remains in his post to this day. For the reasons set out above, the Attorney General appointment procedure is transparent, fair and free from bias or political persuasion.”

Much as I hate to call ‘non-sequitur’... that is a non-sequitur. For one thing: just because two parties agree on something, it does not mean that the ‘something’ in question is ‘fair and free from bias’, etc. Quite frankly, it could very well mean the opposite.

Besides:  the issue under discussion is the appointment – not removal – of the AG. As Government separately argues (but, strangely, didn’t mention in its reply) a two-thirds majority of the House is already required to remove an Attorney General from office. So yes, the incoming Labour government did indeed retain Dr Peter Grech, though he had been appointed by Gonzi. Maybe it did so freely and in good faith – no reason to suspect otherwise, really – or maybe it wanted to remove him, but simply couldn’t because of the two-thirds threshold. But who cares? We’re not talking about what this particular government did, or did not do, in the case of this particular AG. It concerns the system of appointments as a whole: it’s about what government – any government – CAN do, within the parameters of the law.

This side of the argument was completely missing from government’s defence. And it becomes important in view of the next line of attack: “The fact that the Maltese Attorney General wears two hats is common in other Member States, and does not impact in any way on his ability to properly and impartially perform his role. Whilst the Attorney General is both the legal advisor to the Government and the public prosecutor, the Office of the Attorney General is divided into two separate units which perform the two separate functions. Those lawyers who work as prosecutors do not give constitutional or civil advice to the Government, and vice versa.”

Here we have to put all this into a specific context. Part of the reason for the EP’s fact-finding mission to Malta was all along a perception – real, fancied, whatever – that this ‘dual role’ was somehow impeding Malta’s justice system from actually operating. Part of the public outcry over the Panama Papers concerned the fact that the AG – who is also government’s legal advisor – failed to initiate an investigation, as he is/was empowered to do at law.

Now: I won’t go into the nitty-gritty concerning everything the mission got wrong about the AG’s powers according to our Constitution – but yes, they got that all muddled up, too – for the simple reason that... no proper investigation took place. And the question this raises is: why did no investigation take place, when there were reports clearly indicating that investigations should have taken place?

Government’s answer is twofold: one, the AG does NOT have the power to initiate an investigation without an investigation order, which in turn can only be granted when there already is an ongoing police investigation; and two: ‘The Attorney General is only able to take steps to obtain an investigation order when he ‘has reasonable cause to suspect that a person…is guilty of the offence’.”

The first part sounds like classic ‘void loop’ to me: the AG can’t investigate unless the police are already investigating... so if the police choose not to investigate, there can be no investigation at all. And what, that’s our official excuse? All it means to me is that the system is rigged to ensure that certain ‘inconvenient’ investigations can always be avoided at will. How on earth does that address the concern about the rule of law?

As for the second part... well, maybe there’s a reason why the AG saw no ‘reasonable cause to suspect’ guilt in this case. Maybe, if those two roles weren’t so intertwined, he might have viewed things differently...

It’s a predicament we simply inherited from the British, and never really questioned since

But there are more dimensions to this debate than whether the AG’s office falls under the direct influence of the current government or not (important thought that dimension undeniably is). How about rephrasing the question slightly: is it, in itself, a good idea to have those two offices combined?

Let’s face it, it’s a predicament we simply inherited from the British, and never really questioned since. But wouldn’t it make more sense to divide the two roles completely, and have one office dedicated wholly to prosecution? And on the subject of the ‘autonomy’ of the AG... why do we only ever talk about ‘autonomy’ from government? There are other arms of the State. The police, for instance. In our system, it is actually the police who prosecute, while the AG provides legal advice and support.

I’ve always seen that as a conflict of roles myself, long before it became an issue recently. The same police force that gathers the evidence, in any case, will also present that evidence in court. They have control of the entire proceeding, from the moment the original police report is filed, to the moment the judge delivers the final sentence. Where are the checks and balances in between?

What I would like to see is an independent Public Prosecution Office, which could also act as an additional buffer zone against systemic abuse. The police think they have enough evidence to proceed? Fine. They submit their evidence to the Prosecution Office for an independent review. Who knows? A second pair of eyes always helps. Maybe the police’s case wasn’t as solid as they thought...

And yet, turning back to the Government’s reply... there doesn’t seem to be any cognisance, anywhere at all in that document, that maybe our system does need a shake-up here and there. Maybe there are ways we can improve the administration of justice in this country.

But we are not clearly going to improve that system much, by simply digging our heels and insisting that all our critics are always wrong about absolutely everything.  (Even when they are very often wrong, but let me not start the whole void-loop business again...)

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