‘Culture of familiarity’: Caruana Galizia public inquiry proposes wide-ranging legal changes

“It is this mentality, prevalent in society, which strengthens the arrogance of those with political and economic power. It is the seed that sprouts corruption”

Besides its findings relating to the events of 16 October 2017, the 437-page report by the Board of Public Inquiry into the murder of Daphne Caruana Galizia made several recommendations which, if adopted, will effect wide-ranging changes to Maltese law, public life and mindset.

The Board began its recommendations by saying that the police and every other regulatory body involved should continue their investigations to identify all of the people somehow involved in the murder and ensure that they all answer for their actions in court. “This inquiry showed that there are still things that need to be investigated and not everything is certain and finalised.”

The Board said it understood that this was happening and was bearing fruit.

Venice, Greco Commission recommendations

It adopted the recommendations made by the Venice Commission, the Greco Commission and the legal affairs committee of the European Parliament for the strengthening of good governance. It endorsed the recommendations made by the Parliamentary Assembly of the European Council in its 2019 report. The Board said it was conscious of the commitment by the authorities to implement these recommendations and the legislative steps that were taken and which were being taken in this direction.

Change in culture of familiarity

The Board proposed amendments to Maltese criminal law regarding financial institutions and other organisations to ensure that a de facto state of impunity doesn’t developed as had been established to have happened in this case. Legal amendments could help combat the mentality that one could evade the long arm of the law and even commit serious crimes because one was in a position of power, be it political or economic – or because one was part of a criminal organisation protected by this power.

In this regard, it is essential that the law provides that the politics of sanctioning irregularities and illegalities must be reduced to the minimum, applicable only in exceptional cases. “Whoever breaks the law should suffer the consequences of his actions and should not have the expectation that money will regularise that which he did not have the right to by law.”

“It is this mentality, prevalent in society, which strengthens the arrogance of those with political and economic power. It is the seed that sprouts corruption.”

This legislative reform must be reflected and reinforced with administrative practises which effectively regulate relationships between the public administration and businesspeople which State entities necessarily need to work with to create wealth.

The Board emphasised that this required “absolute transparency and accountability” and above all, enforcement. Amongst existing laws it recommended strengthening was the Whistleblower Act, the law regulating Party financing and the laws regulating public contracts, tenders and direct orders.

The law should ensure that there are no hidden dealings between the public administration and business. Communication about prospective investment through unofficial back channels should be prohibited, said the Board, adding that a law regulating lobbying should be enacted.

“The mentality that through personal contacts, friendships and familiarity, if not common interests, one can acquire that to which he has no right, must be eradicated.”

New criminal offences and the strengthening of existing laws

“Whilst it is important to update laws…to avoid the risk of a state of impunity with Mafia connotations developing, and whilst it is essential to have rigorous and effective enforcement of these laws, it is perhaps more important and difficult that an effort be made by the public administration to change the mentality of how to administer the common good.”

This had to be started by creating a politics that reflects these principles, it said.

The Board recommended the enactment of a law creating “Unexplained Wealth Orders” to combat financial crime and corruption.

It also recommended the creation of a specific criminal offence of hampering or attempting to hamper the police or other authorities in the execution of their duties, including investigating crimes.

The introduction of a criminal offence similar to the Italian 416 bis which contemplates crimes “di associazione di stampo mafioso.” The Board also urged the introduction of the crime of Obstruction of Justice, as well as making Abuse of Office a criminal offence for public servants..

The law regulating the Attorney General should also be revised, said the judges, to fully implement the Venice Commission recommendations regarding full control of investigations relating to grave offences, together with the police as well as the power to start his own investigation.

Codes of ethics to bind public officials against improper behaviour

It recommended the creation of an ad hoc structure in the police force to quickly investigate and provide protection against those exposed to grave danger. In the case of journalists, this meant amongst other things timely and effective investigation of the cause of this risk or risks.

It encouraged the creation of binding Codes of ethics to stop public officials from engaging in improper behaviour.

State to recognise its shortcomings

The Board recommended that in the first place, the State, in the light of what was proven and what was still emerging to date in the public domain, recognise “formally and publicly, the grave shortcomings of the public administration surrounding the assassination of the journalist Daphne Caruana Galizia. Failures of omission and commission by certain State entities or persons who compose them, certainly rendered unique by their seriousness, extensiveness and barefacedness. Actions that favoured the creation of a de facto impunity that could have facilitated the execution of the crime.”

The Board concluded that the Government must also take all the “fitting and opportune” steps to “ensure that the State reconciled with the family of the assassinated journalist and in so doing, start the healing process for the grievous and traumatic wound that the country had suffered and which it is still going through.”