Forty years later, we know that human rights were breached

Daphne Caruana Galizia Sunday, 12 January 2014, 09:48 Last update: about 11 years ago

Forty years after the event, a court of law has at last declared that the shareholders of the National Bank of Malta, which was forcibly taken over by Dom Mintoff’s government after a state-sponsored run which saw a flood of withdrawals, had their human rights breached.

The case in question – Philip Attard Montalto v the Government of Malta - refers only to those shareholders who signed over their shares and who were actually a party to this particular suit. However, around 85 per cent of the shareholders had signed their shares over to Mintoff’s government, such were the intimidation, duress and threats of violence or revenge, and most of these individuals (or by now, their heirs) participated in this human rights case.

There is another case coming up for judgement soon – that of the shareholders who did not sign over their shares. Though far fewer in number, their shareholding was significant. Given that the court has ruled the human rights of those who signed their shares over to have been breached, the obvious conclusion is that those who did not sign have an even clearer case. Their shares were taken without any consent at all, not even severely vitiated consent.

There are two other categories of shareholders: those who signed their shares over, and those who did not sign their shares over, but who were not party to these two human rights cases. They include one shareholding family who between them held some 15 per cent of the shares. It remains to be seen whether they will now file their own human rights cases or whether, if the government does not appeal this judgement and the one expected to follow soon, they will instead form part of any settlement negotiations which follow.

It seems to me (and to many observers, to say nothing of how the actual participants view the matter) that it would be the height of indecency for the government to appeal against this human rights judgement. It would, on the other hand, be entirely apposite if this particular government – a Labour government - were to be the one to act to help salve the painful damage done by another Labour government so long ago. The ugliness has festered for long enough, and with a court judgement at last there is no longer any excuse of the sort that previous Nationalist governments relied on in passing the buck to the courts of law.

On the basis of this judgement, the court will now consider compensation and damages, but this would probably mean several more years of wrangling, by which time even the heirs of the original shareholders at the time of the take-over will be close to the grave or in it. Compensation in human rights cases is not as straightforward as it is in civil suits, where there are technical definitions and parameters. But ironically, the civil court turns out not to have been the place to win compensation or acknowledgement of what was done to shareholders, because the few individuals who filed a civil suit lost it in a web of technicalities that do not provide for the hostile environment of the time.

The courts are sometimes not a means of justice but a means of delaying it to the point where justice is lost or becomes meaningless. It would be far more honest all round if the government were to move to reach settlement out of court. An earlier, Nationalist government had tried this, but the figure proposed was far too low. It appeared to have been calculated on the basis that those who had almost lost hope would prefer to take anything that was offered, cut their losses and close that chapter. But there is far more at work here. Those who have stuck it out so long end up more determined to see justice done, even though the process is exhausting and demoralising at times.

There is a deep sadness inherent in this judgement in that those who most deserved to hear it read out – for they were the ones on the frontline of Mintoff’s assault - are dead, some of them long dead. Their heirs stand on their behalf but beyond those who were already adult at the time, they were not the ones who had to go through that living hell from which most never recovered, financially, physically or psychologically.

And please let there be no mistake about it: Mintoff’s take-over of the National Bank of Malta, which had to be done through force of intimidation because there was no legal basis for it, was the single act that made possible all that came afterwards. By controlling the banks – he dealt with the others in different ways – he could control businesses and individuals. And by controlling those businesses and individuals, he could kill off democracy in every respect but the five-year vote for Parliament. And by controlling the banks, he controlled practically every aspect of the economy, investment, who got to borrow and who did not, who got to buy a home and who did not, whose business was ruined and whose was helped. The ensuing 13-year nightmare was made possible that night in December 1973.