‘It still makes sense’, Sant on inquiring magistrate he proposed in 1996
Former Labour PM recalls resistance to similar anti-corruption magistrate proposal from PN, judiciary and lawyers when this was originally proposed by his government
Former Labour leader Alfred Sant says Malta missed out on an opportunity back in the 1990s to take up his legislative proposal during his brief spell in power, to create an office for an inquiring magistrate.
The Nationalist Party has proposed a legislative Bill to introduce a special anti-corruption magistrate with the power to initiate investigations into graft allegations.
The proposal had been first touted by Alternattiva Demokratika in its 1992 and 1996 electoral manifestos, and included in a draft law which never made it to parliament.
Sant, who was Prime Minister between 1996 and 1998, thinks the proposal makes sense 25 years later, and recalls widespread opposition from quarters close to the PN when he made the same proposal. “The PN did its best to ignore it and showed clearly it was not interested in dealing with the government on the issue.”
Sant moreover recalls that the Chamber of Advocates at the time – which he contends is composed “of the same group of people as the PN leaders” – had “brought up all the difficulties they could think of and stonewalled.”
Even representatives of the judiciary were against the special magistrate, “claiming that judges and magistrates are not there to do police work,” Sant told MaltaToday.
The fact that the proposal was subsequently aborted and not taken up by PN governments after 1998 meant that Malta has lacked an inquiring magistrate with their own team of experts to tackle major cases, like the Enemalta oil scandal under Lawrence Gonzi or the Panama Papers under Joseph Muscat.
Would history have been different had the proposal been approved?
“That we did miss an opportunity, yes I think so. Whether history would have been different I cannot tell, for Maltese obfuscation as a way of life has great resilience, and the island is so small that the links between friends of friends can be extremely corrosive,” Sant said.
Sant has always found the permanent commission against corruption set up after the 1987 election lacking in its scope and powers.
“I am one of those who disbelieve that the structures laid out in the anti-corruption commission mode ever made sense. or can be valid and effective… So yes the proposal still makes sense but under proper conditions of application.”
But Sant qualifies his support for the reform with a note of caution: urging legislators to give attention to the long-standing fear that “an inquiring magistrate could him or herself have political and other aims in proceeding with inquiries”, noting international precedents, such as the prosecution of former French President Nicolas Sarkozy and former Brazilian President Lula da Silva in the Lava Jato affair (Operation Car Wash) – “where definitely something fishy was going on,” Sant opines.
In 2019, online news website The Intercept published leaked Telegram messages between the judge in Lula’s case, Sergio Moro, and the Operation Car Wash lead prosecutor, Deltan Dallagnol, in which they allegedly conspired to convict Lula to prevent his candidacy for the 2018 presidential election. Moro was later appointed minister by right-wing Brazilian President Jair Bolsonaro. Lula was subsequently released – he is now the favourite to win the forthcoming presidency.
Sant also insists that while the proposal for an inquiring magistrate “still makes sense” it will only be effective if beefed up “with proper conditions of application.”
Sant contends that the proposal will only work if the special inquiring magistrate is given executive independent staff with police powers, but this should be subject “to some form of scrutiny and transparency.”
Sant also said the magistrate and his staff “need to be guaranteed security of tenure and possibilities of career progression and/pr income security” which is essential in “the minute Maltese context” where they “could soon become labeled as ‘bojja’ (executioners).”
PN proposal foresees equipping magistrate with investigative tools
In the legislative proposal made by the PN the investigation and prosecution of corrupt practices will become the sole prerogative of a “special inquiring magistrate,” chosen from the existing pool of magistrates who will be directly appointed by the President of the Republic. As proposed the law makes no reference to any need of prior advice of the Prime Minister.
Significantly, the inquiring magistrate will rely on his own staff and will not depend on the police in carrying out his investigations.
The commissioner of police will be legally bound to detail police officers to assist the magistrate in his/her investigations. Moreover the inquiring magistrate, who will have security of tenure throughout the six-year role, will be able to commence investigations on his own initiative.
This means that investigations on the Panama papers and related spin-offs would not have required a police report to be filed by someone like Simon Busuttil, but would have been commenced by the inquiring magistrate.
The PN is also proposing granting the President of the Republic the power to grant a “certificate of immunity” to anyone providing evidence to the inquiring magistrate without risking incrimination.
Significantly it will be the special inquiring magistrate who will present the request to grant immunity and the president will not be following the advice of the Prime Minister and the cabinet as happens in cases of presidential pardons like the one granted to Melvin Theuma.