Political and legal responsibility are not the same

The Prime Minister’s decision to await the outcome of ‘inquiries into 17 Black’ – before taking any decisions relating to the case – was predictable, but also flawed.

One must bear in mind that there are two dimensions to this case.

One concerns the political responsibilities to be borne by the government, which entail decisions of a political (and therefore largely unregulated) nature.

While there are certainly conventions to be followed, there are no strict rules governing how, or even when, a prime minister should shoulder such responsibilities. Like all his predecessors, Prime Minister Joseph Muscat enjoys wide discretion as to how to respond to any given circumstance; and past experience with governments of all political hues, to be fair, suggest that his decisions will ultimately be guided by party-political concerns, not by decorum and propriety.

This alone is a serious issue in its own right, even without factoring in the ramifications of the 17 Black case. Evidently, Malta needs a framework to guarantee the proper shouldering of political responsibility in all matters. Ironically, this very issue formed the basis for one of Labour’s pre-2013 battle-cries: the promise of ‘transparency’ and ‘accountability’. It was in part to fill this lacuna that an unprecedented majority voted Muscat’s Labour Party into power in March 2013.

One can only hope that the recent establishment of a Parliamentary Standards Commission, and a new code of conduct for people in public office, will begin to fill the institutional void. But it came too late in the day to have any effect on the 17 Black controversy. Yet again, we are at the mercy of party-political considerations, in this case as in so many others. Clearly, this cannot go on much longer.

The second dimension, however, concerns the legal (as opposed to political) ramifications. Here, the landscape is very different. There are, in fact, an abundance of rules and regulations governing what should happen when the country is faced with serious suspicions of high-level State corruption… and, even more so, with criminal activity of any kind.

Even if the ‘innocent until guilty’ scenario applies to this case as much as any other, the fact remains that the law was not followed to the letter when applied to this case. The Money Laundering Act makes it clear that even the intention to launder money is a crime; and in July 2017, Magistrate Ian Farrugia ruled there were enough grounds for a magisterial inquiry to determine whether money laundering allegations against tourism minister Konrad Mizzi and the Prime Minister’s chief of staff Keith Schembri warrant a criminal investigation.  

This impacts both the political and legal dimensions of the 17 Black scenario. If a magistrate decided that the allegations are serious enough to warrant a criminal investigation, it only means that a criminal investigation should have taken place regardless of any separate inquiry. The police are believed to have launched an investigation at least seven months ago: when its Economic Crimes Unit received a report from the FIAU indicating Yorgen Fenech as the owner of 17 Black.

On the political front, the magistrate’s conclusions also imply that the only inquiry (or investigation of any kind) related to 17 Black is not the result of a police investigation, but of a report filed by former Opposition leader Simon Busuttil after the 2017 general election.  There would, in fact, have been no inquiry at all, had the Opposition not insisted on one. Unless once again, the FIAU’s report was being given the attention it merits once it was presented to the police.

Moreover, Muscat himself is stalling the investigation, with an appeal together with Konrad Mizzi, Keith Schembri, Brian Tonna, Karl Cini, Malcolm Scerri and Adrian Hillman, against the magistrate’s decision. This means that if the PM wins his appeal, Mizzi and Schembri won’t ever be investigated for money laundering at all.

All this raises the question: if the Prime Minister is obstructing a formal inquiry on Mizzi and Schembri, how can he also insist on awaiting the outcome of the same investigation?

Perhaps the most serious implication, however, is that the situation sets a dangerous precedent for future cases of unethical political behaviour. In the past, Muscat had no qualms in forcing politicians like Anglu Farrugia, Michael Falzon and Manuel Mallia to resign, even though none of them were faced by any criminal investigation.

In 2013 Muscat claimed that Farrugia’s resignation (for criticising a magistrate’s decision) reflected the difference in standards between the two parties, “with those within the PL bearing their responsibilities and the PN’s Austin Gatt evading a no-confidence vote till the end”.

What will Muscat do now, when faced by a case which does not warrant criminal action but which may be politically inappropriate?

By not sacking Schembri and Mizzi, Muscat has lowered the bar for any errant Labour politician. He is also sending a message to his supporters that political propriety is a secondary consideration.

Indeed, to many that is only possible conclusion to be drawn from the facts of this case.