The democratic safeguards which are meant to ensure the integrity, independence, and impartiality of a court of law are not frivolous decorations. They are the bedrock of the rules of civilisation.
A country whose judiciary body can function without fear or favour, can dispense justice in a timely, proportionate manner, and generally commands the respect of the rest of society can be described as one in which the average citizen has a fair shot at life. A solid judicial system that deters and punishes wrongdoing and awards reparations to the wronged means you are generally protected – or at least, legally covered – from most forms of harm recognised as such at law.
Conversely, a country whose courts allow well-connected individuals to avoid the law, fail to dispense justice due to wider shortcomings which the state is responsible for, and are considered poorly in the eyes of society at large can be described as a haven for the corrupt and a nightmare for the average citizen. Unable to address wrongdoing or at least mitigate it, the system offers you no protection, irrespective of whether you are covered by law or not.
In other words, our system cannot survive without a functional court. In this, the government’s great conundrum reveals itself. How does a government survive its own attack on a pillar that upholds the foundation of a critical system it must depend on to exist?
The hospitals concession remains an albatross around the ruling party’s neck for the simple reason that there are reams of evidence – backed up by two unequivocal court judgements – which attest to the fraudulent and vitiated nature of the concession. In this, there can be no doubt of the political guilt which the Labour government must bear with shame: the paws of their highest-ranking politicians and civil servants are all over the deal.
Look no further than the trouble they are going through to discredit every attempt to hold them accountable for it to confirm just how damning the verdict of the courts has been in the first judgements we’ve seen so far. Unable to justify its actions, the Labour government went on the offensive, claiming foul play and masking its iniquity with conjured up fantasies of an establishment that is out to get them.
The strained denials they issued to last Sunday’s Times of Malta investigation, which was the first story to ever directly link Steward Healthcare to a €1 million slush fund suspected to be set up to pass on bribes to disgraced former prime minister Joseph Muscat, his former chief of staff Keith Schembri, and former health minister Konrad Mizzi, are a crucial example.
Enter their last-ditch line of defence: ‘all of the people named in the Vitals inquiry are presumed innocent until proven guilty by a court of law.’
Article 6.2 of the European Convention of Human Rights does, in fact, outline this fundamental human right. But, it is not as simple as the government would like you to think it is. It is certainly not a bulletproof defence that automatically exculpates anyone who hasn’t yet been found guilty of a crime by a court, and it certainly cannot be used to distract from the mountain of evidence which brought us here.
The relevant excerpt from the guide to understanding the European Convention of Human Rights.
Ironically, it is the government itself which may be prejudicing the right of its own former and current representatives to be presumed innocent by launching a full-scale attack on the judiciary.
The right to be presumed innocent by the court until enough evidence is presented in front of it to prove otherwise hinges on that court’s ability to function adequately. If, for whatever reason, a court is perceived to be unduly influenced by someone or something when deciding the fate of an individual accused of committing a crime, then a breach of the right to be presumed innocent may occur.
It has now been clearly established that prime minister Robert Abela, disgraced former prime minister Joseph Muscat, Valletta Cultural Agency chairman and Labour Party loyalist Jason Micallef, and several other leading figures in the Labour Party have used every avenue at their disposal to influence the court’s judgement in every case related to the hospitals concession.
The concerted attack on magistrate Gabriella Vella has been nothing short of horrifying. The inquiring magistrate completed her task while being burdened with enormous pressure from both the individuals who were being investigated and the government at large.
The same figures are already turning their guns on the criminal prosecution of Muscat and all the other players involved in the concession, effectively transferring the flaws they are attributing to the inquiry’s report to the prosecution of their own criminal cases by arguing that the whole investigation and subsequent criminal charges were issued because of a bias against representatives of their party.
So, our prime minister argues that the establishment – a mythical assorted bag of goods that includes representatives from the Nationalist Party, civil society, journalists, experts, observers, and anyone else who the government doesn’t like – is prejudicing the accused’s right to be presumed innocent until proven guilty by pointing towards the evidence which sustains the attribution of political wrongdoing. In spite of this, he says he will only decide what to make of the situation if and when they are indeed proven criminally guilty by the court.
In the same, breathless argument, he prejudices their innocence by pressuring the same court into absolving Labour Party grandees of their crimes, overtly implying they are innocent because the case against them is politically motivated and therefore, invalid. If the prosecution of the case and the judiciary are both compromised as Abela claims they are, then the court cannot judge the case effectively, which means the presumption of innocence is once again in jeopardy.
What the government really wants to do is violate is your right to a judicial system which cannot be coerced into taking decisions which are favourable to the government. What is really being violated is your right to be safeguarded from the greedy and the corrupt through the adequate dispensation of justice, because the prime minister is undermining the court’s ability to independently make a decision that befits the law.
What the government fails to understand is that you can’t have your cake and eat it. You cannot thump on your chest and pretend you care about the right of the accused to be presumed innocent by the court while simultaneously undermining the judiciary and therefore, its ability to make the right call. You cannot mutilate the evidence gathering process, hinder every investigative avenue by refusing to cooperate or otherwise coopting key investigative bodies like the police, protect key individuals who should be put under the microscope, and then have the audacity to complain about the length of time it took for the inquiry to be completed.
Two other aspects which the presumption of innocence is dependent on is the reliability of the statement of events of the accused and the way in which the surrounding context may or may not affect the way the accused is perceived by the judiciary and/or a panel of jurors. The Labour Party is also guilty of having done whatever it could to misinform the public about the Vitals inquiry, so we can exclude shedding any tears for the way they may be perceived by the judiciary or a jury when they are the ones who tarnished their own names with their actions. More about the reliability of the accused by way of an example below.
The ‘I don’t know him from Adam’ defence
In 1996, a Dutch national who was allegedly involved with organised crime filed an ECHR case after he was found guilty by a local court for his role in the storage of weapons in a house in Amsterdam. A police raid had yielded “93kg of cocaine, three sub-machine guns, a gun silencer, two bayonets, ten live hand grenades, fifty-six kilograms of Iremite high explosive, eight bolt-action rifles, nine automatic pistols, two revolvers, seven sawn-off shotguns and nearly twenty-seven thousand rounds of live ammunition”.
The house did not belong to the accused, though additional evidence attesting to his presence there (including fingerprints on the bags which were used to transport weapons) was unearthed. An anonymous witness also linked the accused to the crimes which were uncovered by tipping off the police about his link to the organised criminal group in question.
In his complaint with the ECHR, the applicant had argued that, besides the court’s reliance on a verified testimony from an anonymous witness, his right to be presumed innocent had been prejudiced by his country’s court of appeal.
One of the statements the applicant made in his defence was that he did not know another individual who was caught trafficking cocaine and was a key witness in the case. The court dismissed the applicant’s denial because the evidence overwhelmingly refuted the claim, leading the applicant to then argue that he had suffered a breach of his right to be presumed innocent since his claim of innocence was instead used against him in his conviction.
The ECHR declared the Dutch national’s application inadmissible. The European court acknowledged that “the drawing of adverse inferences from a statement by an accused which is found to be untrue cannot be excluded” – in other words, if you lie, do not expect your prosecutors to simply continue assuming you are innocent, especially if an explanation of your actions is clearly in order but is instead found lacking. Like, for example, in a situation where your fingerprints are all over a house full of weapons and drugs, or a dirty deal that led to the obvious decline of the healthcare sector of an entire country.
It is a well-documented fact that the Labour Party has done everything one could possibly do to not only prevent the truth about the hospitals deal from coming out but actively cover up collusion, corruption, and bribery to name but a few. The same individuals and companies who are set to be dragged out in front of court at the end of May are the ones whose signatures are on every document which led us here.
While it is certainly no Dutch household stacked to the brim with AK-47s and cocaine, the sorry state of the three hospitals in question is as close to a smoking gun as we’re going to get with this one. The fact is that €200 million worth of investment was supposed to go into these hospitals. It didn’t. Instead, over €300 million was spent, and we have nothing to show for it except for the luxuries which were purchased by the high-flying executives of Vitals Global Healthcare and Steward Healthcare. An explanation is therefore owed, and it was not even close to forthcoming. Assuming innocence becomes irrational in the face of such flagrant abuse.
And then, the more obvious bit – the fact that our the government executives who signed off on this deal were all aware of their duty to the country and its people, that they were supposed to be inclined towards frugality and responsible decision-making instead of largesse and deliberate misuse of public funds, that they were obliged to justify their actions with the taxpayer instead of concealing information until it could no longer be concealed. They were conscious of the responsibilities which they ignored.
Disgraced former prime minister Joseph Muscat during the swearing-in ceremony of his second term as prime minister in 2017. Photo: DOI
The ‘I swear I didn’t know anything’ defence
Another more recent ECHR case in which a breach of the right to be presumed innocent was claimed involved a Maltese national who was found guilty of failing to pay tax dues. The applicant was registered as a shareholding co-director of a company that went bust after the applicant resigned from his role. The tax department found him liable for approximately €323,500 in unpaid dues in spite of the accused’s claim that he was unaware of the financial troubles of the company (a claim which was contested by evidence), leading to the applicant to claim that he had suffered a breach of the right to be presumed innocent.
In its ruling, the ECHR determined that there was no breach of the presumption of innocence due to the fact that, in his role as a shareholding director, it was implicit that he would be held responsible for the company’s debts. The tax department’s presumption that he was guilty for failing to fulfill his legal obligations as director was fair in the context. In short: if you are in charge, expect to be held responsible for any failures.
Of course, the laws which apply to the director of a company are not the same as the laws that apply to our politicians. But it is beyond the pale to argue that a member of Cabinet or the highest echelons of civil service can somehow be considered totally innocent when it is clear that crimes of this scale could not be committed without, at the very least, the deliberate abdication of one’s duty. To do so is to assume an astronomical level of ignorance on the part of the listener and demonstrate an unfathomable level of disrespect towards the judicial system.
We are faced with a truly surreal scenario in which the most criminal political party this country has ever seen is claiming innocence in front of a court that it is doing its utmost to disembowel. It’s like watching the big, bad wolf picking its teeth with the bones of the three little pigs, burping loudly and exclaiming that it could not quite recall when it last saw their delicious squiggly tails.
In its malicious assault on the judiciary, the government undermines its last line of defence: the otherwise inalienable right of its former and current representatives to be considered innocent until the court finds them guilty of the crimes they are being accused of.
If this assault is not brought to a standstill, we will be forced to watch as our corrupt government burns down what’s left of our democracy so it can continue ruling over the ashes.
