The erudite judge and the perky judge

Traditionally, Maltese are hesitant to speak out against the medical profession. They always imagine that someday they could find themselves under the surgeon’s knife and the last thing they really want is an irate surgeon with a vengeful streak. 

Joking apart, the other posse of professionals who seem to be considered sacred are the judiciary.  

There is nothing wrong in criticising the judiciary when and if need be. There are those who made it a pastime to denigrate the judiciary whenever the bench took a decision that did not quite tickle their fancy.    

We need not go far to recall how some magistrates and judges had their private lives exposed just because they took certain decisions. 

This very week, there were two interesting court sentences. One from Judge Francesco Depasquale and another from Judge Lawrence Mintoff. 

When faced with a decision on the opening of a spring hunting season, Depasquale departed from looking at the facts presented and expressed his views on why he thought hunting for turtle dove in spring was not a big thing in Malta. 

Depasquale argued as if he were an ornithologist representing the hunting lobby - there was no doubt that the turtle dove population was in decline but expressed scepticism at the claim that the principal cause for the loss of the species could be mainly attributed to “two weeks of hunting in April on the tiny island of Malta, which this court observes is nothing more than a rock in a big sea dividing Africa and Europe.”  

The judge also observed that this was the third time that BirdLife Malta had applied for a similar injunction on identical grounds. 

Depasquale dismissed the injunction aimed at preventing the opening of the spring hunting season this year. 

BirdLife Malta requested the injunction based on scientific studies which showed that turtle dove populations were falling on a regional level and not just locally, insisting that this was principally due to Malta permitting the hunting of the species in spring. 

Now, Depasquale has every right to express his personal opinion and to equate conservation criteria with the size of the country but international commitments do not work that way.  

For example, Malta’s commitment to reduce the carbon footprint is obviously irrelevant compared to what other country’s produce in terms of greenhouse gases. And yet as a sovereign nation we are obliged to implement targets and reach legal thresholds. 

When it comes to spring migration for wild birds, Malta’s geographical position offers a very important route for the declining species.   

So Depasquale’s puerile comment on Malta being a rock is rather irrelevant. Additionally, when he takes the government’s report on wild birds captured at face value, Depasquale is being naive and gullible. 

Who can believe the veracity of this report which is based on the imagination of hundreds of Maltese hunters who are expected to provide accurate details without verification of their bird killings. 

The other judge 

The other judge who left a mark this week was Mr Justice Wenzu Mintoff. 

Now, I to have to make a disclaimer here: I knew Mintoff rather well, perhaps too well.  No problems with that, I have no issues at all, even though he has sentenced me several times over when in fact he should have recused himself. Yet, I respect his decisions even though I disagree with their final outcome. 

Mintoff is a unique judge. He is erudite, well-read and driven by a strong sense of propriety. Integrity and justice are at the top of his agenda. 

His past life in politics is dominated by events that prove without any doubt that when push comes to shove he will take a decision that will favour the right thing from the wrong thing. 

But Mintoff who has all the makings for a chief justice and gives the impression that he would embrace such a post, was brilliant if not astounding with his 155-page judgment handed down in the constitutional case that Yorgen Fenech had filed against Superintendent Keith Arnaud, the Commissioner of Police, the Attorney General and the Home affairs Minister. 

In his judgment, Mintoff decimated line after line any suggestion that lead investigator Arnaud was unfit for purpose. 

But Mintoff went further. In his judgment he said it was inevitable that the appointment of a leading businessman in Malta as chief of staff at the Office of the Prime Minister, with all the entanglements and wide-ranging contacts with the business world, would bring with it many situations of conflicting interests. He added that this had created serious doubts about whether, in such a delicate situation, Schembri’s personal interests would take the upper hand and prevail over the public interest. 

This comment reminded me of what people like Mintoff secretively said in the Labour Party before 2014, just before he was appointed a judge. Then everyone meekly questioned this but never dared raise the matter. 

“Whatever shortcomings might have occurred during the investigation into the murder of Daphne Caruana Galizia… it is highly disgraceful that Inspector Keith Arnaud, because of other people’s conflicts of interest, was put in this pitiful position, where that which he was officially and confidentially reporting on during briefings at the OPM was revealed in the most villainous and disloyal manner, to the point where those arrested at the Marsa potato shed on December 4, 2017 had already been tipped off about their impending arrests. As a result, the lives of Inspector Arnaud and those colleagues of his in the police force and the army who participated in that raid, were placed in grave danger.” 

Mintoff observed that: “When meetings or briefings were called between the Prime Minister and his Chief of Staff, Keith Schembri, that is to say the Prime Minister’s factotum and alter ego, it is natural to presume that there was no hidden conflict of interest, like the ‘fraternal friendship’ between Yorgen Fenech and Keith Schembri.” 

That observation in itself is the question all of us asked after the events that dominated Malta in December 2019, after the arrest of Yorgen Fenech and the revelation of his close business links with Schembri. 

Mintoff went on to remark that the Office of the Prime Minister should not be involved in investigations into serious crimes, and that briefings about them and pardon requests should be limited to a technical level, at most.  

“The court reminds that this country has a history of presidential pardons with strong political connotations, which did not always have positive outcomes.” 

That comment was meant to refer to several cases and was motivated by Wenzu Mintoff’s political experience as a journalist in reporting and debating so many cases linked to presidential pardons. 

But it also revealed what he really thought about the way Joseph Muscat operated at Castille. 

Then what followed in the judgement was a typical Wenzu Mintoff vintage indepth analysis which sounded more political than jurisdictional in spirit. 

And he said: “The greatest institutional shortcoming in this homicide investigation were the continuous leaks of confidential and restricted information and the possible compromising of evidence as their consequence, which could have had a devastating effect on the public’s trust in the police and on its image and credibility.” 

The leaks which perforated the investigation were continuous and had reached back to its very start, said the court, pointing to the raid on the potato shed in Marsa in which the Degiorgio brothers and Vince Muscat were arrested. 

“The court is of the understanding that before those responsible for the aforementioned leaks are found and duly punished, it will be hard to restore the public’s trust in the integrity of the force.” 

Another institutional deficiency was the undeclared conflicts of interest brought to light during the course of the investigation, including personal friendships with suspects or persons of interest, made all the graver by the involvement of high ranking government officials like the OPM Chief of Staff and the Commissioner of Police.  

The judge recommended that the legislator “actively consider that conflicts of interest of this kind, especially at the institutional level, which could potentially interfere with police investigations and result in tampering with the collection of evidence should be classified as very serious crimes, to be punished harshly.” 

There appeared to be confusion about the investigations into the leaks, said the judge, also pointing out that to date, nobody had been charged in connection with them. 

“What is certain, however, is that the presence of Keith Schembri, a leading businessman and the Prime Minister’s alter ego, during briefings at Castille, had created a situation of serious and undeclared conflict of interest which had shocked investigators… Such thorny situations, where even the police found themselves in a quandary as to how to behave in front of a very powerful person like Schembri are an inevitability when a businessman is appointed as the Prime Minister’s Chief of Staff.” 

He then pointed out a basic observation that everyone with a modicum of intelligence and self-respect would have noted.   

When the police had searched Schembri’s Mellieha home, they had failed to also carry out a simultaneous search of his office at Castille and his other businesses, as they should have. 

The police had also failed to seal and put a guard outside Schembri’s office in Castille until it could be searched, leaving the keys to this office in the hands of the new OPM chief of staff who replaced Schembri. 

Mintoff also commented on the case of Schembri’s lost mobile phone. 

“And this in circumstances where upon his arrest, Schembri had told the police that he had lost his mobile phone, which the evidence shows that he had been using just a few hours before and had not reported its loss to the police.” 

Mintoff observed that there was no explanation as to what criteria the police had used to seize electronic devices and their cloud account login details. Astutely, he also noted that it was unclear as to whether such devices were taken from every suspect or person of interest or just a selection, “or even whether nothing was collected from some of them.” 

“When Keith Schembri was asked to provide the passwords for his cloud data to the police, it seems to have been enough for him to say that he would rather not because he had commercially sensitive information saved there, and the issue appears to have stopped there.” 

The two judgments and the two judges confirm, whether we like it or not, that the judiciary and the courts espouse more influence and power than the Opposition and the media put together.   

It is a power to be reckoned with and one that will not go away.