I wrote a few days ago that the first reason by tyrannies flounder is that there’s no one to prevent political leaders from making stupid mistakes. Leaders of democracies have an equal potential to blunder but checks and balances along the way can slow them down. Insider reports on the days leading to Robert Abela’s decision to vote down a Parliamentary resolution to have a public inquiry into the death of Jean Paul Sofia remarked how most MPs in the Labour Parliamentary group kept to themselves their objections to the leader’s line. Fear breeds silence. Silence breeds disaster.
No one appears willing to tell Robert Abela to stop violating the independence of the judiciary and the functioning autonomy of the criminal justice system.
On Monday he manifestly lied about Magistrate Marse Ann Farrugia. He said she “requested an extension” for the inquiry she was conducting when there is no such process in criminal law. Lawyers who know the system were patiently explaining what happens: at the expiry of every month after the first deadline, the magistrate must report to the attorney general that she’s still working on the inquiry. Spinning that into a “request for extension” was an outright lie intended to discredit her.
Eight months is a long time for an inquiry but there was no reason to single this one out. I didn’t see Robert Abela making a fuss about inquiries about prison suicides that have been going on for years. Or inquiries into the Panama Papers or corruption in the sale of the hospitals or 17 Black or many others.
And all those delays are principally systemic. They’re because writing inquiries is a part-time job for magistrates who must also be judges by day. They’re because magistrates depend on the police to gather evidence and the police are only cooperative when it’s convenient for them to be so. Systemic delays are in the design of the system which is something Robert Abela can do and should do something about. Much better that than bullying magistrates who cannot in practice reply.
Also, the magistrate’s report is not on the critical path to arrests. Even in this case, where the prime minister appeared to believe there was such urgency, the police waited for an ill-equipped magistrate to do the job for them, and moved to make arrests after she finished her report, instead of investigating and acting on the case as soon as they felt they had enough evidence to proceed.
The arrests came quite rapidly after the inquiry was completed as it turned out. There are arrests connected to the crimes at Pilatus Bank that were ordered by a magisterial inquiry nearly two years ago, and those have not happened yet.
Now, Robert Abela is calling on the attorney general to publish the magisterial inquiry report. Why? Why should she?
Let’s think this through, shall we? The magistrate’s inquiry is intended to preserve evidence that may be used against anyone accused of crime. The accused have a right to see that evidence to properly prepare their defence. That ensures equality of arms and due process. But, until their conviction, the accused are to be presumed innocent. Publishing the inquiry report is an incredibly serious threat to that presumption.
Without any opportunity to give their side of the story or to present a defence, the evidence that will be used against them is paraded publicly leading people to make their own judgements and, even if they are in fact guilty, giving the accused a very valid argument that they have not been given a fair hearing.
There are more reasons why the inquiry process is secret. The evidence could contain matters that are irrelevant to the specific case but that can start conjecture about innocent people who have been looked into during the investigation and found not to have a case to answer. A proper investigation will consider all possible leads, and most will run dry. But someone’s reputation can be ruined simply because their proximity to a crime made them a candidate for investigation.
Finally, a decision on whether to prosecute is taken by the attorney general. Granted there should be far better opportunities to scrutinise decisions taken by the attorney general but if the criminal justice system is to be blind, it should not be the prime minister who makes those reviews but the judiciary.
How is it that Robert Abela issues instructions to the attorney general to publish inquiry reports that in principle should be secret? What gives him the authority to even ask? What gives him the discretion to say this case should be opened to scrutiny and these other cases shouldn’t?
We know his motive here. The criminal inquiry investigated criminal responsibility, so he wants that published to implicitly exonerate his government from any political cause of the death of Jean Paul Sofia. Of course, that will be for the public inquiry to determine, but he’s still stuck on the tune he played when he was doing his best to avoid a public inquiry altogether.
In other words, he is bullying the judicial process and attempting to force it to break protocol because it is politically convenient to him.
If he’s allowed to do this what stops him from condemning his political enemies to the public’s derision without the bother of due process when it becomes convenient for him to do that? Who stops Robert Abela from publishing criminal inquiry reports that contain insufficient evidence to make a case in court but are enough material for One TV to twist into a spontaneous conviction?
We are often reminded of the basic rights that are associated with the criminal justice system. There should be a fair hearing, an impartial judiciary, equality of arms between the parties, full disclosure of the evidence to the defence, jury of the accused’s peers, and on and on.
But there’s an even more fundamental principle that underlines all this. It’s plastered as a huge motto inscribed in all Italian tribunals: La Legge È Uguale Per Tutti. The law is equal for all.
If the law says magisterial inquiries need to be secret, we can have a debate about why that should change, and, if we decide to change it, we change it for everyone. But Robert Abela is ruling by decree. He is improvising rules and procedures according to what is politically convenient to him.
In court the attorney general is screaming blue murder and mobilising all her resources to stop Repubblika from revealing the contents of a magisterial inquiry she suppressed for two years (Pilatus). And now, on demand, Robert Abela, who constitutionally has no authority over her whatsoever, is all but instructing the attorney general to publish an inquiry into a case where prosecutions might very well start before the weekend is out. All this why the justice minister stands idly by like the glorified microphone stand he was when he was a reporter on One.
Victoria Buttigieg won’t stop Robert Abela. Jonathan Attard won’t stop Robert Abela.
Someone’s got to.