The newsroom at the Times of Malta yesterday must have had one of those fair and foul days.
The Macbridge investigation is a coup of high-quality journalism. It demonstrates the effectiveness of collaborative journalism involving reporters on the beat in Valletta, Hong Kong, Shanghai and Nanjing. And it demonstrates the value of investigative journalism as the team patiently, over months and years of work, untangled a web designed to confuse the most sophisticated fiscal authorities of the world. Times of Malta had every reason to be proud of Jacob Borg who, for yesterday’s show alone, deserves whatever passes for an Oscar here.
But without giving reporters time to clink virtual glasses across their zoom screens, a decision was handed down by Magistrate Rachel Montebello that effectively criminalises the work journalists are doing.
The issue is around the publication of a series of stories, principally but not exclusively on Times of Malta, based on conversations found in Yorgen Fenech’s phone when he was arrested.
The stories are not strictly speaking about the murder that Yorgen Fenech is accused of ordering. We are not talking about some chat Yorgen Fenech may have had with some accomplice discussing some aspect of the murder.
We are talking about conversations that Yorgen Fenech had with people of power and influence – in politics and in the public administration – that demonstrate the unacceptable intimacy between people in politics and people in business.
There must be many other similar conversations held on the phones of many business-people and many politicians and many regulators and civil servants. But we can’t see those because none of them is going to give up their phone easily.
But Yorgen Fenech’s phone has been taken away from him and examined because of the murder investigation he is the subject of. So the information it contains, even if it may be irrelevant to the murder charge, is now available to sources who have spoken to news organisations, particularly the Times of Malta.
There are effectively three competing considerations that need to be made.
First, is Yorgen Fenech’s right to a fair hearing. The evidence against him needs to be heard in a structured manner, following strict rules of procedure that ensure he gets every opportunity to defend himself, to challenge the evidence brought against him and to have to deal only with evidence that is relevant to the case against him. He is entitled to face a jury of his peers who will have an open mind at the beginning of his trial and only determine his guilt or innocence on the basis of what they hear in the courtroom at his trial.
Second, that everyone is entitled to privacy and that if Yorgen Fenech had conversations that were not intended for public consumption, then those conversations should remain private.
Third, that conversations that demonstrate a corrupt relationship between Yorgen Fenech as a holder of private interests and politicians and administrators of the public interest cannot be kept secret. It is in the public interest that they are published. “Public interest” does not mean ‘the public would be interested’. The public may be interested in the favourite underwear of the Duchess of Sussex. But that does not mean that it is in the public interest for that information to emerge.
‘Public interest’ means that it is the public’s right to know what relationships their politicians and administrators are keeping and what wrongdoing they have sought to cover up. When there are public interest grounds for information to emerge, there isn’t a question of whether the right to free expression enjoyed by journalists can be exercised. This is not about the rights of journalists. This is about citizens’ right to know. Journalists don’t merely have a ‘right’ to satisfy citizens’ right to know. They have an obligation to do so.
Compare that with a doctor. A doctor doesn’t have a right to treat a wounded person. It’s not something she can opt-out of. A doctor has a duty to treat a wounded person.
If journalists, for example, know that a government minister is corrupt but for whatever reason keep that information to themselves they are not merely doing that politician a favour. They are breaching the trust of the public.
Consider this example. Had journalists known in 2013 that Chris Cardona had been called in for questioning on the day of a 2010 armed bank robbery, should they have kept that knowledge secret? Of course, they’d also need to be fair. They’d need to say that Chris Cardona was released without charge and they’d have to give him the opportunity to explain and if he prefers, to deny any wrongdoing.
But the information is material, certainly for someone about to express their voting preference in 2013 between a candidate who was close enough to a bank robbery to end up in a conversation with the police and all the other candidates on the ballot sheet.
Similarly then, people should know what conversations Yorgen Fenech had with Joseph Muscat, Keith Schembri, Rosianne Cutajar, Edward Zammit Lewis, Pierre Portelli, Heathcliff Farrugia and others. If journalists know, they have an obligation to inform their public about it.
So we have three considerations that are competing for precedence here. The first one to go down, as I see it, is Yorgen Fenech’s right to privacy. He can stuff that. As can the politicians and administrators who only held those conversations with him in private because if they held them in public they would be toast. The right to privacy is not a tool to allow people to hide wrongdoing. Everyone is entitled to go to the toilet behind a closed door. But if a robber breaks into my house to have a shit in my loo, I’m going to knock the door down.
Then there’s the question of whether the leaks of these chats materially prejudice Yorgen Fenech’s right to a fair hearing. Just because the public knows that Yorgen Fenech paid Rosianne Cutajar a big pile of cash just before she stood in his defence at the Parliamentary Assembly of the Council of Europe, does it become impossible for a juror to make an autonomous decision on whether Yorgen Fenech is guilty or innocent of murder?
I think this question has not been materially considered by Magistrate Rachel Montebello who accepted Yorgen Fenech’s lawyers’ request to persecute journalists who published these leaks. There is no discussion in her decrees about the material impact of what has actually been published on the proceedings she has the responsibility to preside and protect. There is little examination on whether there is any material impact at all. It is just assumed there is because Yorgen Fenech’s lawyers think so.
There is, to be sure, a weighing of Yorgen Fenech’s right to a fair hearing against the reporters’ right to free expression. But as explained here I don’t think that’s really the point. The point here is: is there a material risk to Yorgen Fenech’s right to a fair hearing if we know that Yorgen Fenech paid money into the PN or funded Rosianne Cutajar’s polling expenses? And does that risk outweigh the public’s right to know that Yorgen Fenech did those things?
The Magistrate seems to assume journalists did not make this appraisal with sincere agony. Journalists take these difficult decisions every day. But it’s not only magistrates that have to recall their obligations to the public good when they make decisions. Journalists have a vocation for the public good as well, though the public often does not recognise a public service when it is provided with one.
Now it seems journalists are being subjected to criminal investigations and charges of contempt for justice precisely for answering that calling. Though if I’m honest I have to wonder what the police or the courts can do. Are they considering waiving a journalist’s right to protect their sources? Surely not. I hope not.
A facile call to action would be to ask you to support freedom for journalists. That’s not what I’m doing. I’m asking you to demand that your right to know what your politicians and civil servants are up to is respected. By the courts as well.