The Constitutional Court today opened for business in spite of the Easter holidays to hear an ‘urgent’ plea by Konrad Mizzi filed 15 minutes before the court registry closed last week for the term break.
Konrad Mizzi does that. Fifteen minutes before the last Christmas break he filed another of his grand claims to protect his individual rights, which he later withdrew. Within a couple of weeks of his application he found it was no longer convenient to argue on the matter. Now, it’s become fundamentally important again.
I cannot emphasise enough how absolutely surreal it is for a government Minister to sue the government he belongs to. This is not some government employee who is suing their boss because they think they were treated unfairly. A government Minister is the government. The situation is truly schizophrenic, and I mean that in the pre-politically correct, insensitive manner of the old form of that word.
Konrad Mizzi’s lawyers (because of course he did not deign to show up in the Court building that opened for the pleasure of his pique today) forcefully argued why Joseph Muscat, Chris Fearne, Edward Scicluna and so on are denying Konrad Mizzi his fundamental human rights: his right to a fair hearing even.
Appearing for the government of Malta was the Attorney General who in matters such as these is not autonomous from the politicians who happen to be running the government of the day. On the contrary the Attorney General is meant to function within government policy and act on its instructions.
This afternoon Konrad Mizzi could very well be having a meeting with the AG’s office to discuss the business of his Ministry: the same office he sued this morning in the highest court of the land.
If you’re confused, I don’t blame you.
Let’s refresh some background. What’s Konrad Mizzi’s big complaint? Repubblika and Simon Busuttil have, separately, asked the Magistrate on duty to open an inquiry into the Panama Papers. The Magistrate has not decided on that request one way or another. The matter has been with her for 6 weeks and she’s asked Konrad Mizzi (and Keith Schembri) what they make of the request.
Presumably they said they disagree with it, but we have no way of being sure of what they said because though Konrad Mizzi and Keith Schembri got to receive a copy of what Repubblika and Simon Busuttil said about them, Repubblika and Simon Busuttil do not get to see how Konrad Mizzi and Keith Schembri replied.
Konrad Mizzi also asked the Magistrate not to decide on the matter on whether an inquiry should start because he would be asking the Constitutional Court to rule that the bit in the law that allowed Repubblika and Simon Busuttil to ask for an inquiry is, in and of itself, a breach of his rights.
Playing safe, and in case the Magistrate ignores him, Konrad Mizzi also asked the Constitutional Court to, urgently, order the Magistrate not to decide.
So: first monstrously surreal occurrence is that a government Minister sues the government he belongs to. The second monstrously surreal occurrence is that this Minister is with a straight face arguing that it is a breach of his rights that an ordinary citizen has the right to even ask that he be investigated.
It almost sounds like a plea of lese-majeste. How dare Repubblika, the Minister is saying here, even ask for an investigation into a Minister? It’s almost worse if he tries to argue that he wasn’t making a case for Ministerial privilege but rather that such a request is illegal irrespective of whom it was being made about.
Simon Busuttil’s and Repubblika’s lawyer, Jason Azzopardi, who was on a furious roll this morning, made the analogy with someone who were to advertise in the newspaper to announce they meant to hold up a bank the following Sunday. But then complained their rights were breached because the Police asked them anything about that advert.
How can anyone have the right not to be investigated at all?
To her unqualified credit Victoria Buttigieg argued for the Attorney General without regard to the fact that she was objecting to the arguments of her effective boss: the Minister. Monstrously surreal occurrence three was seeing the Attorney General charge a government Minister with “quasi abuse of the law” for asking the Constitutional Court to hear the case at all when he could have asked for a decision directly from the Magistrate. She could have done without the ‘quasi’.
And the Attorney General brought up yet another monstrously surreal situation. This needs some explanation.
As explained, Konrad Mizzi asked the Constitutional Court to order the Magistrate to stop considering Repubblika’s request on an inquiry while it (the Constitutional Court) decides on whether it is true Konrad Mizzi’s human rights have been breached.
The Attorney General cautioned that this sort of intervention – an interim measure, in the jargon – is very rarely granted by the European Court of Human Rights. It was shocking to hear Konrad Mizzi’s lawyers argue, without any embarrassment, that the Maltese Courts should ignore the practices of the European Court of Human Rights in such matters.
There was a Minister of your government, in the process of arguing for the protection of his own human rights, arguing also for the implicit jeopardy of the human rights of everybody else.
That’s not all. Repubblika and Simon Busuttil asked the Constitutional Court to be able to observe and comment on the human rights case filed by Konrad Mizzi. The reasons are self-evident. Konrad Mizzi was claiming Repubblika and Simon Busuttil had no right to file a request for an inquiry into the Panama Papers. As you might expect Repubblika and Simon Busuttil would want the opportunity to say why it is their right to do so.
There was Konrad Mizzi – in the midst of complaining his right to a fair hearing was breached – arguing that Repubblika and Simon Busuttil should not be heard. Monstrously surreal occurrence five.
The Court itself – presided by Judge Joseph Zammit Mckeon – volunteered monstrously surreal occurrence six. He reminded Konrad Mizzi’s lawyers that he had only very recently allowed lawyer Joe Brincat to intervene in the case filed by me – the author – against the government over the right to protest at the Great Siege Memorial in Valletta.
Why would I not let Repubblika intervene in Konrad Mizzi’s case now if I allowed Joe Brincat to intervene in Manuel Delia’s case just a few months ago, the Judge implicitly asked?
He was only highlighting just how desperate the argument being made by Konrad Mizzi was. He proceeded to over-ride Konrad Mizzi’s objections and grant Repubblika and Simon Busuttil the right to intervene in his case.
Then came monstrously surreal occurrence six. Konrad Mizzi’s lawyers, despite their frantic urgency that forced the Constitutional Court to meet in the Easter break, announced they would appeal the Court’s decision to allow Repubblika and Simon Busuttil to intervene.
Are you still sure this case is so urgent, the Judge pointedly asked? This appeal – which must follow the granting of a permission to appeal which they still need to ask for – will delay this process by weeks. And consider that Konrad Mizzi’s complaint rests on his claim that the actions of Repubblika and Simon Busuttil delay justice in his case. But he’s the only one doing any delaying.
At the end of the day in Court, the Judge told everyone he would be deciding today week on Konrad Mizzi’s urgent request on whether he should order the Magistrate not to give a decision on whether to start inquiry. It was clear the Judge was honouring Konrad Mizzi’s request for urgency. He worked the Easter weekend to be ready for today’s hearing and his next weekend would go into preparing his decision on the “interim measure” request.
But there was still time for Monstrously Surreal Occurrence seven. Konrad Mizzi’s lawyers are not in town next week to hear the decision of the Judge and they absolutely insist to be in the room when it is being pronounced. So the urgent decision is now shelved for two weeks while we wait for Konrad Mizzi’s legal teams to return from their travels.
Who’s delaying justice now?
The judge’s decision to accept Repubblika’s and Simon Busuttil’s request to intervene in Konrad Mizzi’s case is a hollow, pyrrhic victory. Important to be sure. But a very small step towards the real justice that is being asked for: that an investigation into the Panama Papers is actually initiated. Something that should have happened 3 years ago.
We now have to wait 2 weeks for the next steps. Except that we shouldn’t have to. The duty Magistrate could very well pronounce herself on the request for an inquiry tomorrow morning. There’s no reason why she should wait another two weeks to decide. There’s nothing stopping her.
And of course there’s an even more glaring reality. There’s nothing stopping Laurence Cutajar from doing his job and starting a police investigation into the Panama Papers. He has no reason to wait for the Magistrate to start an inquiry. He has even less reason to wait for a Constitutional Court to decide whether the right to ask the Magistrate for an inquiry is a breach into Konrad Mizzi’s imaginary rights.
Not only can the Police Commissioner start an investigation. It is his duty to do so.
When he does his job, then truly a proper victory would have been secured.
Konrad Mizzi wants us all to give up. He keeps kicking the can down the road hoping there’s no one left to pick it up and throwing it back at him. His delaying tactics are frustrating; surreal even. But there’s one reality not even Konrad Mizzi can overcome: the can stays there. As do we.