Prudence must not become an excuse for silence

Robert Abela is right about one thing: politicians should exercise caution when commenting on an ongoing criminal process.

This is even more pertinent in view of the prosecution’s decision to appeal the verdict on procedural grounds and Judge Edwina Grima’s order for police to examine trial evidence for possible proceedings against third parties.

But caution has its limits.

After nine years, the acquittal of Yorgen Fenech cannot simply be followed by another appeal for patience, another reminder that institutions must be allowed to work serenely and another period of waiting.

The jury has reached its verdict. That verdict must be respected. But it is also entirely legitimate — and necessary — to scrutinise and even challenge it.

These two positions are not contradictory.

Respect for the rule of law means accepting that Fenech is legally acquitted unless and until that position changes through the appeal process.

It does not mean accepting that the verdict is beyond public discussion. Nor does it prevent journalists and citizens from asking how such a verdict was reached, and what it tells us about the investigation and prosecution of Malta’s most consequential political murder.

That scrutiny is particularly justified because Fenech according to the prosecution’s case was the one who commissioned Daphne Caruana Galizia’s assassination.

This was the central allegation that brought the case to court. And yet eight of nine jurors found that the prosecution had not proved that case beyond reasonable doubt.

That is an extraordinary outcome.

It does not automatically mean the jury was wrong. A jury is entitled to acquit where it has doubts about the evidence, even if the wider public finds the circumstances deeply troubling.

But it does mean there are serious questions that cannot simply be dismissed as an attack on the judiciary.

The questions raised by the evidence

The case against Fenech did not rest on a single allegation. It involved Melvin Theuma, recordings, messages, financial transactions, statements made by Fenech himself and a wider body of evidence concerning the murder plot.

The publication of recordings from Fenech’s 2019 interrogation has now placed particularly striking material back in the public domain. Fenech was recorded telling investigators that he had initially given Theuma the go-ahead and then, three days later, told him to stop.

“First, I told him [Theuma] OK. After three days, I told him to stop. He told me he was already committed and paid the money.”

He claimed that the initial green light had come after Keith Schembri told him to proceed. Schembri has denied involvement.

The recording does not overturn a jury verdict. Nor does it, by itself, establish criminal guilt. But it makes the verdict even harder to leave without scrutiny.

One cannot help but ask: what did the jurors make of these statements? How did they assess Theuma’s credibility against Fenech’s own words? Which parts of the prosecution’s reconstruction of events did they reject? Where did they find reasonable doubt? Were there weaknesses in the way the evidence had been collected, preserved or presented? Were there contradictions that proved decisive?

These questions cannot be answered because juries by their very legal nature are not expected to explain their verdicts. But they boggle the mind. This episode should prompt a debate not on the noble concept of being judged by one’s peers but on the absence of any obligation on juries to explain verdicts.  But this is beyond the point.

The major issue at stake is that nine years after the murder, the business tycoon accused of giving the order has been found not guilty and instead of closure the country has been thrown back in to confusion.

The political ramifications

That is why one cannot simply relegate this case to a normal crime. Indeed, the acquittal was itself a political earthquake.

Opposition leader Alex Borg was right to bring parliament back to discuss the verdict. His intervention was timely. His decision to respect the jury while demanding answers is also a legitimate political position.

But his decision to make Castille the centrepiece of his immediate response also carries a danger.

Borg pointed at Castille during a protest and said that Daphne Caruana Galizia’s assassination had been “planned in here” — meaning within the seat of government.

The fact that the jury visited the Office of the Prime Minister because evidence concerning a meeting between Theuma and Keith Schembri related to that location was indeed extraordinary. The political significance of Castille cannot simply be wished away.

Yet there is a risk that the story becomes about whether the murder was “planned in Castille” rather than about the prosecution’s case against Fenech and why it failed.

That can inadvertently shift the focus towards the alternative narrative advanced by Fenech’s defence team: that the real conspiracy lay elsewhere.

The risk is that Yorgen Fenech’s acquittal was based on a defence strategy to shift the blame on Schembri without providing any new shred of evidence that this was the case, in a way that at the end of the story we will end with nobody behind bars.

Surely their case was made easier by witnesses hinting that Schembri was treated with kids gloves in the initial phases of the investigation. But the risk of blaming Castille is that one could end blaming an abstraction or entity, which cannot serve jail time. 

Schembri’s alleged role especially in the alleged cover-up and the corruption deals which were central to the prosecution’s thesis, deserves investigation where evidence warrants it. But investigating the political network around the murder should not mean losing sight of Fenech’s alleged role as the man who, according to the prosecution, commissioned the assassination.

It matters because Fenech’s alleged involvement in the murder strikes at the heart of one of Malta’s greatest problem: the proximity of big business tycoons to the State and politicians.

This should also be the focus of the Opposition. 

We need laws and firewalls to put an end to kleptocracy and oligarchy irrespective of whether Abela or Borg are in power. 

The parliamentary debate also underlined the newfound unity of the opposition in the face of the verdict, but also exposed different tones of emphasis. Borg adopted a more measured tone, while Mark Anthony Sammut gave voice to the anger that has spread well beyond the PN. 

“This morning we woke up in a country that can blow you off the face of the earth because you write something they don’t like,” Sammut said. “That is the only sure fact.”

But that anger is not confined to the PN.

Repubblika has stressed that respecting the verdict does not mean declaring that the institutions worked properly. The left-wing Moviment Graffitti has expressed outrage, emphasising the incestuous relationship between politicians and big business. European Parliament President Roberta Metsola has said the verdict raises more questions rather than bringing the search for justice to an end.

The reaction matters because it shows that this is not simply a partisan dispute between Labour and the PN. Hopefully, they will also be joined by people who have supported or have in the past voted for the Labour Party. 

Alex Borg is right in taking a pro-active role but he should not try to monopolise the outrage in a way which makes it hard for Labourites and independents to participate in protests and express their outrage.  

Abela’s bigger test

But it is Robert Abela not Alex Borg who now faces the greatest political test.

Five years after the public inquiry concluded the State created a climate of impunity that facilitated Daphne’s assassination, many of its recommendations remain unimplemented. In this sense, Alex Borg’s deadline to government on implementing the inquiry’s recommendations is pertinent.

Moreover, government cannot answer every criticism by saying that the courts must be allowed to work. The courts have now worked. The jury has reached its verdict. And instead of resolution, we have even more confusion.

The legal process must now continue. But government must also address the institutional failures that existed before the trial and the weaknesses exposed during it.

This means confronting the political-business culture of the Muscat years.

The problem was not simply that some businessmen knew some politicians. It was the extraordinarily close and informal relationship between political power, major business interests, parts of the public administration, senior police officials and the criminal underworld.

Change has to be institutional. Stronger rules on political access, lobbying, gifts, conflicts of interest, communications and dealings between ministers and major private interests are part of the answer. So is full implementation of the public inquiry’s recommendations, as well as rules proposed by the parliamentary ombudsman and OSCE regulating political lobbying, gifting and access. 

The government should not fear these demands. It should embrace them. But it runs even deeper than that.

If Abela wants to demonstrate that the Muscat era is over, the answer cannot simply be that he is not Joseph Muscat.

The problem for Abela is that Yorgen Fenech’s acquittal has also taken his own party back to its darker days: Jason Micallef, a political appointee, describing a banner calling for justice for Daphne as “vandalism”; a culture minister down-playing the prosecution’s own thesis that Daphne was killed for her role as a journalist exposing corruption; and various pro-government commentators in denial about the sins of the Muscat era, marked by the direct access to government and state institutions that business tycoons like Fenech enjoyed.

Added to this toxic cocktail is the complete indifference and hostility of a number of Labour supporters towards Daphne, her family and anyone who criticizes Joseph Muscat.

A clear political message by Abela that all this is unacceptable is still lacking, nine years after

Daphne was murdered.

Prudence has already had its chance

For nine years, the responsible position was to wait.

Wait for the police.

Wait for the magistrates.

Wait for the prosecution.

Wait for the trial.

Wait for the jury.

Those institutions have now taken their turn.

And the result is that the man accused by the prosecution of commissioning Daphne’s murder has been acquitted. We are back to stage one.

There may be a re-trial. There may be further investigations. The judge has already ordered trial material to be passed to ongoing magisterial inquiries so that possible criminal responsibility of others can be assessed.

So, this is not necessarily the end of the legal story.

But politically, Malta has now reached a point of no-return.

The country was told the murder would be solved. For Labour, this was an opportunity to show that a political assassination carried out under its watch had also been solved under the same watch.

Nine years ago, Malta was told by Joseph Muscat there would be no stone left unturned until the culprits are brought to justice.

It was told to trust the institutions. Now the alleged mastermind has walked free.

The answer cannot be to tell the public that it is somehow irresponsible to ask why.

The jury has done its job. The prosecution must now do its job by leaving no stone unturned to achieve a retrial.

This must include fully investigating the controversial antics and manoeuvring of the defence team and those who financed it, particularly where conduct that has come to light before, during and after the trial raises legitimate questions. 

But parliament and government have another responsibility: to examine what went wrong, to implement the public inquiry’s recommendations and to ensure that the political and economic relationships that helped create a culture of impunity cannot be reproduced.

Civil society also has a role in keeping the institutions in check and maintaining pressure against the culture of impunity, which has been reinforced by the acquittal. 

Daphne’s family has every reason to see the acquittal as a second murder, this time a wound inflicted by the justice system itself. Nine years without establishing who commissioned the murder compounds the State’s failure.

The country can only have closure when these questions are answered:

Who commissioned the murder? Who else knew? Who else helped? Who was involved in the cover-up? Who tried to muddy the waters before and during the trial? Why did the prosecution fail to convince eight jurors that Fenech was that person? What happened to the evidence that seemed so compelling before the trial?

And why did Malta’s institutions prove incapable of protecting a journalist who, according to the prosecution, was killed precisely for uncovering corruption and political-business-criminal networks surrounding the murder?

Those questions are not an assault on the rule of law. They are part of democracy. The moment we stop asking questions, our democracy will die.

And after nine years of waiting, Malta cannot afford to turn prudence into another word for silence.

We cannot afford to go back to square one.