All eyes are on Magistrate Aaron Bugeja and his Egrant enquiry. The focus is on him because we have given up on those people whose job it is to investigate and prosecute crime. Those people are in habitual dereliction of their duties, and it is now up to an inquiring magistrate to show them how the job is done, without fear or favour.
We have invested all our hopes in a few good people who seem impervious to pressure, but we can only be disappointed by the limitations set on them by the law. Magistrates are only powerful when sitting in judgment of others, when they are able to determine guilt and punishment.
But when they’re on the inquiry shift, magistrates are not quite so powerful. They are useful bureaucrats who collect and preserve evidence that will prove very important when the job of the police and the prosecutors kick in. But there indeed is the rub. Magistrates are not police and neither are they prosecutors. They may be satisfied they are in possession of the evidence of a crime but they cannot do much about that.
They can direct the police to investigate further, even prosecute. But there their role stops. It all goes to the Police Commissioner, and if the Police Commissioner is unsure, the Attorney General will ultimately determine whether to actually prosecute or not.
These are not rules invented by Joseph Muscat to protect himself. These are rules designed 150 years ago, back when they were innovative, exemplary and perfectly functional. Now they are arcane, quixotic and ineffective.
They are also insufficient to prosecute the powerful who hire, and in some cases, fire the people who have to decide about their prosecution. The suspects in the Egrant investigation are the Muscat couple. Michelle Muscat thought nothing last week of using her husband’s official spokesman to deny an allegation. She publicly outed one of the witnesses in the Egrant inquiry, revealing that that witness – her friend and business partner – had failed to respect the secrecy incumbent on witnesses in magisterial inquiries. In the self-same act of making this pronouncement, Michelle Muscat wilfully obstructed the due process of justice, a crime against which Malta has as yet no law.
She did so unconcerned that she could face any possible sanction. Whatever the magistrate may feel about it, any possible action against her must be driven by the Police Commissioner, a glove on her husband’s hand. Lawrence Cutajar knows he can be fired by the chief suspect in this case. After all, his predecessor was fired because he was looking into the actions of a friend of the Prime Minister. Imagine the reaction if he were to dare look into the actions of the Prime Minister’s wife or her business partner.
And Egrant is far from the only crime we know of. That inquiry exists because the Prime Minister himself called for it. In a moment of panic that fateful April night last year he assumed the taker of the inquiry would not be quite as diligent as Aaron Bugeja. The assumption was that the whole thing would be done and dusted inside of a fortnight. When it looked like the magistrate wasn’t going to wrap up any time soon, a story was fed to an over-enthusiastic journalist who announced that the inquiry had been concluded and it had found no wrongdoing. It wasn’t, and we still don’t know if it has.
When an inquiry report falls on the desk of a pliant Attorney General, whether the witnesses are able or willing to speak will determine the decision
Worse still for the Prime Minister, as more evidence was presented to Bugeja, four more inquiries were spun out and all are still under way.
At last, it seems someone has stepped up. You have to remember when these inquiries started we had known about Panama companies – owned by Keith Schembri, Konrad Mizzi and someone described as too important to be named – for over a year. A year in which nothing happened.
Not checking who was duty magistrate on April 20 was a mistake Joseph Muscat would be careful not to repeat. When Simon Busuttil, enthused by the bustle in the Magistrates’ chambers, asked a magistrate to order the police to investigate the Panama Papers findings, Muscat and the rest of the Panama Gang appealed the decision to order police investigations in front of a judge married to a Labour MEP.
Better safe than sorry. In the meantime, they prop up the Police Commissioner with the husband of a Cabinet minister as his deputy, and beneath him a layer of rapidly promoted uniformed political commissars with a firm grip on the police investigations and all other law enforcement agencies, particularly the FIAU.
Confined as he is by constitutional and legal limitations, Magistrate Bugeja is also marked by a stark warning from Muscat, who on television, in an evening that will be remembered as the kristallnacht of this regime, warned him of unspecified consequences should his findings not be to his liking. After the journalist who revealed the information that led to Bugeja’s inquiry was blown up in a car bomb, that chilling warning acquired a new significance.
One key witness to the inquiry has been killed off. Others, likely more than one, watched the Prime Minister stand up in Parliament last week and warn them of long prison terms should they reveal what they know. As these people – because it is not only Jonathan Ferris – face their children, they have to decide if prison is a fair exchange for revealing information that the police are certain to ignore.
Another key witness is harassed, intimidated and hounded from one country to another using all the formal and informal powers of influence that can be mustered. The reporting on Cypriot media slandering Maria Efimova with suspicion of the murder of Daphne Caruana Galizia smacked of conscious, malicious briefing.
Then stories started emerging that simply do not check out: that she miscarried a child when she was held under arrest outside Malta, when she appears never to have been arrested outside Malta; that she is wanted by Ireland, when she was there just last September on holiday; that her husband was fired by the Bank of Cyprus, when he took voluntary redundancy when the bank faced a financial crisis.
Why would Cypriots be so interested in Efimova anyway? In effect they are not, but there are vested interests in witnesses falling silent, whether out of fear or an acute sense of self-preservation. When an inquiry report falls on the desk of a pliant Attorney General, whether the witnesses are able or willing to speak will determine the decision and provide some justification for sealing the inquiry in a bottom drawer and preserving this government’s impunity.
To leave no stone unturned, Muscat authorised Henley and Partners, and possibly Pilatus Bank, to use the ruinous SLAPP tool to silence any journalists who might be looking into this.
The rest of the world sees through all this. The Council of Europe has described Efimova’s arrest warrants as a threat to media freedom. The European Parliament recommended she be given political asylum and that whistleblower status be extended to Ferris. They have gathered around MEP David Casa in the face of the threats he has received. They have demanded Schembri and Mizzi be removed forthwith.
The international press and parliamentary community have repeatedly demanded international scrutiny into the Caruana Galizia assassination. They have asked for political responsibility to be assumed.
None of this has happened. No magistrate alone can change all that.
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