‘Magisterial Inquiry’ Articles at j’accuse

“They don’t have to show us Catch-22,” the old woman answered. “The law says they don’t have to.”
“What law says they don’t have to?”
“Catch-22.”

Catch-22, Joseph Heller

Konrad Mizzi, the government and anybody with an interest in transforming the Mizzi/Schembri Panama Papers issue into yet another story of apparent ‘allegations’ are crying victory all over the social media following the Appeals Court decision to overturn a lower court’s decision to allow an in genere inquiry (inquest-inkjesta) to go ahead into allegations of money laundering by the government’s star-minister.

Ignorance of the law has always been abused of and politicians will continue to do so, as long as citizens are happy to be taken for a ride. The Court decision today is all about not allowing an inquiry to go ahead. It does not exculpate Mizzi – far from it. The whole judgment reads as a technical examination on whether or not the grounds exist for an in genere inquiry to go ahead. In layman’s terms the Judge was examining whether the report that was made was substantial enough to justify starting an examination of facts in order to preserve such facts for what could eventually be a prosecution.

The worry in today’s Malta is that the systemic breakdown that includes the breakdown of the rule of law has affected every branch of our democracy’s institutions. Our Justice Minister constantly takes pride in reminding everyone who complains that, among others, we have a faultless judicial appointments system. And yet.

Yet the Venice commission report clearly pointed out faults in this appointments system. The judiciary remain firmly within the hold and control of the executive – particularly with regards to their hopes for their future career development. It would not take much to begin to wonder whether judgments are being written in reverse – a decision is taken and then an excuse for a justification for a decision that grasps at straws to sound “law-worthy’ is conjured up as a supposedly good reason to reach that decision that has already been decided.

Judge Grixti’s ruling is faulty. There is no harm in saying that because, as I know very well myself, drafters of judgments are far from being infallible. It is not enough to claim that it is faulty though – an explanation must be given. @bugdavem on twitter gave the perfect explanation in a thread that I am reproducing below.

I will only add that Grixti seems to have come up with a Catch-22 situation for anyone wanting to report a crime with the hope to get an inquiry in genere going.

It goes something like this: You need an in genere inquiry to investigate, find and confirm the existence of proof that may be used for a future prosecution of a crime. In order to get an in genere inquiry going you need to provide the type of proof that would normally be found and obtained by the in genere inquiry itself. See? Grixti’s very own Catch-22.

Bugdavem on twitter

The catch with Judge Giovanni Grixti’s ruling is (and this is where you realise that the Maltese courts have – intentionally or otherwise – no understanding of money laundering), that attempted money laundering is in itself a crime punishable by 3+ years imprisonment.

What does that mean or entail? Money laundering laws set a low threshold for evidence given that, in practice, the machinations that might be employed by launderers or attempted launders could frustrate justice.

In a case of actual money laundering, the threshold needed for the prosecution is prima facie – at face value – that there is no logical or lawful explanation for the monies to be laundered. The Maltese courts have held jusrt this in the past and it is also clearly stated in the law.

Once that is proven then it is up to the defendent to prove to the satisfaction of the court that any monies and arrangements were in fact lawful and legitimate. This is the rule for actual money laundering as well as the threshold and burdens of proof required.

For attempted money laundering, the threshold is even lower since given that this is an “attempt” one would need to show prima facie the intention and preliminary steps taken to implement that intention.

In Judge Giovanni Grixti’s decision to reject even the opening of an inquest to saveguard evidence (ie, not even for a prosecution so the threshold is actuallylower) he ruled that he expected a level of evidence that is higher than the prosecution in an actual case of laundering .

This is the active part where he stated that is was incumbent on the complainant, here Simon Busuttil, to prove how the series of events and machinations were illegal (as opposed to the threshold of prima facie no logical or lawful explanation).

Anyone with half a brain can see how bizarre this is. The threshold to request a magistrate to safeguard evidence in attempted laundering which the Police won’t investigate is (by virtue of this judgment – J’accuse) actually (set) higher than that required by the Police to secure a conviction for actual money laundering.

The secret of comedy, they say, is timing. There is nothing funny about the making public of a launch of a magisterial inquiry into the amount of fuel consumed by the Leader of Opposition’s car. It is not funny at all. In actual fact it is rather worrying because it has all the makings of a perfectly-timed smear attempt. It would not be the first time in the history of this country that the machinery of one of the arms of the state is put into motion in an incredibly advantageous manner that serves the party in government. Those who are not prone to lapses of amnesia still remember the sudden summons of Alternattiva Demokratika’s Harry Vassallo when some long forgotten tax case suddenly became very very pertinent in the eyes of some police officers in Sliema.

The magisterial inquiry falls within the same lines of harassment by officialdom. It is important to keep a sense of perspective here. The investigation is about a discrepancy in fuel allowances – the kind of discrepancy that would not warrant half the attention it is getting since, assuming that it is an allowance, what one assumes happens is that if you exceed the allowance then you are not refunded the difference. In any case the irony of the matter is that this is the fuel allowance used for an official car in its official capacity. Apparently too much money is being spent on fuel. One would hope that the inquiry concludes what everyone who has not been blinded by Joseph has been telling the government over the past year or so – that fuel prices are bloody expensive when compared to international market prices.

But back to Simon’s driver. Busuttil got to know that the investigation was going on and this strangely coincided with the document full of proposals on proper governance (that this blog is still to review). Muscat was quick to confuse matters by claiming that by Busuttil’s yardstick Busuttil should resign. It turns out that the Good Governance proposals have instilled the fear of God in Muscat – this is the first time that he would rather see the back of his opponent rather than continue with the playground jibes of “ma tifhmx fl-ekonomija, ma tafx taqra” &c &c.

Speaking of math and economics it is incredible that in this democracy we have importuned a magistrate to draft a pennies inquiry as to the fuel consumption of a car when our Prime Minister still to this day rents his own private car to his office at the rate of €7,000 a year. Incredible isn’t it? The apologistas of this world will tell you that this is perfectly legal – sure, but what they do not tell you is that this way Muscat gets to double his perk. The money the government is paying for what is supposed to be a bargain deal goes to Muscat’s pockets at a rate far above the net worth of his car. It’s as though a lawyer would charge his clients extra for having used his laptop and printer to draft his legal documents.

The whole farce of the magisterial inquiry only goes to show the urgency with which the PN proposals on Good Governance must be treated. We have long embarked on the slippery slope that ignored the important tenets that underly civic society in a liberal democracy and much time has been lost using the measure of partisan fairness instead of the rightful rule of law. Instances such as Farrugia’s comic foray into the land of inquiries are a clear indication of the tragic situation of our current political state. That so many voters are still prepared to swallow this bull if only to spite the imaginary nationalist monster that was designed in their head by Muscat’s propaganda machine is even more worrying for that means that many are still prepared to defend the indefensible.

Is-sewwa jirbah zgur they used to tell us. These are definitely tough times for the truth and for justice. Only time will tell.

Bugdavem on twitter

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