On the side of the victims

The classical distinction between a civil case and a criminal case is that the parties to a civil case are private persons, individuals or corporate entities seeking to settle a dispute or obtain satisfaction, the one from the other. One of the parties in a criminal case is the state, the crown, the republic, the people, the commonwealth, the government: there are many formal ways to call the side of the prosecution but all mean the same thing. It is that abstract fiction we all agree to collectively imagine as an impartial advocate of truth and of what the law says about it. The other party is, classically, the defendant, the person who must answer the charges brought against them by the prosecution.

We recognise that the alleged perpetrator of a crime is not its only protagonist. A killer is such because they have killed someone. A thief is such because they’ve robbed something from someone.

If that someone, or their relatives who suffered some loss by extension of their association to the primary victim of the crime, wish to seek satisfaction for their loss they must go to the civil court and battle for their interests there. In the criminal court they are but witnesses, a tool in the case for the prosecution.

They must stay out of the chamber when other witnesses are testifying to ensure they don’t align their evidence tactically. They must submit their evidence to cross-examination, unassisted, with no one speaking on their behalf. And they must limit themselves to answering what they’re asked, denied the opportunity to express the true significance of their suffering in the presence of the person the state is accusing of causing it.

It hasn’t been centuries that we’ve started improving this, allowing victims to be represented by their lawyers during the proceedings against the people accused of violating their interests, giving voice to their concerns, and allowing them at the very least to know what’s going on and to serve as a constant reminder to everyone in that chamber — prosecutor, defendant, judge, audience – that this is not about knives or bank accounts or forged documents, it’s about people and their suffering, names and surnames, families, victims.

It’s not perfect, but it’s something.

One way it does not work is when victims don’t see themselves as being such. People who are trafficked for slavery, for example, who are thankful for their miserable lot because they know no better, because the hell they’re in is cooler than the hell they’ve escaped. Victims of domestic abuse, hostages who are grateful to their assailants, are also classic examples. As are victims who see the prosecution of their assailants as an unwanted intrusion by the state because their lifetime kidnappers are the devil they know and the one they fear less.

In these situations, we argue, the state has a greater responsibility than the classic prosecution of the perpetrators. The state must take into account the rights of victims, protect them, ensure they are spoken for. It is not the same thing as prosecution. It is a distinct function that is sometimes in conflict with the prosecution. At best it serves as a conscience for the prosecution.

The rights of victims ought not to be ignored even if the victim does not recognise themselves as such. What I describe is a principle, a political ambition even. There’s very little provision for this in the law, and these ideas we must campaign for and argue for even while the government refuses to indulge any manner of conversation about the improvement of the application of law in Malta.

Which takes me to the point I want to make. I wrote yesterday about the first hearing in the highly complex prosecution of the case against the perpetrators of the hospitals swindle. And I wrote in there about how there was no one in the chamber to argue for the victims of the crimes because technically the government of Malta is the victim of the crimes Joseph Muscat is alleged to have committed in leadership of the criminal organisation he headed. Withstanding the fact that he was the head of that government.

The courts hearing the evidence against Muscat would have, I presume, admitted the State Advocate parte civile in the case the Attorney General is bringing against the former prime minister and his gang. The State Advocate, as the attorney for the government, would have had an obvious legal standing. “These people swindled me,” the government could complain, “and I was unable to give people the cancer treatment I promised them they were entitled to.”

It needs to be said. It needs to be said that while Keith Schembri allegedly helped siphoning money off the funding for cancer care for ordinary people, he got Yorgen Fenech to pay for his treatment at the Mayo Clinic. Someone needs to say that in Keith Schembri’s trial. It may not be strictly relevant to his prosecution, but the exquisite pain of people, completely oblivious to the causes of their suffering, needs to be spoken of. What justice would it be if it isn’t?

I’m reminded of this woman outside the courtroom yesterday spewing her hate at Daphne Caruana Galizia and relating it to her own cancer. But failing to relate her cancer to the charges the republic has brought against Joseph Muscat, Keith Schembri, and the rest of the gang.

She doesn’t know it but she has rights. She doesn’t know it but whether it is because her taxes were skimmed off or because her right to free healthcare has been compromised someone should speak for her in the case brought against the people who have robbed her.

It does not matter that she is mentally utterly captured by them and she believes her captors to be her benefactors. It does not even matter that she is wilfully cruel to the people who spoke or speak on her behalf and in her interest.

I realise I sound patronising and I could easily be accused of arguing for a paternalistic state. The reason for that is that what she looks like she’s doing is exercising her political agency, fulfilling her sacred democratic right to be utterly wrong. She thinks this is politics. She thinks she can place the misconduct of Muscat and his gang against the salary increase ministers awarded themselves with too little fanfare under the Lawrence Gonzi in a weighing scale and find the matters equivalent or even Gonzi’s actions even more reprehensible than her Joseph’s. It would be patronising and paternalistic to presume that just because I disagree with her politics, I am somehow entitled to have my opinions somehow sway over hers.

You look at her and you think politically as well. You think about the way she votes and the politicians she supports, and contrast it with the way you vote and the politicians you despise.

You’re as wrong as she is. She is wrong in thinking this is about politics. Her confusion comes from the fact that the crime we are talking about has been perpetrated by politicians. But it’s still a crime. It’s not a political act. The liberal tolerance of the political insanities of others is not useful here. What matters here is the rights of victims and the duty of the rest of us in society to protect those rights and speak for them and denounce their violation whenever they occur, whether the victim realises they are being violated or not.

The fact is she’s as much a victim of corruption as you are. You realise everybody is. Everybody either pays taxes or requires public health care or a combination of both those things.

The notion that the government is the victim of this fraud is purely symbolic, one of those arcane legal fictions designed to make sense of things when things hardly make sense. The Republic of Malta charging the former head of the government for defrauding the government is elegant and symbolically powerful. But it’s also an incestuous mess of conflicting motivations.

Consider the permanent secretaries charged with complicity in these crimes and how they complained that the attorney general who charged them served as their legal advisor when she was state advocate just a few years ago.

Consider, more seriously, how Robert Abela, head of the government who is supposed to be the victim of this crime, has defended, only very slightly more eloquently than the woman in this video, Joseph Muscat its alleged perpetrator. Talk of a hostage in utter awe of their kidnapper.

Who is going to speak for the victims of corruption? Robert Abela? What instructions would he give the State Advocate if he were to intervene in this case? We can surmise from the mere fact that the State Advocate has not intervened in this case. No one will be speaking on behalf of the victims inside the courtroom in the case against Joseph Muscat and his gang.

The courts rejected applications by Repubblika to fulfil that role. The law would not have forbidden it as such but neither does it explicitly permit it. We have not exhausted all possible avenues to insist on this point but it really should not be that hard.

There are examples in our law when this sort of thing is explicit. A European Directive obliges states to enable NGOs to join criminal cases brought against defendants charged with harming the environment. There is no way the environment can speak for itself as a victim, so the law must recognise that NGOs – people whose only interest is the public interest – can intervene in these prosecutions and speak on behalf of the victim.

Malta, predictably, dragged its feet with implementing this measure and we’re being challenged by the European Commission to comply.

We need to extend this logic to the prosecution of corruption. Someone needs to speak in the interest of that vile, stupid, screaming woman. She has rights. And we want to be her advocates so that even the politicians she’s happy to allow to live in her mind must compensate her for stealing from her, her right to health care.