The assassination of journalist Daphne Caruana Galizia marked the darkest day in Malta’s political history. It followed repeated warnings that this government was seriously eroding the rule of law.

The Sunday Times of Malta yesterday looked back at some examples of its record so far.

“We are not interested in justice without change,” wrote Daphne Caruana Galizia’s sons, Matthew, Andrew and Paul, in a Facebook post last week calling for the resignation of Prime Minister Joseph Muscat.

“Justice, beyond criminal liability, will only be served when everything that our mother fought for – political accountability, integrity in public life and an open and free society – replaces the desperate situation we are in.”

A flawed Constitution has led to serious institutional failures over the years. The Labour Party has been accused of exploiting these flaws to its own advantage despite being elected on a call for change. The Opposition, legal experts, civil society groups and the independent media have repeatedly flagged up the systematic undermining of independent institutions since Labour’s return to power in 2013, warning of the persistent erosion of the rule of law.

If law enforcers fail to discharge their duties impartially and independently, then the rule of law is undermined

The separation of powers, proper judicial control and the equality of citizens before the law are essential to the proper functioning of a democracy.

Instead, the government is under attack for creating a system dominated by clientelism, nepotism, cronyism and indifference to wrongdoing, where its own appointees do its bidding instead of acting in an independent manner.

The record includes:

Five police commissioners in four years

One of the first things the Labour Party did when it assumed power was to remove the respected police commissioner, John Rizzo, who was investigating former European Commissioner John Dalli. The government has used its prerogative to appoint four more police commissioners in four years, which is unprecedented.

Mr Rizzo was replaced by Peter Paul Zammit, who dropped charges against a man who had assaulted police officers, as well as failing to cooperate with the EU’s anti-fraud agency, OLAF, saving Mr Dalli from prosecution.

He was replaced by Ray Zammit, whom an independent inquiry later accused of gross negligence over his handling of a shooting involving a minister’s driver. He resigned but was given a new role as head of the traffic enforcement agency. His sons, both police officers, were exposed as having business involvements while still in the force.

Michael Cassar was then appointed but resigned after only a year and four months in office, citing health reasons. His resignation came a day after he was handed a report by the Financial Services Intelligence Unit (FIAU) asking him to probe the Prime Minister’s chief of staff Keith Schembri, who was mentioned in the Panama Papers  along with minister Konrad Mizzi.

His replacement, Lawrence Cutajar, said there was no need for an investigation on their involvement in the Panama Papers. He became notorious for being filmed on the way to a rabbit restaurant in Mġarr – instead of launching into action to investigate Pilatus Bank – in the hours following new revelations by Ms Caruana Galizia. A former Pilatus employee had claimed that a third company mentioned in the Panama Papers, Egrant, belonged to Michelle Muscat, the Prime Minister’s wife.

The Attorney General – an inconvenient truth

When still in Opposition, Minister Evarist Bartolo had called for the overhaul of the operational set up of the Attorney General’s Office: “It has a conflict of interest in certain sensitive situations, when it has to give legal advice about prosecuting people that might embarrass the party in government”.

The office is financed by taxpayer money and controlled by the government, and its staff is recruited and promoted by the government. The office has no operational autonomy and independence. “If we really want to fight corruption and reduce it, introduce fair governance and the rule of law in substance and not just on paper, we must take all the necessary steps to have the Attorney General’s Office removed from any sort of covert or overt political control by the party in government,” Mr Bartolo had said.

Yet when the Labour Party was elected, it did nothing to address this problem – which appears to have been fully exploited under this government.

Last April, for example, The Sunday Times of Malta revealed that the Police Commissioner and Attorney General Peter Grech, who also chairs the FIAU, had received information from the unit nearly a year earlier that Mr Schembri may have received kickbacks from the sale of Maltese passports.

Reports of suspicions of money laundering involving both Mr Schembri and minister Konrad Mizzi were drafted by the FIAU.

Yet no action was taken on any of these cases. This newspaper revealed that the police had even failed to follow procedure and register the reports. They were eventually leaked during the 2017 electoral campaign.

Government control of institutions

Many of the principles in Malta’s Independence Constitution were inherited from the British in 1964, and successive governments have failed to address the evident need to strengthen its checks and balances. Constitutional bodies from the Broadcasting Authority to the Public Service Commission are controlled by the government. The political nature of appointments has rendered several institutions and other entities toothless, unable to fulfil their duty of keeping the government in check.

The Prime Minister’s appointment, as a person of trust, of Tanya Borg Cardona as chairperson of the Broadcasting Authority in 2016 was one example. Devoid of any competence in broadcasting, Ms Borg Cardona was forced to resign after only 14 months.

Three NGOs lambasted the appointment of the Environment Minister’s daughter to the post of Commissioner for Justice, saying in an open letter to the Prime Minister that her appointment was “an assault on our democracy and stands in stark contrast to the meritocracy promised by this government throughout the previous two electoral campaigns”.

In their open letter, Aditus Foundation, Integra Foundation and The Critical Institute added: “This unashamed disrespect for Malta’s justice system, including for all the persons who interact with it in their personal or professional capacities, is unacceptable. Such political nepotism is symptomatic of a much deeper problem… such decisions obscure the lines separating the legislative, executive and judicial branches of government.”

Justice Minister Owen Bonnici’s plan to have a new parliamentary committee to scrutinise public appointments is seen not to go far enough. The proposed model has been described by the PN as yet another rubber-stamping tool for ministers’ decisions.

 

Whistleblowers of choice

The government boasts of the introduction of the Whistleblower Act, but the protection it yields has only been granted to a select few. The man who accused former Nationalist Party Minister Tonio Fenech of wrongdoing, Carmel Magro, was awarded over €1 million in government contracts, this newspaper revealed.

On the other hand, the whistleblower in the Egrant case faced a mudslinging campaign by the government and eventually fled the country.

Information control

The Fourth Estate – the media – also functions under immense political pressure in a landscape that is already dominated by the two main political parties. The Press Act is used to silence independent journalists – Ms Caruana Galizia had 41 libel cases pending against her at the time of her death. 

Despite the enactment of the Freedom of Information Act, the law has loopholes to be exploited. The government still refuses to divulge information in the public interest, such as the contracts signed over the provision of electricity, the privatisation of public hospitals and the sale of passports.

Warnings from the top

The 2014 Ombudsman report underlined the need to strengthen the office, which has come under attack from the Labour government for investigating complaints by army officers. The courts threw out the government’s arguments. In the 2018 Ombudsplan, tabled in Parliament this month, Ombudsman Anthony Mifsud highlighted the need for more government transparency and accountability.

The plea followed a pointed warning by Chief Justice Silvio Camilleri on the threats to the rule of law: “If the persons who occupy those positions [law enforcers] fail to discharge their duties impartially and independently, then the rule of law is undermined.” In a speech of major importance, Dr Camilleri said the rule of law cannot reign if the laws which are enacted are not applied and enforced. The laws need to be enforced by those authorities vested with the power to enforce them.

A core principle: the separationof law and politics

One core component of the rule of law is the separation of law and politics. According to the UN, giving meaning to that principle requires:

■ Effective and thorough investigation of all crimes, particularly where the involvement of State officials is suspected;

■ Refrain from using the criminal process to punish anyone for political expression or to infringe upon the principle of judicial independence;

■ Provide effective legal protection for government whistleblowers who release information of public interest to the media or the public.

Advocates for Rule of Law want report on constitutional reform

One of the founders of Advocates for Rule of Law, a group of lawyers who campaigned for the strengthening of the rule of law at the last general election, wants a constitutional reform report to be drawn up by legal experts and civil society.

Speaking in the aftermath of the assassination of Daphne Caruana Galizia, Conrad Portanier told The Sunday Times of Malta: “This is an unprecedented state of affairs which requires action on many fronts. We need determined efforts to reinforce the rule of law and to eradicate the sprawling cancer of impunity.

“To take a leaf from the Chief Justice’s book, the courts are impotent without an effective police force and a strong Attorney General.  The executive arm of the State has become the weakest link in the chain.

“People are losing faith in some of our key institutions, and civil society needs to rise to the occasion. I propose that, in the interest of the common good and future generations, Parliament convenes a group of respected persons from academia, retired judges, veteran lawyers and civil society generally to produce a report for serious reforms to our Constitution.”

Dr Portanier said the status quo “has become untenable”.

Advocates for the Rule of Law is an initiative of a group of lawyers in their personal capacity who want to raise awareness generally about the importance of the rule of law in a democracy. 

Dr Portanier, Jacques René Zammit, Conrad Cassar Torreggiani, Andrew Zammit and Damien Degiorgio were among the founders of this initiative, but many other lawyers have contributed in different ways to the ideas behind the campaign.

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