A problem encountered each time I think of the next subject about which to write for this newspaper is the embarrassment of choice – which tragicomedy to select and write upon for the forthcoming contribution. Only in these few weeks, I had to write on Abela’s abortion law u-turn; then the complete volte face in relation to the inquiry into the death of Jean Paul Sofia; and the illegal legal notice establishing the Centre of the Maltese Language. Then there is another tragicomedy concerning the Prime Minister and his justice minister who, unashamedly, reveal secret information with impunity in relation to a magisterial inquiry, for we all know beforehand that notwithstanding this violation of Maltese secrecy law, neither the Prime Minister, nor the justice minister, will ever be prosecuted and convicted in court once this criminal prosecution lies in the hands of the Attorney General and the Commissioner of Police who are both Labour government political appointees.

The Nationalist Party, on 19 July 2023, submitted a complaint to the Commissioner for Standards in Public Life where it requested this Office to investigate how the Prime Minister and the Justice Minister were both privy to secret information that they are not authorised by law to know and that should uniquely be in the possession only of the Attorney General. The facts of the case are that in a press conference attended by both ministers, the Prime Minister divulged that the Inquiring Magistrate into the death of Jean Paul Sofia had requested an extension to conclude her inquiry.

Such notification, that is not exactly a request, is made confidentially by the magistrate to the Attorney General in terms of the Criminal Code. Hence, the natural question that arises is how could the Prime Minister and the Justice Minister know of such correspondence? Was it the Inquiring Magistrate who informed them? Surely not. Was it the Attorney General who informed them? Of course, until the Commissioner of Police investigates this criminal conduct, it is not possible to establish from where the leak occurred. But the difficulty is that the beneficiaries of the leak – of the illegality – were none other than the Prime Minister and the Justice Minister who illegally not only received secret and confidential information that they were not entitled to, but – in flagrant breach of law – divulged it for all Malta to know.

If the leak came from the Attorney General personally or from her office, whoever is responsible must be prosecuted under article 133 of the Criminal Code and article 9 of the Official Secrets Act. The latter also applies to the persons – in this case the Prime Minister and Justice Minister – who were in receipt of the illegal disclosed information (article 10 of the Official Secrets Act) and published it. Of course, the question here will arise whether the Prime Minister and Justice Minister will seek a presidential pardon (which they will surely get) and whether the Attorney General will issue a nolle prosequi (abandonment of proceedings) in her own favour or in favour of the person in her office caught passing secret and confidential information to persons who should not have been privy thereto, except illegally (which the Attorney General will surely get but as to the other officer it all depends whether s/he enjoys scapegoat status or immunity from prosecution status).

The Commissioner of Police’s investigation – if ever it will be held – is not as straight forward as it seems. There are indeed several procedural hurdles that need to be surpassed to establish the truth in this case and it is very much doubted whether this complaint will ever reach that stage to identify who passed on the secret information to the Prime Minister and the Justice Minister, unless these two or one of them tells the truth, which they will surely not do as otherwise they will incriminate themselves.

But as truth, good governance, and integrity have no currency in the Abela administration, it will be impossible to arrive at it unless there is a whistleblower who will spill the beans. This investigation is quite a risky business for government as the intrigue connected therewith might not only lead to the downfall of the government but criminal action being initiated against the Prime Minister, the Justice Minister, and their spy in the Attorney General’s Office, whoever s/he might be, provided – of course – that the institutions are left to work without any form of political interference which, in the banana republic of Malta, is only wishful thinking. For one, I cannot ever imagine, let alone see, the Commissioner of Police having the mettle to arrest, detain, question, investigate, and charge in court the Prime Minister and his Justice Minister for breach of official secrets legislation.

As to the Standards Commissioner’s investigation, will it lead anywhere?

First, the Prime Minister and the Justice Minister, not to incriminate themselves, might exercise their constitutional right to silence before the Standards Commissioner and refuse both to reply to his letters or attend to a meeting with him. For, after all, it is they who disclosed publicly that they were privy to secret information that they are not entitled by law to know. All this is publicly available evidence black on white (well, today in colour) on television cameras. In that way, it would be impossible for the Standards Commissioner to arrive at the truth and conclude his report, because the Standards Commissioner would be faced by two living mummies with a tight wrapping tied around the jaw to force their mouths to be kept absolutely shut, lest one shares an iota of information that can assist the said Commissioner to conclude his report.

This is quite a tricky complaint for the Standards Commissioner as well. Will he pass the buck to the Speaker as he did in Arnold Cassola’s education minister’s complaint? Probably not. The scapegoat will have to be the Constitution and the law! But this option – of passing the buck – is not applicable here as the Standards Commissioner can take direct cognizance of the evidence in the media that should enable him to conclude breach of ethics by the Prime Minister and the justice minister.

For the task of the Standards Commissioner is not to identify the mole in the Attorney General’s Office who is passing on sensitive secret information to the Prime Minister and Justice Minister but whether the latter two ministers breached the ministerial code of ethics that, amongst other things, requires them to observe fully the law not to subvert it. But, of course, this report will lead to nowhere once it goes to the Committee of the House on Standards in Public Life and the Speaker will vote to keep the matter open, thereby closing this whole farce, whilst, for the umpteenth time, making a farce of the institution of Parliament. Of course, if the Standards Commission wants to avoid embarrassing himself with finding against the Prime Minister and the justice minister, he will surely have recourse to article 18(4) of the Standards in Public Life Act that reads as follows:

‘If, during or after any investigation, the Commissioner is of the opinion that there is substantial evidence of any significant breach of duty or misconduct on the part of any person to whom this Act applies, he shall refer the matter to the appropriate authority including the Police: Provided that the Commissioner shall suspend his investigation during the time when the matter stands referred as aforesaid but shall, without prejudice to the independence of the police investigation, be entitled to demand information from the Commissioner of Police about the progress of such investigation and about the date envisaged for the conclusion of the investigation’.

Instead of passing on the buck to the Speaker, this time round, he can pass it on to the Commissioner of Police!

Second, the Attorney General and all her officers may all refuse to give evidence in the light of the fact that magisterial inquiries are by their nature secret and to tender such evidence would render them, or at least those involved in the leak, in breach of the criminal law. Quite a convenient excuse. Passing on secret information in breach of the Criminal Code to the Prime Minister and the justice minister and then relying on the same Criminal Code not to divulge their criminal act! But of course now the inquiry is concluded and in the public domain. So this mode of defence should not be accepted by the Commissioner for Standards and the Commissioner of Police. Of course, this should not stop the Opposition from demanding a parliamentary inquiry into how such secretive information was disclosed from the Attorney General’s Office. Though the same procedural difficulties may be encountered here as well. But at least the show will have an entertainment value, even if no truth is arrived at.

What would be interesting is whether the Prime Minister, Justice Minister and Attorney General will have recourse to their constitutional right to silence. Irrespective of the legal implications of this move, the political and moral implication is that they are guilty and hiding behind the law’s provision to cover their back. It also would be scandalous for these three constitutional officers who, like ordinary criminals, make use of this right. Such action would, needless to say, raise doubts as to their integrity and propriety and, therefore, their suitability to continue to hold their respective offices.

Yet whilst from the Prime Minister and the Justice Minister’s press conference it is clear that the information was somehow obtained from the Attorney General’s office, it is not clear who divulged that information to them. To date, no administrative inquiry has been appointed to investigate the leak and it is useless asking whether this leak is being investigated by the Police as we already know what the standard reply will be: the Police are precluded by law from divulging anything that remotely relates to a criminal investigation. Quite a convenient excuse not to do nothing, not to say nothing, and not to be accountable!

Whatever the outcome of the Standard Commissioner’s investigation would be – and I very much fear that the outcome will be that he does not possess the necessary resources to investigate the complaint due to the secrecy provisions of the Criminal Law and the right to silence in the Constitution – the only way forward would be for the Nationalist Party to complain to the Commissioner of Police against the Prime Minister and the Justice Minister who have breached the criminal law when they revealed secret information related to a magisterial inquiry.

But the 64 million dollar question is: will the Commissioner of Police arraign the Prime Minister and the Justice Minister in court, even though there is ample evidence with their being caught on camera disclosing secret information related to a magisterial inquiry? This is of course a rhetorical question because it is obvious that the Prime Minister’s lapdog will do nothing of that sort for loyalty comes always before duty for the Attorney General and the Commissioner of Police. After all, the Commissioner knows his position not to the Opposition, to the Inquiring Magistrate, or to Isabelle Bonnici. He knows his position to the government of the day and his loyalty must inevitably be to his Prime Minister, not to justice, to duty, or to the uniform that he wears.

 

It is only the inquiring magistrate who can order the Police to investigate from where the leak occurred. But the Nationalist Party will have to force the Commissioner’s hands to do his job through the courts. Although the courts can order the Commissioner to do his job, they can never enthuse a recalcitrant public officer to work diligently, expeditiously, and efficiently, more so that his performance allowance would not be approved by the courts but by government who would has all the interest that justice is delayed to the utmost possible time until the crime becomes time barred.

The conclusion is the usual one. No respect for the rule of law and more impunity to the culprits, this time in the highest offices of state. All this is happening with the blessing of the institutions of the state – the Commissioner of Police, the Attorney General, the Prime Minister, and the justice minister. Can this country stoop lower than this? Well you never know with this government that never stops amazing us. In all probability, the Prime Minister and his ministers will surprise us yet again with other tragicomedies they have in reserve for us in the coming days. Patience, my reader. You only have to wait and see. More tragicomedies are on the way!

I am not much in favour of the Prime Minister and the Justice Minister being arrested and interrogated by the Police to establish who was the source of the leak of the secret and confidential information obtained by them in relation to the Inquiring Magistrate’s report to the Attorney General on Jean Paul Sofia death. I am sure that the Commissioner of Police, in order to appease his political masters, would be the first to agree wholeheartedly and unconditionally with this advice. However, my advice is intended not to shield the Prime Minister and Justice Minister from justice or to deny the opportunity to the Commissioner of Police to do the duty for which he is paid for. My advice to the Commissioner of Police is to wait for Parliament to enact the change in the Constitution to the 48 maximum hour rule to detain a suspect so that he could utilize the five and a half days detention that Abela’s government and parliamentary group is supporting in Parliament. In that way, both the Prime Minister and Justice Minister will be the first – pioneers if you want to call them so – to taste their own medicine. In that way they can personally gauge to its effectiveness or otherwise. In this way, the amendment could be tried and tested.

If the Commissioner of Police wants the Prime Minister and Justice Minister, during their detention, to speak up, admit guilt in a presence of their most trusted advocate, and spill the beans on their informant, he need not torture them but reserve to them the Peppi Azzopardi VIP treatment: a dirty cell with a mattress not even suitable for pigs and rats, infested with mosquitoes and other crawling and flying creatures. In that way the scars and bits on the Prime Minister’s and Justice Minister’s body cannot be forensically attributed to human mishandling at the behest of the Commissioner of Police. A couple of mosquito stings would be more effective to arrive at the truth than crude torture and violent beatings.

The conclusion of this piece is quite straight forward. If the Prime Minister and Justice Minister have direct access to secret and confidential information held under the personal responsibility of the Attorney General, or are in a position to give directions to a supposedly independent officer of state, then what guarantees do we have that the Attorney General is truly constitutionally independent from government? Bearing in mind that (a) neither the Prime Minister, nor the Attorney General have issued a denial that the secret and confidential information disclosed to them has reached them through the Attorney General personally or an employee in her Office, under her instructions or otherwise, and (b) that no independent board of inquiry has been appointed to investigate how – in breach of the Criminal Law – the Prime Minister and the Justice Minister were caught red handed in possession of incriminating information held exclusively by the Attorney General, all this leads one to reasonably conclude that the Attorney general’s independence from the government has been seriously dented.

This raises several consequential questions. Is the Attorney General, in the exercise of the criminal prosecution acting upon directions from the Prime Minister or the justice minister? Has it not been reported in the local news that the Police were instructed not to prosecute a minister for breach of law? The same questions apply equally to the Commissioner of Police. The Attorney General’s silence together with that of the Commissioner of Police, the Prime Minister, and the justice minister raises more questions and suspicions of bad conduct than it answers. This silence in itself speaks volumes in understanding the bad governance that the banana republic of Malta is afflicted with. It contributes to normalise illegality at the highest echelons of state power. A disgrace for Malta indeed!

 

Kevin Aquilina is Professor of Law at the Faculty of Laws, University of Malta