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This is a two part-series focusing on the decline of law enforcement in Malta. Click here to read part one.
In the eyes of the law, secrecy has always been a thorny issue.
In a society that claims to be transparent, opaqueness is difficult to justify. For example, taxpayers should have a right to know about how their money is spent, in the same way that a shareholder has the right to know about what their return on investment is going to be.
However, there are specific circumstances in which the public’s right to know is superseded by the potential fallout that could occur if a sensitive document were to be published. The Freedom of Information Act is an easy example to follow here. If there is a reason for withholding publication of a requested document, the government must – at least, on paper – justify why that is the case.
In the case of the office of the attorney general, blanket secrecy on all aspects of its operations seems to be the default setting.
In the early days of the hospitals case, I tried approaching prosecutors from the office of the attorney general. Not for a comment, mind you – I was fully aware that they would not publicly comment on anything, because the office doesn’t even have a press unit. All I wanted to ask was whether it would be possible to obtain one of their phone numbers so I could call them in case there was something I wanted to report from a hearing but was not sure of.
In polite but certain terms, I was immediately told that prosecutors in the office are not allowed to talk to the press, even it’s just to seek clarification on something their own office said or did in court.
This kind of blanket secrecy has long been a hallmark of the office, and as we already mentioned in yesterday’s article, former attorney general Peter Grech was certainly a major contributing factor.
The value of secrecy
Former attorney general Peter Grech (left). Photo: DOI
Grech became Malta’s supreme prosecutor in 2010, back when the office held dual powers of both prosecutor on behalf of the state and state advocate. By March 2014, we can already find references to Grech’s predilection for withholding crucial information about potential criminal activity involving the government.
In an editorial piece, the Times of Malta had called into question Grech’s decision to refuse to testify in front of the Public Accounts Committee by citing ‘professional secrecy’, arguing that since he was the government’s lawyer, the entire government could be considered his ‘client.’
The former attorney general was called in to testify about the then-newly elected Labour government’s scandalous decision to withdraw a long-standing case against the Labour Party which involved the highly dubious transfer of property known as Australia Hall.
In 2015, the AG kowtowed to the government once more, in the same exact manner. The government refused to give its consent for the AG to testify yet again in front of another parliamentary committee. This time, he refused to testify about the John Dalli case.
For the five years that followed (all the way to his resignation in 2020), Grech sidestepped every single official line of inquiry and simply refused to divulge pretty much any significant document he was privy to.
One of the government’s highly questionable decisions at the time was the appointment of the attorney general as the chairman of the police’s Financial Intelligence Analysis Unit (FIAU). In May 2017, the concentration of power within the AG’s hands was cast in sharp focus when a leaked FIAU report showed that there was ‘reasonable suspicion’ that both disgraced former chief of staff to the prime minister Keith Schembri and Nexia BT accountant Brian Tonna had taken bribes from the sale of passports.
Both Schembri and Tonna currently stand accused of a laundry list of corruption charges in court in relation to the hospitals case.
When faced with questions from reporters, Grech balked, stammering his way out of it by stating that the FIAU did not conduct investigations and that it was only involved in policy-making, claiming he was not privy to any of this information and that he could not do anything about it if he were because of…you guessed it…confidentiality.
The conflict of interest was glaring: how could the attorney general, the supreme prosecutor of the land, claim he could do nothing about extremely serious allegations involving one of the most powerful unelected officials in the country?
Another boon to the Labour Party is the AG’s steadfast refusal to divulge any kind of information related to magisterial inquiries. When the other major arm of law enforcement is hamstrung by one complacent police commissioner after the other, magisterial inquiries are often the only tool left for the purpose of uncovering major crimes.
When the Egrant inquiry saga was at its peak, disgraced former prime minister Joseph Muscat got to exercise full control over the terms of reference that were set as well as the way in which the document was published – severely redacted at first, and then published only because then opposition leader Adrian Delia had filed a court case following the AG’s refusal to provide him with a copy.
Yet again, the former attorney general did not signal as much as a whimper of protest at Muscat’s selective manipulation of the way the findings were presented, placing himself squarely in the government’s camp by stating that the only reason partial conclusions were published to begin with was because of the effect the Egrant saga had on the country’s governance at large.
Indeed, whenever there was doubt, Grech consistently weighed in the government’s favour – one of his last acts in office before resigning was to push back against the Caruana Galizia family’s calls for a public inquiry. The attorney general buttressed the prime minister’s claim that the magisterial inquiry tasked with looking into the murder should be allowed to conclude before initiating a public inquiry. A convenient arrangement, when considering the AG’s predilection for absolute secrecy about magisterial inquiries.
After the Venice Commission all but forced the government’s hand in 2019, the process to split the office’s dual function as prosecutor and advocate into two respective offices. Enter Victoria Buttigieg, who was appointed state advocate and later took over from Grech after he resigned in 2020.
Attorney general Victoria Buttigieg. Photo: DOI
Four years after the Panama Papers scandal first broke, Times of Malta had revealed that Grech had specifically told the police that seizing evidence from Nexia BT’s servers would be a “drastic” move that would be seen as “highly intrusive”, carrying a possibly “counterproductive” legal risk.
In fact, former police commissioner Lawrence Cutajar attested to this during the public inquiry. He even added that it was the attorney general himself who ‘advised‘ him to keep deputy commissioner Silvio Valletta in his position in spite of the latter’s known affiliation with alleged murder mastermind Yorgen Fenech.
Though current prime minister Robert Abela made a whole show out of installing Buttigieg as attorney general shortly after Grech’s ignominious departure, it was quite clear that the government went out of its way to ensure Grech obtained a lucrative government consultancy shortly after he resigned.
What was even more worrying is the fact that Buttigieg was appointed with the evident purpose of following in Grech’s footsteps. New aberrations emerged as well – primarily, the long series of blunders we’ve witnessed since Buttigieg took over, blunders which often dealt fatal blows to the prosecution’s own cases.
Indeed, the highlights of Buttigieg’s career feel more like a blooper reel:
- the botched HSBC plea deal,
- errors on a charge sheet that allowed Yorgen Fenech’s lawyers (one of whom used to work in the AG’s office before crossing over to the defence midway through the case) to walk away unpunished from alleged bribery charges involving former journalist Ivan Martin,
- accusations of misleading court from furious magistrates who were growing impatient with the office’s incompetence and the blunders that led to the collapse of the criminal case against Christian Borg (both within the same week),
- and several other screw-ups which, if we had to list all at once, would require a whole other article such as this column.
The only times we’ve witnessed the attorney general take a decisive, unwavering approach towards prosecuting someone is when the person on the receiving end of it is not someone who is in power.
Indeed, the only two recent, notable instances in which the attorney general followed the letter of the law and went above and beyond to pursue what was billed as criminal behaviour involved criminal lawyer and eternal thorn in the government’s arse Jason Azzopardi and the El Hiblu 3, those three young individuals who heroically saved dozens of lives on the high seas and ended up getting accused of terrorism for it.
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