Malta’s justice system in the dock | Owen Bonnici

Dr Bonnici, your portfolio has been in the news a lot in recent months: last November, a European Parliament delegation left Malta with ‘more questions than answers’ regarding the state of our rule of law; and earlier this month, the EP issued a damning report highlighting a number of apparent shortcomings within our system. How do you react to the implications of this report?

I think that in Malta, the rule of law is functioning; it works, and it has actually improved with the many things we have done in the past five years. Of course, the report draws a different conclusion, and I have been critical of those conclusions, not because they suggested we improve this or that particular thing – I am always open to ideas to keep improving; the moment we say ‘there is nothing more to improve’, is the moment we should leave office. We need to keep improving things.  But that report reaches conclusions based on wrong facts, wrong assumptions... and they only spoke to one section of the people. That section, of course, has a right to its opinion – that’s a sine qua non - but there are also other views which hadn’t been heard before drawing the conclusions in that report...

But you yourself were one of the people the MEPs spoke to. So they heard at least your views...

Yes, but how can you discuss ‘free speech’ in Malta, for instance, without meeting the Institute of Maltese Journalists?  They talked about workers’ rights, and spoke only to UHM without speaking to other trade unions. I respect the opinion of everyone, but you have to hear both sides of the story...

OK, but even if we accept that the delegation should have interviewed more people... the concerns raised in that report are still valid. One of the conclusions is that there was never any investigation into the Panama Papers scandal... even though Malta’s money laundering laws make it clear that even the suspicion of money laundering should be investigated...

Let me tackle this bit by bit. The report draws a number of wrong conclusions, and was based on one-sided facts, as I said before. The government will officially reply to that report [Note: the reply was published after this interview], because I believe we cannot leave those wrong assertions going by as if nothing happened. We have, as a government, to officially provide our side of the story for anyone who wants to know the truth...

The argument is whether the rule of law has collapsed in Malta, or not. That’s the bottom line. The answer is no

Well, I’m asking for your side of the story now...

Yes, of course. Regarding the question of the investigation into Konrad Mizzi and Keith Schembri – I think that’s the most important issue at stake – let’s start one step at a time. The FIAU does its reports [...] and would then transmit its findings to the police. Those findings would contain information. Information is not evidence. Information is one thing, evidence is another...

Do you mean that the information provided in the FIAU reports did not amount to evidence of wrongdoing on Mizzi and Schembri’s part?

Just a second: in Malta, and in all democracies, we have this safeguard: we cannot try a person in court without hard evidence. Mere information is not enough. You need to transform that information into evidence: that’s why investigations take place...

But that’s the whole point; there wasn’t an investigation in this case. How can we can be expect to uncover evidence when there isn’t even an investigation?

Just a moment, so we can clear this matter up. The government is not privy to details of what the police do in individual investigations. But the police have issued statements to the press, saying that, from an investigation they undertook on the information they gathered, they did not see any reason to further the investigation against two people...

Couldn’t that be because the police were afraid or unwilling to investigate people in high office?  If the ‘two people’ were not Mizzi and Schembri, would the police have acted the same?

You are talking to a person who was arraigned in court over a traffic accident. So when the police find reason to arraign people in court, they arraign people in court... including the Justice Minister. I’ve passed through it myself...

With all due respect, investigating the Justice Minister over something as relatively minor as a traffic accident, is not the same as investigating the Energy Minister over corruption allegations that could bring down the entire government...

To me, it was not such a minor issue. Trust me. I mention this episode – it’s not a comfortable one for me to mention, but I mention it because I am living proof that the police do investigate when they need to investigate, and they do arraign when they need to arraign. Coming back to Mizzi and Schembri: you know that, in our system, we have a possibility – or a tool, if you prefer – where any person can go straight to a magistrate, and ask for a investigation to be undertaken, as long as certain conditions are met: basically, the gravity of the alleged crime, and other issues. In the case of Mizzi and Schembri, the allegations are being investigated by the inquiring magistrate. So the bottom line is, even though you might agree or disagree with anything that the police might have done, the system – because this is about the rule of law, right? – provides for guarantees that, if a person wants to go straight to the inquiring magistrate, he can do that. And that is what Dr Simon Busuttil did.

But didn’t he do that precisely because there was no police investigation to begin with?

[....] Why are so you saying that there was no investigation? As I said before, the police said that, from their analysis of the reports, and they found that they did not merit other investigation, on the basis of the information they contained...

They might have said that precisely because it was convenient for them not to investigate this particular case... because of who was involved...

That’s an allegation you are making. I have trust in the police. The majority of the Maltese also trust the police. Now: the police take decisions. You can agree or disagree with those decisions. In our system, if you disagree, you have remedies at your disposal. That is what I am arguing [...] The argument is whether the rule of law has collapsed in Malta, or not. That’s the bottom line. The answer is no. [...] Our system is such that, even if you disagree with a police decision, you can go to an inquiring magistrate and ask for an investigation. How many other countries have this system? Isn’t it a strong point for our rule of law? So how can you say that our justice system is failing, when we have all those guarantees?

All the same, those guarantees have not translated into any investigation into the Panama Papers. Let’s face it: in Iceland, the prime minister resigned over a far less direct connection to the same scandal. In Malta, nothing happened. Mizzi and Schembri are still there, it’s still business as usual. So these ‘guarantees’ you mention may look good on paper ... but in practice, they seem very easy to by-pass or short-circuit.

No, no. Let me put the record straight. It is not true that Konrad Mizzi didn’t suffer any consequences. Konrad Mizzi was the deputy leader of the party, and he resigned from the deputy leadership...

But that’s an internal party decision.  It has no bearing on his public office. He was a Cabinet minister, and still is a Cabinet minister...

Are you telling me that there is no consequence, when someone was deputy leader of the party, and had to resign? As far as I can see, that is a consequence. To me, that is a political price that Konrad Mizzi paid [...] and secondly, Mizzi went in front of the electorate; and the electorate voted him in again. You cannot ignore that fact...

So the court of public opinion exonerated him, therefore there is no need for any further investigation?

No: you said that Mizzi lost his ministry, then was given another one. But in the meantime, he faced the electorate. And the electorate voted him back in with huge support. So if you’re going to ask me a question about Mizzi’s career: the portfolios he had before, and what he has today... you have to also mention that there was a general election in between. You have to mention that...

I fail to see the relevance. So what if he was re-elected? It might just mean that he has a very good PR machine. And people vote for all sorts of reasons in a general election. Re-election doesn’t mean that all your past alleged misdemeanours are wiped out...

I didn’t say that...

But let’s talk about the allegations themselves. Why do think Mizzi opened a secret trust in Panama in the first place?

I think he made a very bad decision, and he ended up apologising for it in Parliament...

That’s not what I asked. Why did he do it? Why does anyone open secret offshore companies, if not to hide money?

I didn’t open any secret companies anywhere...

You yourself did not, but here you are defending a Cabinet colleague who did... and so is your whole government. Look how much of your own time and energy is now devoted to defending this one minister. Look at all the flak your government (and Malta) is taking, just on this one issue. Aren’t people justified in asking why we have to put up with all this, just to defend one minister who – by your own admission – ‘made a very bad decision’?

I am not defending Konrad Mizzi: I am defending the rule of law, the justice system and Malta in general. Because what has been told in that report is incorrect. It’s not true. The claim is that our system is not working, when our system works. [...] It offers so many remedies that I cannot accept anyone who says our justice system is failing. At one point, for instance, there was this no-holds barred criticism of the Attorney general – an unprecedented attack  – and you end up reading in newspapers and reports, that the AG can be appointed by the prime minister, and dismissed by the prime minister. It’s not true. The office of the AG has two-thirds majority backing, which gives him security of tenure; and he can only be dismissed upon proven misbehaviour, or inability to perform his functions. So I cannot accept it when people say the ‘AG is a puppet of the government’, when in other European countries, the security of tenure afforded to Attorney General is much weaker. [...] That is why I defend our country’s justice system. That is why I am proud of it.

Moving onto another issue, also highlighted in the report. Press freedoms. Recently we have seen a number of attempts to gag the media in Malta: including by ‘SLAPP’ lawsuits in overseas jurisdictions, which are designed to discourage the press by maximising expenses. The Opposition has tabled a draft law to address this issue; your government has yet to take up a position on it. What is your own position?

Let me say two things: in the amendments we recently enacted to the Press Law – we are rewriting the Press Law all over again – we have actually made it impossible for people here in Malta to make SLAPP lawsuits against journalists. With the new press law, we have limited that possibility very much... we had instances where private citizens filed, for example, 15 libel cases against a journalist over the same article. So I want to make it clear that this government has drawn up a new piece of legislation that will effectively make it impossible for anyone to make a garnishee order against a journalist – or any corresponding order, on property, etc. – and also to file multiple lawsuits on the same subject. These are all anti-SLAPP measures, in the local context...

I am not defending Konrad Mizzi: I am defending the rule of law, the justice system and Malta in general. Because what has been told in that report is incorrect. It’s not true. The claim is that our system is not working, when our system works

Yes, but the Opposition motion is about whether court rulings in foreign jurisdictions should apply in Malta... not rulings by the Maltese court...

That’s my second point. The Opposition has tabled that proposal, and I am taking legal advice about whether Malta can actually do [what the Opposition proposes], in the light of private international law, and European legal obligations. As EU members, for instance, we have a duty to implement judgments coming from other member states. So before discussing the matter, I want to know whether Malta can actually do that. I am obtaining legal advice, from top professionals in the field; and once I obtain that advice, I will be in a position to answer your question better.

Fair enough, but what I wanted to know was whether you agree or disagree with the idea in principle (i.e., that Maltese law should protect journalists from prohibitive foreign lawsuits).

If I didn’t agree with the idea in principle, I wouldn’t have made all those amendments to the local Press Law. But I don’t want to say anything that... I am not an Opposition MP: I am the Justice Minister. I cannot say anything that we might eventually find out that we cannot do. I want to make sure, before discussing the proposal, what is the room for manoeuvre for a country that is a member state in the European Union, in the context of enforcement of foreign judgements. I can’t answer that question now. I need advice. And I would be very grateful if the Opposition tables any legal advice it may have on the matter.