Issue link: https://maltatoday.uberflip.com/i/1356256
10 maltatoday | SUNDAY • 28 MARCH 2021 OPINION Raphael Vassallo Begging your pardon (again)… WELL, it seems that Prime Min- ister Robert Abela is in a pickle, and no mistake. And at a glance, it looks a lot like the one his immediate pre- decessor found himself facing in November 2019: when Joseph Muscat similarly had to decide on a Presidential pardon for one of the suspects in the Daphne Caruana Galizia murder case… knowing full well that the result- ing information would surely be enough to bring his own govern- ment down (as, in fact, it did). Only in Abela's case, the dilem- ma is infinitely more insidious. For in 2019, the pardon offered to Melvin Theuma led directly to the arrest of Yorgen Fenech, as the suspected prime mov- er behind the Daphne murder conspiracy. And while this was enough to forge a clear link with Muscat's own government – given the extensive network that we now know existed between Fenech, and Muscat's right-hand man Keith Schembri (among others) – well, that's more or less as far as the revelations went, at the time. Closing an eye at subsequent claims that both Schembri and former minister Chris Cardona may have also played a part in the murder plot… in 2019, the incriminating revelations were limited only to Yorgen Fenech's involvement; and – close though he certainly was to the seat of power – Fenech himself was not part of Muscat's gov- ernment. Yet that revelation, alone, was still enough to bring Muscat's career as Prime Minister to a crashing end. Today, on the other hand, Ab- ela is once again faced with the choice of recommending a Pres- idential pardon… only this time, in exchange for testimony that the murder itself had been com- missioned by, among others, 'a former Labour minister'… and, separately, that another 'sitting Cabinet minister' (i.e., one of Abela's own colleagues) was al- so involved in another violent crime. It is, in a sense, of a case of one admission being 'bought' by an- other: two of the executioners in Daphne Caruana Galizia's mur- der are now willing to admit to their own guilt… as long as the Labour government admits to the involvement of one (possi- bly more) of its members in the same crime. Effectively, then, Robert Abela is being asked to place his own party's head on the block. And it may even end up being his own head, too… for let's face it: even if the crime itself occurred be- fore Abela's stint as Prime Min- ister, a revelation of such magni- tude is also likely to just wipe out everything in its path: including not just Abela's credibility, but that of the Labour Party as a whole. For one thing, it would instant- ly call into question everything that Abela himself has ever said and done about the same mur- der… and around the first thing that would pop up is his ill-fated remark, around three weeks ago, that 'no politicians, past or pres- ent' had been named in connec- tion with the case. That didn't exactly age very well, did it? Even today – i.e., before any pardon has been giv- en – it has already been contra- dicted by four of the implicated suspects: Theuma, Muscat, and now the Degiorgio brothers. But if the latest allegations do ever cross that all-impor- tant threshold, and evolve from 'speculation' into 'evidence pre- sented in court'… something tells me that those words will not just return to haunt Robert Ab- ela as an 'embarrassment'. No, they will almost certainly be in- terpreted – not just by his local political adversaries, but also by the foreign press… the Europe- an Parliament… the Council of Europe… the Pangalactic Fed- eration… you name it… – as 'evidence' of some kind of gov- ernment cover-up of its own criminal actions. I need hardly add that the same suspicions would also arise if Robert Abela took 'Option B' instead: and refused to recom- mend the pardon in this particu- lar case. In that event, the Prime Min- ister would have to explain why he chose to grant one pardon, in February this year, to a suspect who limited his identification of culprits only to non-politi- cians… only to later deny anoth- er pardon – under almost iden- tical circumstances – to suspects who were also willing to directly implicate 'a former Labour min- ister'. It would, alas, look suspicious by its very nature… let alone when you also factor in that – unlike Vince Muscat – the infor- mation offered by the Degiorgi- os comes from people who had direct, first-hand knowledge of the conspiracy to murder Daph- ne Caruana Galizia. (In other words: no more 'hearsay' excus- es). So as far as I can see – and pro- vided there isn't an 'Option C' that is invisible to me, right now – it is certainly a choice of evils for Robert Abela. Either way, he loses: and in a sense this is inevitable, giv- en that he also has a somewhat glaring conflict of interest in this case. Not only is he a colleague of at least one of the newly-indi- cated suspects… but his own po- litical survival, no less, now more or less hinges on the outcome of this decision. But this only brings us to the most utterly bizarre aspect of this entire situation… i.e., the fact that the Prime Minister is even faced with this Hobson's Choice at all. In this respect, there is nothing at all 'unprecedented' about Ab- ela's situation. He is certainly not the first Prime Minister accused of having a 'conflict of interest', when it comes to deciding on Presidential pardons. The same criticism was levelled at Joseph Muscat last year… and even at Eddie Fenech Adami, over his handling of the Zeppi l-Hafi case way back in the early 1990s. The circumstances may not, admittedly, have been identi- cal. (In Fenech Adami's case, for instance, the conflict arose because the victim of the crime happened to be his own personal assistant.) Nonetheless, all those cases – and there were others – illustrate roughly the same thing: you cannot exactly 'avoid' conflicts of interest in such mat- ters… for the simple reason that it should NOT be the Prime Minister to take such decisions in the first place. Nor should we even be talking, strictly speaking, about a 'Presi- dential pardon' at all. It is, quite frankly, not the appropriate legal tool to be used in this, or any other analogous case. In fact, the only reason we keep resorting to 'pardons' – when what is actually needed is 'im- munity from prosecution, in ex- change for State evidence' – is because our criminal justice sys- tem simply lacks any alternative administrative tool, designed specifically to meet the current situation's requirements. Ideally, it should be the State prosecutor's role – not the Prime Minister's – to 'recommend' the granting of immunity from pros- ecution; and if the prime minis- ter comes into it at all, it would be in the same capacity as the President of the Republic, when it comes to pardons: i.e., to sim- ply rubber-stamp a decision tak- en independently by the proper, relevant authority. And there is a pretty obvious reason why this distinction is, in fact, made in other countries. The office of the Prime Minis- ter (or equivalent thereof) is, by definition, a 'political' role; as such, its decisions are inevitably going to be governed by political considerations (and nowhere is this more evident than in Abela's current predicament). A State prosecutor, on the oth- er hand, is not only better-posi- tioned to understand the legal and judicial implications of the request itself; he or she is also (ideally, at least) at a judicious arm's length from any such ex- Prime Minister Robert Abela