Not even investigated, let alone ‘cleared’

By dropping his Panama libel cases, Konrad Mizzi Mizzi is ensuring that additional facts do not emerge at all and prevent key witnesses – such as Nexia’s own partners – from testifying under oath

News that Tourism Minister Konrad Mizzi will be withdrawing libel cases against the late Daphne Caruana Galizia, over revelations which emerged from the Panama Papers, may perhaps be viewed as positive: given that it effectively halts what was, until this point, a rather clear-cut attempt to stifle public discussion about this very serious matter.

But while Mizzi, on the surface, appears to be doing the right thing, his reasons for doing so are at best questionable. The minister said he would not continue to pursue the lawsuits in view of recent court statements which found he had not been involved in any illegalities.

In a statement, the tourism ministry said that the Criminal Court had determined that the allegations of money laundering in connection with the Panama Papers revelations were “mere speculation”.

“In the absence of evidence (and there is none), the court dismissed Busuttil’s mud-slinging as nothing but conjecture,” it said. “In utmost contempt of the ruling, and disrespecting the Court, Simon Busuttil and David Casa sought further action by the Court of Magistrates. They again asked for an investigation which had just been declared as unwarranted and baseless by the Criminal Court.

“Not surprisingly, the Court of Magistrates saw through the ploy and dismissed the second request. It declared that there is no uncertainty in the prevailing legal situation – the courts had already decreed conclusively that Busuttil and Casa’s allegations are no valid basis for a criminal inquiry.”

This represents a willful distortion of the true significance of the two rulings. In January, judge Giovanni Grixti upheld an appeal – filed by Joseph Muscat, Keith Schembri, and others – against a previous decision by magistrate Ian Farrugia, who had ruled there was enough evidence for a separate inquiry into the Panama Papers revelations.

Mr Justice Grixti effectively threw out the request for an investigation, but his rea- sons for doing so were not exactly the same as suggested by Mizzi’s statement. On the contrary, Judge Grixti concluded that Magistrate Farrugia had not observed the right
of the accused to be informed about replies, declarations and new documents presented by Busuttil. Furthermore, Simon Busuttil’s request to the magistrate did not satisfy the pre-requisites for an inquiry by not describing the alleged crime or the subject matter of the crime with all its details.

The judge noted that “in recounting many occasions”, Busuttil “sees an ulterior motive behind everything, which he is at liberty to do, but he does not say how each one or all together could have been a crime meriting a magisterial inquiry”.

This, the judge said, is what qualified the report as speculation.

Moreover, Mr Justice Grixti ruled that Magistrate Farrugia had applied the wrong law, specifically that for a magisterial inquiry – and not for a police complaint – he who makes an accusation must describe “each and every particular... and the instrument” by which the crime has been committed. The erroneous application of the law had a direct effect on the magistrate’s decision.

But this ultimately amounts to a legal technicality. It is a long jump from there, to the conclusion that the allegations against Mizzi were false or gratuitous.

Indeed, part of the reason for Grixti’s ruling was that it should have been the police to first investigate the Panama allegations, not a magistrate. This actually confirms that the matter should, in fact, have been investigated, but wasn’t.

As for the second ruling, Magistrate Francesco Depasquale turned down a fresh request by Busuttil and Casa for an inquiry into possible money laundering connected with the 17 Black company... on the basis that the allegations were already the subject of another investigation.

On both counts, then, Konrad Mizzi is clearly wrong to claim that either judge Giovanni Grixti or Magistrate Francesco Depasquale ‘exonerated him’ of suspected criminal activity.

Moreover, by dropping his libel cases, Mizzi is also ensuring that additional facts 
do not emerge at all. The initiative effectively prevents key witnesses – such as Nexia’s own partners – from testifying under oath; and 
in any case, even in terms of Maltese understanding, those who relinquish libel claims are not ‘settling out of court’; they are ‘losing’ the case, almost accepting that the claims against them were indeed true, or at least, not negated.

In reality, there is not a word or phrase in those court rulings that lets Konrad Mizzi,
or his associates, off the hook on the Panama Papers evidence, or allegations of gross tax avoidance or worse. Certainly, Mizzi has never been officially cleared of any alleged wrongdoing. Indeed, he has never even been investigated over the Panama Papers to begin with.

This was, in fact, the whole point behind Busuttil’s legal argument – flawed though it was – from the outset.