Issue link: https://maltatoday.uberflip.com/i/1238298
12 maltatoday | WEDNESDAY • 22 APRIL 2020 OPINION SOME of you might recognise that as the intro to a rather fa- mous rock 1990s anthem by Guns'N'Roses… though film- geeks like me will be quick to point out that it was actually lifted from the 1967 movie 'Cool Hand Luke', starring Paul New- man; and that… But, whoah! Let me not start this article with a digression. Point is, 'failure to communi- cate' is precisely what's we've got going on here in Malta, right now. It is the reason for those crim- inal charges filed by Repubbli- ka against the Prime Minister and the AFM last Friday… as well as for the disproportionate reactions this initiative pro- voked on either side of the po- litical divide. It also accounts for the fact that – even as I write this ar- ticle – the same NGO has now changed its version of events (and with it, the entire nature of their own criminal com- plaint)… but most seriously of all, 'failure to communicate' is also the reason why we will now probably never get to the bottom of exactly what hap- pened, out in the open sea, on Thursday 9 April 2020. Let's start with the allegations themselves. On 9 April, the NGO 'Alarm Phone' tweeted that a dinghy carrying 70 pas- sengers had been sabotaged by crewmembers of an AFM pa- trol boat, in Maltese territorial waters. The exact words were: "The 70 people in distress near Mal- ta called us moments ago and said: We have an emergency here. Malta military came and cut cable of motor. Water is in the boat. Malta military said 'I leave you to die in the water. Nobody will come to Malta'." The following day (April 10) the same allegation was report- ed in the New York Times; and the day after that, it was re- ported locally that "the Prime Minister's Office has refused to flatly deny a reported clash between AFM soldiers and migrants"; and that "an AFM spokeswoman said she had no comments to make." It was only on 16 April – i.e, a week after the allegation was originally made – that the Maltese government finally re- sponded in any official capaci- ty: claiming that: '"The boat in question had already been in distress for a number of days while in Libya's Search and Rescue Area, not in Malta's SAR"; and that - when the boat did eventually drift into Mal- ta's SAR – "Malta immediately followed the established coor- dination procedures […] and the AFM called nearby vessels to assist." Later still, it was confirmed that the vessel was indeed res- cued in Malta's SAR zone, and brought here by the same AFM patrol boat accused of sabotag- ing it. The 66 (not 70) passen- gers are now being quarantined here in Malta. Meanwhile, Repubblika filed its criminal charges on the same day – 16 April - that the government issued its own ver- sion of events: in other words, a week to the day after the inci- dent was alleged to have taken place. And I'll stop there for now, because already there are mul- tiple communications failures staring us in the face at all lev- els. For the sake of both fairness and chronology, it must be said that the first mistake was actually made by The New York Times: which (as so often happens here) rushed to print with an allegation from a sin- gle source, without contacting either the Maltese government or the AFM for their side of the story. From this, it follows that public opinion would auto- matically divide along entirely predictable lines. Anyone with an agenda against the Maltese government (a category which obviously incudes Repubblika) would eagerly lap up the alle- gation as unquestionable fact… while 'the other side' of the equation would just as predict- ably assume the opposite, and instantly rally to the defence of both government and the Armed Forces. I need hardly add that both ap- proaches are equally flawed… and for the same reason, too. But I'll take them one by one: starting with Repubblika's han- dling of this sorry situation. The main flaw is most clearly visible in the press release last Sunday: in which it assumed that "the horrific silence since reports of the alleged incident" amounted to a "tacit admission of guilt" on government's part. By now, you will no doubt have read that the same NGO yesterday submitted fresh evi- dence (in the case it had initi- ated itself, please note), which suggests that the act of 'sabo- tage' may actually have been "a standard procedure in rescues of this type to ensure the safety of all parties involved". In other words: two days after pronouncing 'guilt', in no un- certain terms, in a case involv- ing the attempted murder (by AFM personnel) of around 70 people at sea… they themselves seem to be suddenly suggest- ing that the 'crime' in question may not even have taken place at all. So… where, exactly, does that leave their earlier accusation of "tacit admission of guilt"? Is this not a classic case of de- ciding guilt beforehand… and then expecting the law-courts to confirm a verdict that has al- ready been handed down? Even before this latest devel- opment, however, there were other indications of reckless- ness on Repubblika's part. In that same statement last Sunday – i.e., two days after the police report was formal- ly made - the NGO offered to drop its charges against those 12 AM members… if the gov- ernment announced a magiste- rial inquiry into the matter (as they separately – and rightly, this time - argue it should have done from the outset). However, it turns out that this is not a call they can legally make themselves: apparently, once a police report is filed, it is up to the Police Commis- sioner – and not the entity who filed it – to decide whether or not the case can be dropped. But that's just a legal techni- cality. Personally, I am more inter- ested in the fact that Repub- blika chose to directly initiate proceedings of a criminal na- ture, on the basis that govern- ment had not ordered any form of inquiry into the incident – instead of, say, filing a Con- stitutional request for a mag- isterial inquiry themselves (as the Caruana Galizia family had done, in connection with the Daphne Caruana Galizia mur- der case, in April last year.) To put that another way: peo- ple generally press criminal charges on the basis of crimes they have good reason to sus- pect actually happened (most commonly, because they are themselves the victims). And while the law does permit third parties to report crimes in which they are not directly involved… it normally happens only in cases where there is similarly reasonable conviction (e.g. by a witness to the crime). In this case, however, Repub- blika claims to have been mo- tivated by 'the lack of any in- vestigation'… and yet, instead of availing of the existing legal means to force an investiga- tion to take place… they simply pole-vaulted to the part where the investigation had not on- ly already happened (in their own minds, naturally)… but al- so yielded enough evidence to warrant a criminal prosecution in the first place. Sorry, but that's a subversion of the usual judicial proce- dure. There should first be an inquiry… and if any criminal procedures follow at all, they should be based on that in- quiry's findings (and not on the basis of mere suspicion alone). Repubblika, of all people, should know this: after all, it defines itself as a 'rule of law NGO'. So to me, the overzeal- ousness it displayed in jump- ing straight to the criminal prosecution part – omitting all the inconvenience of actually investigating the allegations beforehand – only betrays the fact that… ... well, let me rephrase what I was about to say. At the end of the day, it only confirms, be- yond any real shadow of doubt, what we all already knew any- way: i.e., that Repubblika's mo- tives in this case are not exactly 'genuine'… and I'll leave it at that. Nonetheless… these and oth- er mistakes do not exempt ei- ther the government or the AFM from their own responsi- bilities in this matter. Whatev- er else it got wrong, Repubblika is still perfectly right about at least one thing. Government should indeed have initiated a magisterial in- quiry of its own accord… but didn't, for reasons that have never been explained. And as for the AFM: despite finding itself on the receiving end of such calamitous alle- gations – and having a press communications office of its own – to date, it has still not issued any form of official clar- ification whatsoever. This might not – as Repub- blika has unwisely argued – amount to an 'admission of guilt'… but it certainly does amount to a serious institu- tional failure in its own right. It suggests that government chose to disregard not only the allegation in itself… but al- so the due legal process that it should have triggered: sending out the message that this gov- ernment clearly considers itself to be above and beyond all ex- ternal scrutiny… even when it stands accused of the most hei- nous crimes under the sun. So even if the motives were entirely dishonest, and the case itself was so inexpertly handled that it is now seems destined to just shrivel away into nothing… we should, at least, be thankful that the matter even got to be investigated at all. Raphael Vassallo 'What we've got here is failure to communicate…'