Rule of law or musical chairs?

The rule of law is fundamental to protecting people’s rights and freedoms, and is foundational to curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state.

Contrary to popular belief, the goal of the rule of law is to control the abuse of power, not to ensure citizens submit to formal legal processes; the latter happens even in dictatorships.

The World Justice Project developed a working definition of rule of law based on four universal principles, the first of which is that government officials must be accountable under the law.

This means that government officials get sanctioned for misconduct such as using public office for private gain.

So it’s not enough that government officials that were close to Keith Schembri such as Neville Gafa resign or get transferred from OPM to some ministry.

The work they did needs to be scrutinised for bribery, improper influence by public or private interests, and misappropriation of public funds or other resources.

Bear in mind that these are the minions of a man under investigation for murder and a litany of other offences which include corruption, leaking extensive information about the investigation into Daphne Caruana Galizia’s assassination, obstructing justice, and acquiring a phantom job for middleman Melvin Theuma.

If this does not happen then what we are seeing is merely a charade, a travesty of rule of law, of justice, a game of musical chairs with a few expendables as collateral damage.

It’s time you showed up

We are currently witnessing one of the most tempestuous and turbulent periods in Malta’s recent history, and the manner in which we are responding to it (or not responding to it) is defining our political and economic future for many years to come.

The country is in the throes of a constitutional crisis and administered by a government which is the epitome and personification of blatant, shameless corruption.

Parliament and the institutions are rubber stamps for the whims of a corrupt Prime Minister and his corrupt collaborators.

The police are led by a commissioner who refuses to do his job and to allow his reports to do theirs. Thanks to his failure to fulfill his oath of office, lawlessness and impunity have become the norm.

The attorney general unashamedly goes out of his way to hinder the course of justice.

Magistrates and judges are appointed on the basis of political allegiance and connections. It is impossible for justice to be done and to be seen to be done.

Patronage, clientelism, nepotism and cronyism have become the order of the day.

Freedom of speech and expression are in free fall.

There’s never been a time before when it was so urgent for people to stop believing lies manufactured by politicians rather than indisputable facts.

There’s never been a time before when it was so urgent that people who have the values of justice and integrity at heart stand up to be counted and make their voice heard.

There’s never been a time before when it was so urgent to stop justifying all that is wrong with feeble excuses.

There’s never been a time before when it was so urgent that people stop taking decisions and acting on the basis of tribal politics, personal interests, fear or indifference.

We are fast approaching a time where the only semblance of democracy is an election every five years.

The decimation of democracy, rule of law, and human rights, does not happen in an apocalyptic fashion. It happens unnoticed, while people go about their daily business, oblivious or indifferent to what is going on around them.

Until it’s too late.

It’s time to show up and to make your voice heard.

Idiots

After yesterday’s scathing indictment against Joseph Muscat by the European Parliament (EP) where everyone including his own political family voted resoundingly against him, many idiots on Facebook are advocating a Maltaexit/Mexit because in their view the EU is lording it over tiny Malta and discriminating against it.

You have to be an idiot to want to crash out of one of the world’s largest markets and global political forces.

You have to be an idiot to think that Malta is being discriminated against by the EU when procedures for Rule of Law are also being taken against other countries.

You have to be an idiot to think that Rule of Law is exclusively a sovereign matter and that the EU has no say on the Rule of Law in Malta. We are citizens of the EU (not just members of a club) and when we opted to be citizens one of the requisites was and is Rule of Law.

The rule of law is one of the fundamental values of the Union, enshrined in Article 2 of the Treaty on European Union. It is also a prerequisite for the protection of all the other fundamental values of the Union, including for fundamental rights and democracy. Respect for the rule of law is essential for the very functioning of the EU: for the effective application of EU law, for the proper functioning of the internal market, for maintaining an investment-friendly environment and for mutual trust. The core of the rule of law is effective judicial protection, which requires the independence, quality and efficiency of national justice systems.

Idiots.

Drain the swamp!

This evening disgraced Prime Minister Joseph Muscat announced his resignation (or more accurately his dismissal) in six weeks’ time on national TV.

He then proceeded to give a State of the Union address brimming with triumphalism.

Nothing of what he said had any bearing on the issue which is tearing Malta apart, the mother of all corruption scandals in Malta, which culminated in the barbaric assassination of a journalist, Daphne Caruana Galizia. And in which Keith Schembri, his best friend and chief of staff – till a few days ago – is being implicated by one of the alleged masterminds behind the assassination, as well as by a doctor who acted as a carrier pigeon between Schembri and the alleged mastermind.

That’s what needs to be done, Muscat said, referring to his resignation. But that’s not what needs to be done. What needs to be done is that he tenders his resignation effective tomorrow morning. Not in six weeks’ time.

He cannot remain in office, continuing to meddle in the investigation into the assassination of Daphne Caruana Galizia in which Schembri may be involved, potentially obstructing justice to protect his friend.

Muscat has overseen Malta’s transformation into a haven and a heaven for criminals and money launderers. His tenure has been characterised by an unprecedented, incessant stream of corruption scandals.

He has allowed corruption to infiltrate and permeate his office and indeed the whole country. Under his watch, corruption has become the order of the day, and impunity has been normalised.

And Muscat has blood on his hands, because had he acted to stem and address the corruption going on in his office, the murder of Daphne Caruana Galizia would not have occurred.

Joseph Muscat needs to go now.

Not in six weeks time.

Free Barabbas

“But the chief priests and the elders persuaded the crowd to ask for Barabbas and to have Jesus executed.”

Matt 27:20

History repeats itself, because human nature does not change much. People have chosen Barabbas countless times throughout the centuries.

Konrad Mizzi set up a secret company shortly after his party, the Labour party (PL), was elected in 2013.

When he set up the company, he was the Minister responsible for Energy.

His company was to receive some 5,000 euros DAILY from another secret company called 17 Black.

This is all supported by official documents.

The police commissioner thought that this did not call for an investigation, although the Financial Analysis Intelligence Unit (FIAU) felt strongly otherwise.

The Prime Minister did not believe he should remove Mizzi from office and did not. He chose to protect his friend over integrity.

In 2017 general election was held, and the party to which Konrad Mizzi belongs (PL) won the general election by a landslide victory.

The electorate chose Barabbas. Mizzi, who contested the election, garnered an exceptionally high amount of votes.

This fact that the Labour Party (PL) won by a landslide victory and that Mizzi garned an extremely large number of votes was spun by PL as proof that Konrad Mizzi was innocent of any wrong-doing.

Of course this is pure disinformation.

The rule of law dictates that innocence or guilt are not determined by the number of votes the person amasses in a general election, but by the courts of law.

Those people who believe that Konrad Mizzi’s innocence was proven by the faith the electorate placed in him or in the Labour party are misguided.

Such a belief is belief in “mob rule” rather than in the rule of law.

But the courts of law cannot decide whether a person is innocent or guilty if a person is not prosecuted. And he cannot be prosecuted if he is not investigated.

Consider what Chief Justice Silvio Camilleri (now emeritus) said:

“According to article 346(1) of the Criminal Code it is the duty of the Police to preserve public order and peace, to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders, whether principals or accomplices, before the judicial authorities. If this does not take place justice cannot take its course.”

Last year, Reuters revealed shown that the 5,000 euros daily to be paid to Konrad Mizzi would be coming from Yorgen Fenech, one of the principal investors in the power station built after the 2013 election.

The police commissioner still believed that this did not warrant an investigation into Mizzi’s affairs.

The Prime Minister still did not believe he should remove Mizzi from office and did not. He chose to protect his friend over integrity once again.

The National Audit Office (NAO) found several irregularities in the tendering process.

The tender was awarded to a consortium. Yorgen Fenech’s company accounted for around a third of the consortium.

Last week, Fenech was implicated in the assassination of Daphne Caruana Galizia.

Mizzi was reported as saying he “stands tall” saying he was “offended” by the suggestion that his name would be among those businessman Yorgen Fenech was seeking a pardon to identify according to a report by The Times of Malta.

Mizzi has no reason to stand tall. He has every reason to hang his head in shame.

Mizzi should be thoroughly investigated by the police without fear or favour, and bought to justice.

The police commissioner needs to do his job for a change. If he needs help in understanding what his job is, he needs to read the Police Act.

By not investigating him four years ago, the police commissioner failed to do his duty.

The Prime Minister should stop shielding Mizzi and remove him from office. The fact that he did not makes him an accomplice to Mizzi and an accomplice in Daphne Caruana Galizia’s assassination.

The time when Barabbas will receive his just deserts is close. Nothing can prevent it from happening.

Resign, you have blood on your hands

There’s something very wrong with people who celebrate the assassination of a person in secret Facebook groups as well as openly, and when people try to rationalise and justify the assassination.

It’s even more heinous when these despicable acts are orchestrated and fuelled by people in the higher echelons of the governing political party of the country.

The snuffing out of an innocent human life can never be endorsed or justified for any reason. There are no ifs, ands or buts to this.

All lives have the same value. And all murders are equally villainous and abominable. But when a person is slain in his or her line of duty such as a police investigator, a whistle-blower or a journalist, there are ulterior implications and ramifications.

Journalists are often the canaries in the coal-mines of democracy, rule of law and law and order. They are more likely to be murdered wherever impunity has overtaken the rule of law. Impunity subsists wherever corruption thrives.

Daphne was executed to ensure that a truth on corruption and crime she was going to expose would never see the light of day. But Joseph Muscat bears a great responsibility for her death, one that he will have to live with for the rest of his life.

He has blood on his hands because he enabled her assasination.

Joseph Muscat enabled Daphne’s assassination by dehumanising her and making her a target.

Joseph Muscat enabled Daphne’s assassination by his government’s failure to uphold its legal obligation to protect her.

Joseph Muscat enabled Daphne’s assassination by not putting an immediate stop to the corruption and crime happening right under his nose.

Joseph Muscat enabled Daphne’s assassination by overseeing the capture of Malta’s institutions and creating a constitutional crisis, which means that the institutions did not and cannot function to ensure the rule of law and law and order in Malta.

He needs to do what he should have done the very same day that the Panama papers came out. Evict Konrad Mizzi and Keith Schembri from office and indeed from the party, and ask the police commissioner to investigate them without fear or favour. Then resign himself.

No, it’s not ok for MPs to hold posts in the executive

The legislative makes the laws; the executive implements them; and the judiciary oversees them. As with all other democracies, in Malta there are checks and balances between these three pillars. This separation of powers is in effect so that no part of government becomes limitless and totalitarian in such a way as to harm democracy. This separation of powers, along with a system of checks and balances and the rule of law, ensures that, before the law, everyone is treated equally. It also ensures that everyone is bestowed the protection ordained by law.

This is what is on a Malta government website that gives a synopsis of how the Maltese state functions.

So why the principal secretary Mario Cutajar felt it necessary and incumbent on himself to ask Prof Ian Refalo for a legal opinion as to whether it’s ok for government backbenchers to hold jobs in the executive when this constitutes a clear breach of the doctrine of separation of powers is perplexing.

Prof Ian Refalo concluded that there is no problem with government backbenchers holding executive positions since such appointments did not break any laws.

Prof Ian Refalo’s arguments were efficiently and effectively put paid to by Prof Kevin Aquilina, who pointed out that even if something is legal, it does not mean that it conforms to the spirit and intent of the constitution.

“Laws which do not respect good government are in themselves unconstitutional.”

Consequently, he [Prof Aquilina] insisted that the appointment of MPs to carry out executive functions such as chairing corporate bodies or acting as government advisors through administrative practice was “inconsistent” with the Constitution.

Also, these appointments are in effect ‘positions of trust”, notwithstanding the Public Service Commission’s and the Ombudsman’s criticism of this unconstitutional practice as well as that of several top legal experts as well as the Venice Commission.

Since the practice of such appointments goes against the principles of good governance and the spirit and intent of the constitution, they corrupt the Rule of Law.

And Rule of Law is a fundamental requisite for any country that values liberal democracy and a mandatory requisite for membership in the EU.

Have our institutions been hijacked?

The Times reported that the Prime Minister Joseph Muscat commented that while on the one hand the Opposition argues that the island’s institutions have been “hijacked by the government”, its representatives were now quitting these same entities.

Institutions such as the Planning Authority, Lands Authority etc are not prevented from being hijacked by the government by having an equal amount of members of parliament (MPs) from both the government and the opposition sides on their boards, but by being absolutely devoid of people from the political class or people who are proxies or emissaries of the political class.

This is called separation of powers, a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches. The intent of separation of powers is to prevent the concentration of unchecked power by providing for “checks” and “balances” to avoid autocracy, and the over-reaching by one branch over another, because as Lord Acton put it, “Power tends to corrupt, and absolute power corrupts absolutely. “

Having MPs, political appointees, persons of trust, party apparatchiks, party officials and party activists appointed as CEOs or chairpersons of boards of government institutions and agencies flies in the face of the doctrine of separation of powers. It makes a mockery of the doctrine of separation of powers, and hence of the rule of law and of democracy, and is symptomatic of authoritarian, populist heads of states and governments who aspire to absolute control by doing away with checks and balances.

Yet there is not a single institution in Malta that is not headed by a PL apparatchik. The Malta Financial Services Authority (MFSA), Planning Authority (PA), Lands Department, Malta Tourism Authority (MTA), and the Malta Police Force are just examples. Which country can boast of having a Police Commissioner who publicly declared on social media that he admires the Prime Minister’s testicles?

There is not a single government MP (the legislative arm) who does not occupy a senior position within the executive arm. Not one. The Commissioner for Standards in Public Life is pushing to put a stop to having MPs on the government payroll, and rightly so. MPs should not occupy positions within the executive, and this includes Opposition MPs.

There have never been as many persons of trust on the government payroll as there are currently. Appointing persons of trust runs against the constitution. The praxis of appointing persons of trust has been highly criticitised by constitutional experts, the Ombudsman and the Venice Commission and cannot be allowed to continue brazenly and unfettered.

The judiciary has not been spared from the systemic and systematic hijack. “60% of all judges and magistrates sitting in judgement of us have a personal history that is intimately, actively and explicitly intertwined with the Labour Party” Vicki Ann Cremona wrote in an article on The Times.

She correctly points out that this does not mean that the judgements of these magistrates and judges are necessarily influenced by political considerations, but it does not give a person the comfort that they are not, and it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. In order for justice to truly be justice, a trial needs not only to be fair, just and unbiased, but it is of the essence that it is also seen to be fair, just and unbiased. Without transparency and trust in the courts, there is no justice.

State capture, the hijacking of the government and government institutions, serves the purposes and interest of a very small handful of individuals. In the short term, many may benefit from the crumbs that fall from the table, but the price comes heavy, and the sooner the public puts its foot down to this folly the sooner we can start working our way back to rule of law and liberal democracy.