The Malta Independent 17 October 2019, Thursday

Inquiry must be 'fully independent', members’ impartiality 'beyond question’ - COE rapporteur

David Lindsay Sunday, 22 September 2019, 09:45 Last update: about 24 days ago

Council of Europe rapporteur on the murder of Daphne Caruana Galizia Pieter Omtzigt has warned of the public inquiry announced by Prime Minister Joseph Muscat on Friday night that "any such exercise must be fully independent, and its members' impartiality beyond question."

In the wake of Friday's announcement, made just ahead of what was to have been next Thursday's deadline, concern has been raised by activists and Caruana Galizia's family over the composition of the board, which includes Judge Emeritus Michael Mallia, Prof. Ian Refalo and Dr Anthony Abela Medici.

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Contacted yesterday, Omtzigt was, however, was reticent to pass judgement on the composition or terms of reference of the nine-month public inquiry so quickly, saying: "I will now examine closely the terms of reference of the inquiry - published by the authorities last [Friday] night - as well as its scope, powers and membership, before commenting further."

The Parliamentary Assembly of the Council of Europe's Legal Affairs Committee will discuss Malta's implementation of the Assembly's resolution as a whole when it meets during the autumn plenary session, he explained.

That discussion will be held on Monday, 30 September.

Opposition leader Adrian Delia yesterday appeared to echo Omtzigt's sentiment, when he said the inquiry should leave no doubts after it is concluded.  He also said he has called a parliamentary group meeting to discuss the matter further, "as there is a need to provide comfort that if this investigation is going to happen, Malta needs to know the truth."

Council of Europe Secretary General Marija Pejčinović Burić welcomed the announcement of the inquiry, but said: "The Council of Europe will follow the work of the now established inquiry commission very closely and attentively.

"The position adopted by the Assembly in June constitutes an important signal for the safety of all investigative journalists. Freedom of expression and information, as prescribed by the European Convention on Human Rights, cannot be guaranteed in our Member States without full respect and protection for journalists.

"It is a positive development that the Maltese authorities have decided to follow the strong recommendation of our Parliamentary Assembly last June to launch within three months an independent public inquiry into the background of the appalling assassination of Mrs Caruana Galizia."

The Organization for Security and Co-operation in Europe, the world's largest security-oriented intergovernmental organisation, also insisted on independence and impartiality, with its freedom of the media representative Harlem Désir saying that public inquiry needs to be fully independent in order to bring long-overdue justice for Caruana Galizia's family, colleagues and Maltese society.

In a statement yesterday, Désir noted: "I have repeatedly called for an independent and effective investigation, in order for all the facts to be brought to light and for all those responsible, including all perpetrators and masterminds, to face justice."

There could be no justice unless this process was fully independent, comprehensive and impartial, according to Désir, who added: "I will continue to closely monitor developments and the judicial process, in the hope that full justice can be served for this horrific killing almost two years ago."

He stressed that there could be no impunity for crimes committed against journalists.

PM to meet family to discuss concerns

Prime Minister Muscat will be meeting with the family of murdered journalist Daphne Caruana Galizia the week after next, government and family sources both confirmed yesterday.

The week's delay is down to the fact that the prime minister is due at the United Nations General Assembly in the coming week and will not return until the week after, when the requested meeting will be held.

The meeting, this newspaper is informed, will focus on concerns the Caruana Galizia family have about the members of the public inquiry, who were appointed by the prime minister on Friday night.

Contact was made through the parties' lawyers between last night and this morning.

The Caruana Galizia family had asked to meet Prime Minister Joseph Muscat to discuss their concerns right after the public inquiry was announced on Friday night.

In a statement, the family said a public inquiry chaired by a respected former judge "is what all right-minded people have been calling for since our mother's and wife's assassination."

However, it said that "given the gravity of its purpose and its mandate to investigate state institutions, justice demands that the Board's wider members have no financial or political links to the current political administration."

"The Board will be unfit for purpose if the public has reason to doubt any of its wider members' independence or impartiality."

De Gaetano approached to lead inquiry, but declined because of 'perceived interference'

Separate sources speaking with this newspaper yesterday, meanwhile, suggested that former Chief Justice and current European Court of Human Rights Judge Vincent De Gaetano had originally been approach to lead the public inquiry, but he had declined because, according to sources, he felt his own impartiality could be called into question over, according to sources, 'perceived interference'.

Although it is understood there would be nothing preventing him from taking the role, even ethically, although he is a sitting judge, he is believed to have passed on the offer because he was not comfortable with the composition of the rest of the inquiry.

 

Public inquiry lacking independence and impartiality will fool no one - Reporters Without Borders

Reporters Without Borders UK Bureau director Rebecca Vincent, whose organisation has long been campaigning for the public inquiry, said: "The establishment of a public inquiry is long overdue, and is an essential step towards justice for the assassination of Daphne Caruana Galizia. This is the result of the sustained advocacy efforts of her family and civil society groups for nearly two years.

"But a public inquiry that lacks independence and impartiality will fool no one - and the goal remains full justice for this heinous assassination.

"We will remain vigilant and scrutinise the composition and actions of the Board of Inquiry, and act to hold the Maltese government to account for its international obligations."  

 

The arguments for and against the board's composition

Apart from saying it was 'deeply disturbed' to learn from the Caruana Galizia family's statement that the government has not consulted them in any way about the composition of the inquiry, NGO Repubblika yesterday synthesised many of the concerns being expressed about the board's composition, and possible conflicts of interest, as follows:

Prof. Ian Refalo

The critics:

His undoubted legal competence is not the only suitability requirement

Refalo represents the Financial Intelligence Analysis Unit, which Daphne Caruana Galizia had taken to serious task

He also represents the FIAU in the case lodged by Jonathan Ferris, who is widely believed to have been responsible for Panama Papers related leaks from the unit

Refalo counts as a client Adrian Hillman, whose allegedly corrupt relationship with the prime minister's chief of staff, Keith Schembri, was exposed by Caruana Galizia

Refalo also counts among his clients Technoline, which is alleged to have benefitted from the privatisation of state hospitals deal, which Caruana Galizia had also taken to serious task

 

The government:

He is being criticised 'solely due to his role as a professional lawyer'

The right to access to a lawyer and the right of a lawyer to practice his or her profession are cornerstones of the rule of law, and do not impede a lawyer's judgement.

Refalo is well-known for his integrity and is a point of reference for the legal profession in Malta. Lawyers are governed by a Code of Ethics

Dr Anthony Abela Medici

The critics

Expertise appears to be only marginally relevant to the inquiry

Serves as Commissioner for the Voluntary Sector, a government position without security of tenure and, as such, cannot be considered independent or impartial

 

The government

On his role as Commissioner for NGOs: the Voluntary Organisations Act provides for important safeguards of security of tenure for this post.

The claim that the Commissioner for NGOs is dependent on government is incorrect

Judge Emeritus Michael Mallia 

The critics

Impeccable record but involvement in investigations smacks of hypocrisy

Government's insistence on no cross-contamination between public inquiry and the criminal investigations at risk

Mallia was tasked with assessing and investigating the content of Daphne Caruana Galizia's laptop and as such is part of the ongoing criminal investigations

 

The government

His role as court-appointed expert in the compilation of evidence proceedings following the murder of Daphne Caruana Galizia does not interfere with his role as chairperson

Mr Justice Mallia was appointed as expert upon the consent of all parties involved


 


 

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