A criminal complaint too far

The criminal complaint filed by the Prime Minister’s chief of staff against Opposition leader Simon Busuttil is, to say the least, one of the most impolitic moves this government has so far done.

On Thursday, Keith Schembri filed a police complaint (kwerela) accusing Busuttil of resorting to ‘fabrications and calumny’, as well as lying under oath, and asking the Police to ascertain whether it can investigate Busuttil on those grounds.

Legally, Schembri may well be within his rights to do all those things. But given the public office he holds – his closeness to the Prime Minister, and above all the disproportionate influence of the government over the Police Force – the action can only smack of abuse of power.

Busuttil responded by describing Schembri’s tactics as ‘fascist’. The word may be an exaggeration... but it is certainly true that the apparatus of the State is being used to silence a critic, albeit through legal means. The Prime Minister ought to be mindful of the political ramifications of extreme decisions such as these.

Having said this, Schembri’s complaint is problematic for other reasons. While he was politically (at best) unwise to resort to such action in the first place... it remains a fact that Simon Busuttil’s latest request for a magisterial inquiry into the Panama Papers scandal comes a year too late.

Back in April 2016, Busuttil had called for an investigation into Panama which the police appear to have never instigated. Busuttil himself never physically lodged a complaint with the police to kick-start the investigation, something that could have lent clarity even to his own political campaign at the time.

Even if the police would have refused to investigate it, Busuttil could have had recourse to the impartiality of the Maltese courts and filed a police challenge that would have, most certainly, seen the Court issue an order to the Commissioner of Police to investigate Panama.

This did not happen in 2016. Perhaps it suited the Nationalist Party at the time that any inaction by the police be allowed to fester for as long as possible, in order to feed the PN’s narrative of a police force in collusion with the government.

Elsewhere in Europe and other countries, police forces were carrying out their own investigations, some in full transparency. In Malta, the Commissioner of Police claimed that the police could not act without a formal report. And nobody filed a report. It sounds almost comical today.

Nor does it help that Simon Busuttil’s last hurrah as Opposition leader seems to have come on the day that he was questioned by another magistrate, this time working on a complaint by the FIAU against the unlawful leak of compliance reports and unfinalised investigative reports, who asked Busuttil for information on the leaks.

Rightly, Busuttil stood by his pledge to defend those who reveal any form of corruption. It would seem however, that in the time-tested tradition of politics, a counter-move manifested itself by way of the new complaint on the Panama Papers.

It was in response to this latter complaint, that Keith Schembri filed his own criminal report against Busuttil.

A further problem concerns the nature of Schembri’s request: to ascertain if Busuttil had ‘filed a false report’. It is without question that Busuttil’s five-page complaint to the magistrate supposes a certain amount of conjecture. But the facts underpinning this complaint are in the main part verifiable, as they are the events revealed by the Panama Papers.

It would suffice to have said that the magistrate should investigate the sheer suspicion of anything from tax evasion to money laundering or bribery, through the predicate offence of having created a secret offshore structure.

The question is not therefore, whether Busuttil’s report was correct in every detail (conjecture is never a reliable way of putting one’s case forward); it is whether the known facts, as exposed by the Panama Papers, are enough to initiate criminal investigations against Keith Schembri and others.

Schembri is free to disagree, but he cannot stop the question from being asked. And this is where his criminal complaint becomes unacceptable.

Governments who want to silence their critics do wrong when they attempt to use the same structures that are there to investigate allegations of wrongdoing, to investigate those accusing them.

In this case, the government went beyond a mere reply to the accusations – or even allowing the institutions to carry out their work as required – by instead attempting to cow their critics with the prospect of a criminal investigation.

As the person caught red-handed opening a secret company, it should be Schembri to prove Busuttil’s allegations wrong – not because everything Busuttil said is correct, but because the mere facts of the Panama Papers demand a proper criminal investigation.

The Prime Minister himself has already given notice that, should the ‘Egrant’ inquiry absolve his family, he would be pursuing those who spread the alleged calumny in the first place. Clearly, this course of action will only take place if the inquiry clears Muscat in the first place.

His right-hand man should employ the same logic in treating the accusations that rightly stem from the Panama Papers scandal.