[ANALYSIS] Abela’s logic: When fighting the mafia turns you into a ‘mafia state’

Last Sunday, Prime Minister Robert Abela claimed the Nationalist Party is proposing legislative amendment “purportedly” aimed at fighting corruption, as a veiled attempt at “recognising Malta as a mafia state”.

“I have read the bills and I will be the first to debate on Thursday. The Opposition did not manage to paralyse the economy during a pandemic and it will not manage now,” he warned supporters in Nadur.

In a reference to one of the Bills outlawing ministers from using private communications on government duties, Abela spoke of businessmen who could depend on a direct link with the prime minister. Warning the law would send politicians to jail if found directly communicating with businessmen, Abela urged businesses to continue communicating with him, pledging he will always defend them. “We will not allow institutions to terrorise anyone. What we want is, reason,” he said.

But by turning down the Opposition’s proposals, what message is Abela sending?

Abela suggests countries that enacted similar laws against organised crime were still dubbed ‘mafia states’ – but they did so for exactly opposite reasons: clamping down on organised crime to safeguard their reputation as states who actively fight corruption and organised crime

It is countries which do not fight organised crime and lack the laws to do so which generally get labelled as mafia states.

A few months ago it was the Montenegrin government which dubbed a proposed law facilitating the confiscation of assets of illegal origin, an “anti-mafia law”.

And the reputational damage to Malta has already been caused by the impunity and institutional paralysis in the aftermath of the Panama Papers. Only one of the 12 laws proposed by the PN targets mafia-like association, modelled on Italy’s historic anti-mafia laws which helped in turning the tide against organised crime after an explosion of mafia-related violence.

In 1982, the Italian parliament passed Article 416-bis, which defined for the first time the crime of “mafia-type association”. In recognition of the importance of political alliances for mafia crimes, the procurement of votes is explicitly mentioned in the law as a possible mafia activity. The law proposed by the PN follows the specific Italian model in criminalising membership in mafia-like organisations marked by secrecy and intimidation, even in the absence of proof in other criminal acts.

It is arguable whether one can compare the insidious territorial presence of the Sicilian Mafia and Neapolitan Camorra in Italy, where local bosses run a parallel economy based on patronage, to the ad hoc conspiracy to kill Daphne Caruana Galizia. One may address this deficiency by using a different terminology while criminalising membership in organisations marked by secrecy and intimidation.

But the assassination of Caruana Galizia did expose the dangers of collusion between criminals and business people with strong political connections. Moreover, Malta’s close proximity to Italy and the infiltration of mafia money in legitimate businesses like gaming, coupled with the use of Malta-based banks by PEPs from countries mired by corruption like Azerbaijan, further underlines Malta’s vulnerability.

Countries like the France, the UK and Ireland have also enacted strong legislation against the proceeds from organised crime, in the shape of unexplained wealth orders, another measure proposed by the PN.

Using Abela’s logic one would argue that by introducing such laws these countries were also inflicting reputational damage on themselves by recognising the dangers of mafia infiltration in their legitimate economy. But by taking action, they made it harder for organised crime to do so.

Law-abiding businesses have nothing to fear if their dealings with politicians are logged in official communication. But it would go a long way in protecting them from the unfair dealings of rivals who have no such qualms in their bid to secure contracts and permits from politicians

The law proposed by the PN will only criminalise the use of personal email and other electronic messaging systems for the pursuit of monetary advantage or profit or in a way, which results in financial losses for the country.

Public officials will still be able to use their Gmail or WhatsApp account to talk to anyone else, including businessmen, on all other matters. In fact, one can argue that a draft code of ethics proposed by Standards Commissioner George Hyzler is wider in scope by obliging politicians to log any meetings with lobbyists in a transparency registry.

And curiously it was Environment and Planning Minister Aaron Farrugia who unilaterally had introduced an electronic register to log the names and details of meetings held with individuals and organisations soon after taking up his ministerial role in 2021; even if he later back-tracked, insisting that he is waiting for the outcome of a proposal being drafted by the Standards Commissioner for a government-wide lobby register.

What is at stake here is the undue influence of businessmen with good political connections in ‘selling’ their projects to politicians, well before these are approved by regulatory authorities, something which is not possible for businessmen who are either more scrupulous or lack the same political clout. This inevitably results in unfairness, favouring well-connected business elites over those who are not.

Banning the use of personal email and other personal electronic channels would not criminalise the over-familiarity between businessmen and politicians of the kind exposed in leaks involving Edward Zammit Lewis and Yorgen Fenech.

But it would address concerns raised by the Auditor General on the use by then-Prime Minister Joseph Muscat of his personal email [email protected] for government business in negotiations resulting in the termination of a 65-year lease to Café Premier against a €4.2 million compensation.

Any proposal by the Nationalist Party made in the full knowledge that Labour’s poll lead is unassailable, is bound to be seen as an attempt to clip Labour’s wings and score electoral points.  But Abela had every opportunity to enact such laws himself or to delegate such responsibility to a constituent assembly entrusted with the sole task of re-writing the rulebook in the wake of the historically unprecedented attack on the institutions by the criminal cabal, which killed Caruana Galizia

In theory, the PN laws would clip the wings of any government irrespective of whether it is led by Labour or by the Nationalists. But with Labour set to win the next election with a large margin, the PN may strategically view such laws as a way of weakening the next administration and even curb Abela’s power of incumbency.

In fact, one of the laws is aimed at limiting the power of incumbency, a power used by past PN governments but which reached new levels before the 2017 election, when an average of 38 planning permits were issued every day during the campaign.

Yet such a reading ignores the unprecedented circumstances in which Abela found himself at the helm, following the resignation of Joseph Muscat after the arrest of Tumas magnate Yorgen Fenech on murder charges, and revelations that his offshore secret companies were connected to similar structures owned by Keith Schembri and Konrad Mizzi.

Following this political earthquake, many expected a thorough reform of Maltese democracy. Yet, while Abela did introduce positive reforms related to judicial, police and presidential appointments, he refrained from addressing the nexus between organised crime, politics and big business.

Abela had two full years to present his own anti-corruption package but for some reason failed to do so. Neither did he move on this front immediately following the conclusion of the public inquiry on Caruana Galizia’s assassination in July. One may argue that the task at hand deserves more serious deliberation and public discussion than a raft of bills on the eve of an election by an Opposition party in desperate need of scoring political points.

To avoid this Abela may well have delegated this responsibility to a constituent assembly, entrusted with the sole task of enacting the far-reaching recommendations made in the public inquiry.  One way of ensuring democratic legitimacy and avoid partisan wrangling would be to restrict membership of the assembly to independents elected without the expressed backing of political parties.

Such an assembly could have even raised issues left untouched by the PN, including party financing laws. Yet instead of seizing the day, by taking ownership over a reform process which addresses the shortcomings exposed by the conspiracy to murder Caruana Galizia, Abela has left the initiative to the Opposition.

In short, Abela’s greatest shortcoming was to fail to recognise the need of a national awakening in the face of the greatest challenge to democracy posed by a cabal, which had hijacked his own party.

And by warning that such laws could paralyse the economy, Abela seems to be hinting that Malta is so corrupt that it is better not to upset the apple cart.

The appointment of a special inquiring magistrate entrusted with prosecuting corruption allegation is something first proposed by Labour in the 1990s. It would simply mean a respected magistrate enjoying the trust of a President elected by a two-thirds majority, would have the power to commence investigations on his or her own steam

With its raft of 12 different legislative proposals the PN seemed more interested in showing off its rule of law credentials and embarrassing Labour before the election, than in ensuring a meaningful discussion on each single bill.

In this sense Abela was partly right in describing the reform package as an electoral gimmick.

But the best way to neutralise this would be for Abela to take ownership of these bills by presenting amendments aimed at strengthening them rather then neutering them. He can plausibly claim that it was Nationalist governments who failed to enact such laws in their long spell in office.

He can also do justice with his own party’s strong anti-corruption stance under former leader Alfred Sant, who had himself proposed the appointment of a special inquiring magistrate in 1997 more than two decades before the PN proposals.

Unfortunately, Abela seems keener in limiting the damage caused by his predecessor than in presiding over a Maltese spring characterised by ambitious and forward-looking reforms.

Under the watchful eyes of FATF and other international monitors, Abela cannot afford to send the message that he is more interested in partisan games than in buttressing Maltese democracy against organised crime. Therefore Abela is bound to come up with a counter proposal

Abela knows that following the FATF greylisting and the extra scrutiny accorded to Malta following the assassination of a journalist, he cannot afford to shoot down the PN proposals in their entirety without sounding complacent and unwilling to grab the bull by its horns.

And while corruption is not an election winner, Abela can actually strengthen Labour’s majority among MOR voters by taking the initiative on this front from the Opposition.

In fact Abela may be less belligerent then he sounds. For while shooting down the proposals in front of supporters, he also committed himself to engage in the prospective debate on the Opposition’s private members bill. And if the bills get an actual hearing, Abela may be astute enough to realise that he has to seize the initiative from the Opposition.

Yet in the final instance Abela will have to choose between having the bills discussed, amended and approved before the election or ensuring procedural delays, which would effectively abort their passage in this legislature. If Abela chooses the first path, he risks being accused of neutering the most radical anti-corruption bills presented in the last decades.

And while it may appear rich for a compromised party like the PN to champion the anti-corruption cause, with Malta under the spotlight Abela needs to convince that on this vital issue he is on the right side of history.

International scrutiny apart, it is the Maltese public which deserves a new deal which ensures that corruption and mafia-like association does not give anyone an unfair advantage over law-abiding citizens.