Let’s not get too excited. Keith Schembri had a terrible day in court last week. But it was not worse than the terrible day he had when the Panama Papers came out. The corrupt roadmap to their personal enrichment was never meant to emerge into public awareness. We were never meant to know. The brave face of indifference barely conceals their anger that they have been found out.
But this does not mean justice is inevitable. Far from it.
Consider how they fought tooth and nail to resist the conduct of any criminal inquiry. Consider all the appeals they filed to prevent it from happening.
Let’s do this in chronological order shall we?
February 2016: Daphne Caruana Galizia reports that Keith Schembri and Konrad Mizzi own Panama companies folded in New Zealand trusts. They deny it.
April 2016: The Panama Papers emerge that show that Keith Schembri and Konrad Mizzi did indeed own Panama companies and had been lying.
Simon Busuttil comments that what has emerged from the Panama Papers shows Keith Schembri was corrupt. Keith Schembri reacts by suing Simon Busuttil for libel.
July 2017: Tired of waiting for the police to get out of bed, Simon Busuttil asks for an inquiry. Magistrate Ian Farrugia agrees and orders one. The Prime Minister and his Gang appeal the decision and a drawn-out process of battling the appeal in court starts.
October 2017: Keith Schembri testifies in the libel suit he has filed against Simon Busuttil. He says he is not corrupt. On the same day Daphne Caruana Galizia, the journalist who revealed it all in the first place is killed by car bomb.
April 2018: The Daphne Project reveals that 17 Black (and MacBridge) were identified as “target clients” to pour millions into Keith Schembri’s and Konrad Mizzi’s Panama companies.
October 2018: Reuters report that 17 Black is owned by Yorgen Fenech.
November 2018: Owen Bonnici says in Parliament that a 17 Black inquiry has started “several weeks” before the Reuters story in October. The inquiry was kicked off at the request of the police. Owen Bonnici says the inquiry is being led by Magistrate Charmaine Galea.
January 2019: Joseph Muscat and Panama Gang’s appeal from Panama Papers inquiry is accepted by Judge Giovanni Grixti. The order for an inquiry is thrown out.
April 2019: A fresh request for Panama Papers inquiry by Simon Busuttil and Repubblika is accepted by Magistrate Doreen Clarke. She orders that the allegations made by Simon Busuttil and Repubblika are added to Charmaine Galea’s 17 Black inquiry. The inquiry is still ongoing.
November 2019: Ordered to stand for cross-examination in his own libel suit Keith Schembri withdraws his libel suit against Simon Busuttil.
Clear? OK. Let’s move on.
When Keith Schembri last week was trying to extricate himself from the obligation to testify in his own libel suit he said he would not do so for fear of incriminating himself. That was a stupendously telling admission which is of course why people got so angry and at the same time moderately hopeful that this time Joseph Muscat would at last do the right thing, albeit 1,322 days later than he should have as Moviment Graffitti put it last week.
But there was another consideration that is more politically convenient and that Joseph Muscat clung to yesterday in his impassioned defence of his so-called assistant. And that is that Keith Schembri is testifying in Charmaine Galea’s inquiry. This is being presented as a reason justifying the self-sacrifice of foregoing the gratification of winning a libel suit against Simon Busuttil.
This is, of course, complete bullshit. Here are the reasons.
Firstly, criminal and civil processes are separate. Keith Schembri is perfectly entitled to protect his reputation in the civil court pursuing his libel suit while he is being investigated in a criminal inquiry. Keith Schembri and the rest of the Panama Gang argued forcefully that they are entitled to use all the rights the laws give them when they appealed an earlier order for an inquiry into their conduct (the July 2017 order which they then successfully appealed). There was no reason for Keith Schembri to forego what he’s perfectly entitled to at law.
Secondly, any secrecy surrounding the criminal inquiry conducted by Charmaine Galea was burst by Owen Bonnici in November 2018, a year ago. Even if Keith Schembri can argue he did not know an inquiry would start into 17 Black when he first filed the libel suit, one was already ordered after Simon Busuttil first’s request in July 2017. He had not even testified to open the libel suit then. He could have very easily withdrawn the case at the time. Or he could have withdrawn it this past full year since Owen Bonnici told Parliament the 17 Black inquiry has been ongoing. Or he could have withdrawn it once Doreen Clarke in April 2019 added Simon Busuttil’s and Repubblika’s fresh complaint about him to the Charmaine Galea inquiry.
That takes me to the other significant point here.
Given the dogged resistance to any investigation into their affairs at any stage, why did Keith Schembri not appeal the order for the Panama allegations to be added to Charmaine Galea’s inquiry? The order was identical to the July 2017 order which he appealed most forcefully. Why didn’t he do so this time round? Why isn’t he bothered Charmaine Galea is conducting a criminal inquiry into him?
I’ll add another detail for you. Konrad Mizzi – Keith Schembri’s partner in crime – did try to stop Magistrate Doreen Clarke from deciding, as she would in April 2018, whether to order an inquiry into the Panama Papers. He went to the Constitutional Court to say that the provision in the law that allowed Repubblika and Simon Busuttil to file a complaint against him breached his human rights. He asked the court to order Doreen Clarke to stop looking into the case while his human rights complaint is considered. The court refused his request and denied him leave to appeal that decision in front of a higher court.
Then, mysteriously, he withdrew his constitutional case. The case went to Charmaine Galea who would now have him with Keith Schembri as a suspect in the crimes of bribery, corruption and money laundering. After all the huffing and puffing, Konrad Mizzi no longer appeared to have a problem with being the subject of an inquiry.
Why? Why did Keith Schembri (and after trying very hard, even Konrad Mizzi) not use the means allowed to them at law to prevent Charmaine Galea’s inquiry when they had done so much to scupper an earlier identical order?
Does the Panama Gang fancy its chances with Charmaine Galea?
Charmaine Galea has certainly felt conflicted before where Daphne Caruana Galizia is concerned.
In December 2017, when the Degiorgio brothers and Vincent Muscat were charged with killing Daphne Caruana Galizia, Charmaine Galea refused to hear the compilation of evidence against them. Her reason at the time was that Daphne Caruana Galizia had mentioned her (Charmaine Galea) in blog posts concerning Labour Party appointees to the judiciary.
Daphne had pointed out when Charmaine Galea was first appointed that Charmaine Galea had been law office partner with then Deputy Leader of the Labour Party Toni Abela. Daphne described Charmaine Galea’s appointment as another Malta Tagħna Lkoll appointment.
If this was too much for Charmaine Galea to feel impartial enough to hear (though not actually decide much more than referring the case to trial) evidence about Daphne’s killing, is it not more likely for Charmaine Galea not to be impartial investigating the merits of Daphne Caruana Galizia’s reporting in the story of her life?
Did Keith Schembri and Konrad Mizzi happen to read that blog post about Charmaine Galea being a tagħna lkoll appointee and thought that having the inquiry into their conduct heard by her would help their chances? Is this why they did not appeal? Are they looking forward to another Egrant-like exoneration?
Consider something else Joseph Muscat said yesterday in defence of his so-called assistant. Joseph Muscat contradicted his theory that Keith Schembri preferred to keep his testimony for the inquiry rather than spill the beans in his own libel suit. The other reason he gave goes against the first one head on. He said Keith Schembri worried that should he have won his libel suit, Simon Busuttil would then be able to argue on appeal that Magistrate Victor Axiaq — who forced Keith Schembri to sweat last month’s curry in court — had a conflict of interest and his hypothetical decision of awarding Keith Schembri the case could be challenged.
There’s something very sinister here. Victor Axiaq said in open court someone had tried to approach him outside the court room to remind him he had a conflict of interest. His mother, apparently, worked for Keith Schembri’s businesses. If Simon Busuttil’s lawyers were disturbed by this (or were even aware of it at all before last Monday) they made no request for Victor Axiaq to recuse himself.
They could have grounded a recusal request also on the fact that as Repubblika’s attorney Simon Busuttil is appearing in Repubblika’s Constitutional Case about judicial independence that could conceivably see Victor Axiaq lose his job as he was appointed in April 2019 after Repubblika started its legal action.
But as it happens Simon Busuttil did not ask for Victor Axiaq’s recusal. It was not in his interest to do so. He had been itching for three years to get Keith Schembri to testify in the libel case. That would suggest that the only other possible answer for the question on who approached Magistrate Victor Axiaq in private – against all laws and norms of decency – has to be someone acting in the interests of Keith Schembri.
If this is true, we cannot but assume that Keith Schembri will not hesitate to step outside the law in order to encourage impressionable magistrates to choose his way.
Do not separate this from Labour’s 6-year focused campaign of stacking the odds in its favour and stuffing the judiciary with people it felt that one day may be needed to return the favour.
Also, do not separate this from the fact that while a libel suit (or a criminal trial, for that matter) happens in open court where we can all see if things are being done properly and with an adversarial set up where both sides get to ask questions to witnesses and argue on the evidence, a magisterial inquiry is not a court process as such. It happens (whatever it is) behind closed doors. The evidence is not cross-examined. There is no space to challenge the goings on, if anything actually does go on. As we learnt from the Egrant inquiry, we don’t even get to see the inquiry report.
Last week Keith Schembri found he could not control the outcome of a libel suit he started himself. But does he think he can control the outcome of a criminal inquiry the police – the same police who have done bugger all in the three years we have known he has owned a Panama company – have asked for?
Has someone had a private chinwag with Magistrate Charmaine Galea in the same way as someone had one with Magistrate Victor Axiaq?
Is this Keith Schembri’s get out of jail free card?
My word of advice? I know last Monday felt good and we could smell victory in the air. But do not smoke the cigar until the lady sings.