When 11 persons appear in court in Valletta, Malta, in the coming weeks, the Mediterranean island’s system of law will be put to the test. Keith Schembri, the former chief of staff to ex-prime minister Joseph Muscat, is among the defendants facing charges related to allegations of corrupt activities. According to press sources, Schembri was arrested and imprisoned on March 20 on suspicions of corruption, money laundering, and “engaging in lucrative underhanded business dealings.” Among his co-defendants are a number of notable business people.
The prosecutions arise from investigations into widespread corruption and money laundering in Malta, which were spurred by the publication of the Panama Papers in 2016. The investigations were important to the work of murdered Maltese journalist Daphne Caruana Galizia, who was investigating possible links between government figures and offshore shell businesses when she was murdered in October 2017.
Bail has already been granted to all 11 accused. Police had previously questioned Schembri in connection with the assassination, while others, including former Prime Minister Joseph Muscat and cabinet minister Konrad Mizzi, have resigned. The three were not charged.
Three men are on trial for the murder, albeit one of them, hitman Vincent Muscat, made a guilty plea and was sentenced to 15 years in jail in February 2021. A fourth individual, businessman Yorgen Fenech, has been charged with “complicity to murder,” and his alleged connections to government people have been the subject of police inquiries in both the corruption and murder investigations. According to evidence submitted in court and reported by the Times of Malta, Fenech told police that Keith Schembri was involved in the attack, albeit no proof has been produced in court to corroborate this assertion.
The multiple scandals that have engulfed Malta’s eight-year Labour government caused Tonio Borg, a former European commissioner, and conservative Maltese politician, to publish an essay in The Times of Malta asking, “What is happening to this country and its governing bodies?”
The ultimate litmus test for a functional state is the rule of law. The notion of having one rule for both powerful and powerless people is critical to this. That is why Schembri’s charges are so serious. On its website, the Daphne Caruana Galizia Foundation stated, “Prosecuting Schembri today brings us one step closer to a Malta where no one is above the law.” It is the country for which Daphne fought and which we all deserve”.
The rule of law
Freedom of the press is also essential to a functioning democracy, which was gravely harmed when Caruana Galizia was murdered. However, worry for the rule of law in Malta extends beyond charges of serious crime and the death of a journalist. It cuts to the heart of the constitutional system, where power is concentrated in the hands of the government. The administration is under fire right now for its proposed Bill 198, which critics call a “dangerous, abusive bill that risks undermining the constitution.”
Criminal procedures can currently only be held in a court of law under the Maltese constitution, with any criminal punishments being at the sole discretion of a judge. In 2016, the constitutional court declared that hefty administrative punishments should be considered criminal in nature and should be left only to the courts. The explanation is straightforward: “Anyone facing severe fines and measures, whether criminal or administrative in nature, requires the full protection of the courts.”
Malta’s justice minister, Edward Zammit Lewis, proposed amending the constitution in October 2020 to allow the government to establish public authorities with the right to impose financial penalties, potentially usurping the jurisdiction of the courts. His amendment failed to garner the required two-thirds majority. Instead, the government has introduced Bill 198, which seeks to change the Interpretation Act, which governs the language in which laws are interpreted in Malta.
The proposal would effectively change the definition of a criminal sanction, allowing penalties to be imposed by bodies other than courts.
The plan, which may pass with a simple majority of one vote, states that “administrative penalties, some of which can amount to hundreds of thousands of euros, will no longer need to be imposed by a court of law.”
However, access to legal protection is at the heart of the rule of law. Allowing public authorities to apply criminal sanctions circumvents the courts and empowers “government-appointed officers” to impose fines.
This would be terrible enough on its own, but the government’s approach to reform exacerbates the situation. After failing to secure the votes needed for a formal constitutional amendment, the administration is now attempting to modify the meaning of the language in the constitution by exploiting a constitutional gap.
This could create an unpleasant precedent in which the government amends the constitution with technical changes. According to top constitutional lawyers, the Labour administration is “using its… parliamentary majority to cripple… the supreme law of the land.” The supremacy of the constitution would translate into the whims and fancies of passing politicians.”
For some time, there has been substantial worry that members of the political and corporate elite have regarded themselves beyond the law, as seen by the murder of Caruana Galizia, corruption charges, and the Malta government’s apparent contempt for the constitution. In his furious argument in The Times of Malta, Tonio Borg asked:
“Are these incidents the result of the powers that be’s arrogance or folly?” Is it possible that these harsh, irrational, and disproportionate measures are the result of arrogance after eight years in power, or that they are the idiocy of politicians who have lost their minds? They are most likely both.
