Destined for embarrassment

I sometimes get the impression that the people least sensitive to the spirit of the law (though they are undeniably the most conversant in its letter) are... lawyers.

Right: before I am torn to pieces by a flock of outraged legal eagles, allow me to add that I mean that in the nicest way possible. Being 'sensitive to the spirit of the law' doesn't necessarily get you very far in a courtroom these days. And for those of us unfortunate enough to have had entanglements with this particular institution, what is generally looked for in a lawyer is the ability to navigate the impossibly treacherous waters of the law itself: sometimes (as in the case of guilty parties hiring a defence attorney) with the undeclared aim of circumventing the same spirit that the law was first devised to uphold.

From that angle, acute moral dilemmas concerning the enactment of justice may even be considered a serious handicap among lawyers. And as I happen to firmly believe the ancient legal cliché that 'everybody has a right to a defence' - including those who are guilty as hell - I won't delve too far in the usual questions of whether it is 'ethical' or 'correct' for lawyers to use their expertise to find technicalities on which to turn the outcome of any case to their client's favour.

But when those lawyers also happen to be politicians - who, as we all know, aspire to higher ethical standards that mere mortals - It becomes much harder to ignore the inevitable deviations from the sense of justice that the law itself was always supposed to guarantee.

OK, the rest of this article will be about the passport scheme... so if you're bored stiff of it by now, I'd recommend a good Joe Pesci movie instead. Plenty to choose from (I recommend My Cousin Vinnie, you'll find it vaguely relevant).

Meanwhile, here is the latest twist in the saga. Simon Busuttil - who is both a lawyer and the leader of the Nationalist Party  - has declared that a future PN government will withdraw all citizenships granted under the IIP scheme, and refuse to refund any 'investments' made in the process of applying for it. And if government's predictions are correct, this would amount to a non-refundable financial pool of €1 billion.

He has said this sort of thing before, but this time backed it up with a judicial protest forcing Henley and Partners (who I always thought were the inventors of HP Sauce, but are actually the administrators of not just this, but several similar European investor programmes) to inform prospective clients of the potential risks.

HP saucily replied they were doing this anyway; and pointed out what I would have thought obvious even to a non-legal person such as myself. Stripping people of citizenship is illegal.

Busuttil's response was that - in his own party's view, please note - the IIP bill passed through parliament is itself in breach of international law, and therefore automatically null and void. Any contract entered into on the basis of this law will therefore be equally null and void, so his government would not be breaking any law by stripping citizenships of their newly acquired Maltese passport.

And that's roughly when I lost count of the legal absurdities and non-sequiturs.

Right. As I said, Busuttil is both a lawyer and a politician, and I find it hard to believe that he was wearing his lawyer's hat when he proposed violating the Universal Charter of Human Rights on at least two counts. For HP is perfectly right, and in fact we didn't even need them to remind us. The local Attorney General said exactly the same thing, and the Charter is unambiguous on this point. It's right there, Article 15.2: "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."

As a lawyer, Busuttil should also know that the law itself is subject to hierarchies: and the legal instrument he proposes violating is of somewhat high rank than a vague international commitment to 'loyalty' among EU states. The Human Rights Charter overrides national legislation and even the EU Treaties; and this is reflected in the fact that it is entrenched in the Constitution, so any law that violates it will automatically be unconstitutional (whether it ever gets removed is another question, but I don't have time for that now).

So if the Labour Party undeniably risks Commission infringement procedures for possibly violating the EU treaties, a future Nationalist Government will almost certainly incur multiple cases before the European Court of Human Rights... and that's before we even go into the issue of refunds.

Personally, I find it ironic that Busuttil would propose such an overtly Mintoffian tactic, so soon after the local constitutional court ruled that failure to pay just compensation to National Bank shareholders constituted a breach of their human rights. I won't go into the details of that case; but the basic principle is kind of hard not to spot really. 'Just compensation' for something taken away from you - even if legally taken away: for instance, "in the national interest" - is a basic human right, and denying refunds on legally acquired passports would therefore constitute the second such proposed human rights violation in a single sentence uttered by the Opposition leader.

And here is where the truly incongruous aspect to Busuttil's argument becomes visible. He contends that those passports would not have been obtained legally in the first place. And I imagine he must have been talking in his guise as politician, because the lawyer side to his split personality will surely know it is NOT the Nationalist Party that decides whether something is illegal or otherwise. That's a job that generally falls to the law courts; and seeing as we are here talking about an alleged violation of EU law, the venue would be the European Court of Justice (we should know this by now - we've been there often enough).

At this stage, it remains to be seen whether the Commission will even initiate infringement procedures, let alone whether the ensuing legal battle in the ECJ will be won or lost. Yet Busuttil calmly pronounces himself judge, juror and executioner, and simply decides the entire case before it has even begun.

What happens, however, if the Commission does not initiate proceedings at all? Or if Malta goes on to win its case in the European Court? What would become of Busuttil's commitment in either scenario?

The implications now look decidedly ugly, should this hypothetical future government actually go ahead with its intentions. Even if a case is fought and lost in the European Court, his proposal remains a violation of the Human Rights Convention, and human rights cases in the ECHR will certainly follow. And if no case is fought, or if the European Court rules that the scheme is illegal... Busuttil's own refusal to refund an estimated €1 billion will suddenly look uncomfortably like orchestrated theft.

Placed in the context of all the lofty arguments we heard in the European parliament last month, the audacity of it all becomes simply stunning. Most of those arguments concerned the fear of money laundering: i.e., dirty money seeping into the economy through legal means. And these fears were greatly magnified in news reports on PN-owned media, which portrayed all potential candidates for the IIP scheme as a bunch of brigands and crooks.

So let me see if I've got it right: Simon Busuttil would strip all these people of their nationality, because the money they paid might have been obtained through organised crime or otherwise illicit means. But his government will keep the dirty money anyway, without even trying to filter it out of the economy.

And I suppose he imagines that all those European MPs who voiced such tremulous concerns about money laundering will have nothing to say when presumed 'dirty money' comes flooding in, but the people who invested it are booted out of the European door. Perhaps he thinks the Commission will see nothing improper about an EU member state openly pocketing stolen goods... when the same Commission had earlier criticised the present government so harshly for allowing that money into Europe to begin with.

This, by the way, is the same Simon Busuttil who has howled so loudly and so long about how the IIP scheme has 'embarrassed' Malta and damaged our international reputation. Yet he sees nothing embarrassing about proposing a course of action that will have Malta hauled to court by its ears on multiple human rights violation charges... and ultimately held upside down and shaken till every last euro-centime of that stolen money falls out of its pockets and is refunded to its rightful owner.

My only conclusion is that perhaps we are destined to be embarrassed by our governments. Might be worth remembering next time you vote.