The law sets the bar too high for an inquiry into suspected money laundering to take place, raising serious rule-of-law issues, the Dean of the Faculty of Laws believes, calling for a re-assessment of the relevant legal provision.

“The judgment makes good law; it is the law itself which makes bad law,” Kevin Aquilina said, referring to Mr Justice Giovanni Grixti’s judgment on Tuesday rejecting a request by former Opposition leader Simon Busuttil for a magisterial inquiry into the Panama Papers revelations.

“Essentially the implication of this is that it serves as a disincentive for public spirited persons and honest whistleblowers to lodge complaints of such a nature in the future,” Prof. Aquilina said in answer to questions from this newspaper.

Under the law as amended in 2006, anyone, and not just the police or Attorney General, can request a magisterial investigation, known as an ‘in genere’ inquiry.

In his decision, Mr Justice Grixti said that the former Opposition leader had supplied a number of facts which in themselves did not indicate any wrongdoing. Prof. Aquilina said the argument could be made that the judge “expected a more onerous level of proof from Dr Busuttil than that expected from the Commissioner of Police or the Attorney General”.

“Of course, the police and the AG have resources at their disposal which an MP surely does not enjoy. However, the judge is bound by law and if the law places a more onerous burden on the public than it does on the police or the AG, it is not up to the judge to change the law but to implement it, more so when the law is clear.”

Asked whether the judge was right to doubt the legality of the Panama Papers leak, he said that according to the Criminal Code, the offence needed to be identified by the complainant and unless this information is provided the inquiring magistrate cannot carry out “a fishing expedition” to see whether someone has committed the offence.

It is better to have no remedy at law than a travesty of justice!

“While reference to the Panama Papers is material to such an inquiry, the evidence which has to be produced is the best evidence rather than documents which are unauthenticated as they derived from leaks from Mossack Fonseca servers.

“I do understand that the consequences of this – willed by the law – is that it places the complainant in a Catch-22 situation, more so if the complainant is not a whistleblower privy to the necessary documentation to make his/her case,” Prof. Aquilina said.

In an article on his blog last week called ‘Judge Grixti’s Catch-22’, lawyer Jacques Rene Zammit wrote: “You need an in genere inquiry to investigate, find and confirm the existence of proof that may be used for a future prosecution of a crime. In order to get an in genere inquiry going you need to provide the type of proof that would normally be found and obtained by the in genere inquiry itself. See? Grixti’s very own Catch-22.”

Prof. Aquilina said he had “no difficulty” with the judgment from a legal perspective, saying however that the “politics of the decree” worried him. 

“No person has the requite tools at their disposal to identify the applicable provisions of criminal law and to find the evidence to support such a charge. Essentially, the provision works out to be impracticable to implement. However, I place the blame for this on the legislator not on the judiciary.”

The decree as such complies with the rule of law, he said. “It is the legal provision which raises serious rule of law issues.

“This is because while the provision was notionally intended to place checks and balances upon the police and AG should these two public officers be perceived not to be carrying out their lawful duties or to abuse them, such checks and balances work out to be ineffective. It is better to have no remedy at law than a travesty of justice!

“The course of justice is therefore perverted when the law allows a remedy to the citizen which, as a matter of fact, is no remedy at all.

“Hence the provision needs to be re-assessed in the light of the Criminal Court’s decree.”

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