Yesterday’s ruling was not handed down by a criminal court.

The Court of Appeal conceded an argument brought by Stewart that the first court last February behaved as if it was a criminal court or spoke in its ruling in a way that blurred the lines. The Court of Appeal yesterday rubbed out aspects of the first decision in February that appeared to rule that crimes had occurred. A civil court doesn’t need to reach that conclusion to decide that a contract is invalid. Breaches of the contract are quite enough. And the civil court is not the right place to determine someone’s criminal guilt because the process of answering to an accusation of a crime is entirely different from a litigation between two sides.


Even as the Court of Appeal clawed back on the first court’s conclusions on criminal guilt, they hovered spectrally on the government with doom laden remarks about ministers’ responsibility.

“It is not known why those whose duty it was to protect the national interest failed to do so,” the court said yesterday.

That phrase means a lot more than it says. The court itself rules out innocent explanations. There are no cretins in this story. Joseph Muscat and Konrad Mizzi, to use a Maltese phrase, are no thumb-sucking innocents. They weren’t idiots and they weren’t guileless victims. The court defined what the failure in duty amounted to: it was collusion, wilful and conscious, aimed at illicitly flowing public money into private pockets.

But why? “It is not known why,” in the context of this decision is the same as saying ‘the why does not matter for the purposes of this case.’ All that matters is that this has happened, and this contract is therefore invalid.

The courts didn’t have to say it but it’s there in their silence. If Joseph Muscat and Konrad Mizzi and whoever else is involved did not collude with VGH/Steward because they were idiots, they “chose to serve the interests of VGH/Steward over the national interest” because they got a cut of the embezzled public money.

Joseph Muscat can’t sue anyone for defamation. Thanks to the work of journalists, we know he received piles of cash, a share of the money that the Americans paid the original owners of the hospitals concession. He got his tangente and we saw it go in. We don’t need to surmise he got illicit money from his wife’s serial cosmetic surgery or her penchant for naff jewellery. We saw the money.

He describes it as earnings from consultancy but only the colluding, complicit, corrupt, bent cop Angelo Gafà, of whom it can only be said that it is not known why he fails systemically to protect, as is his duty, the national interest, believes Joseph Muscat’s stock excuse.

Last February the first court saw so much evidence of crime that it forgot itself and ended up implicitly convicting VGH/Steward of fraud when it had no place to do so. The Court of Appeal chided the first court for its excessive enthusiasm. But the Court of Appeal shows its sympathy with the frustration of the first court.

Nay, they went beyond the first court. As Chris Grima put it yesterday the first court saw the fraud on the concessionaires’ side, closing an eye to what the government was doing. The Court of Appeal opened both eyes. There has been collusion, they said. There has been dereliction of duty.

Judges can only decide cases brought to them. But there’s a frustrated, reverberating roar in the words they choose. If they had chosen another career and been cops instead of judges, they seemed to want to say, they’d be prosecuting the perpetrators of this “collusion”.

They’d be doing their jobs. Unlike some others, they would not be accused of dereliction of their duty.