Issue link: https://maltatoday.uberflip.com/i/1443447
15 maltatoday | SUNDAY • 16 JANUARY 2022 NEWS 'It still makes sense', Sant on inquiring magistrate he proposed in 1996 JAMES DEBONO FORMER Labour leader Alfred Sant says Malta missed out on an opportunity back in the 1990s to take up his legislative proposal during his brief spell in power, to create an office for an inquiring magistrate. The Nationalist Party has pro- posed a legislative Bill to intro- duce a special anti-corruption magistrate with the power to initiate investigations into graft allegations. The proposal had been first touted by Alternattiva Demokra- tika in its 1992 and 1996 elector- al manifestos, and included in a draft law which never made it to parliament. Sant, who was Prime Minister between 1996 and 1998, thinks the proposal makes sense 25 years later, and recalls wide- spread opposition from quarters close to the PN when he made the same proposal. "The PN did its best to ignore it and showed clearly it was not interested in dealing with the government on the issue." Sant moreover recalls that the Chamber of Advocates at the time – which he contends is composed "of the same group of people as the PN leaders" – had "brought up all the difficulties they could think of and stone- walled." Even representatives of the ju- diciary were against the special magistrate, "claiming that judges and magistrates are not there to do police work," Sant told Malt- aToday. The fact that the proposal was subsequently aborted and not taken up by PN governments after 1998 meant that Malta has lacked an inquiring magistrate with their own team of experts to tackle major cases, like the Enemalta oil scandal under Law- rence Gonzi or the Panama Pa- pers under Joseph Muscat. Would history have been dif- ferent had the proposal been ap- proved? "That we did miss an opportu- nity, yes I think so. Whether his- tory would have been different I cannot tell, for Maltese obfusca- tion as a way of life has great re- silience, and the island is so small that the links between friends of friends can be extremely corro- sive," Sant said. Sant has always found the per- manent commission against corruption set up after the 1987 election lacking in its scope and powers. "I am one of those who dis- believe that the structures laid out in the anti-corruption com- mission mode ever made sense. or can be valid and effective… So yes the proposal still makes sense but under proper condi- tions of application." But Sant qualifies his support for the reform with a note of cau- tion: urging legislators to give at- tention to the long-standing fear that "an inquiring magistrate could him or herself have politi- cal and other aims in proceeding with inquiries", noting interna- tional precedents, such as the prosecution of former French President Nicolas Sarkozy and former Brazilian President Lula da Silva in the Lava Jato affair (Operation Car Wash) – "where definitely something fishy was going on," Sant opines. In 2019, online news website The Intercept published leaked Telegram messages between the judge in Lula's case, Sergio Moro, and the Operation Car Wash lead prosecutor, Deltan Dallagnol, in which they alleg- edly conspired to convict Lula to prevent his candidacy for the 2018 presidential election. Moro was later appointed minister by right-wing Brazilian President Jair Bolsonaro. Lula was subse- quently released – he is now the favourite to win the forthcoming presidency. Sant also insists that while the proposal for an inquiring mag- istrate "still makes sense" it will only be effective if beefed up "with proper conditions of ap- plication." Sant contends that the propos- al will only work if the special inquiring magistrate is given ex- ecutive independent staff with police powers, but this should be subject "to some form of scruti- ny and transparency." Sant also said the magistrate and his staff "need to be guaran- teed security of tenure and pos- sibilities of career progression and/pr income security" which is essential in "the minute Mal- tese context" where they "could soon become labeled as 'bojja' (executioners)." PN proposal foresees equipping magistrate with investigative tools In the legislative proposal made by the PN the investiga- tion and prosecution of corrupt practices will become the sole prerogative of a "special inquir- ing magistrate," chosen from the existing pool of magistrates who will be directly appointed by the President of the Republic. As proposed the law makes no ref- erence to any need of prior ad- vice of the Prime Minister. Significantly, the inquiring magistrate will rely on his own staff and will not depend on the police in carrying out his inves- tigations. The commissioner of police will be legally bound to detail police officers to assist the mag- istrate in his/her investigations. Moreover the inquiring magis- trate, who will have security of tenure throughout the six-year role, will be able to commence investigations on his own initi- ative. This means that investigations on the Panama papers and re- lated spin-offs would not have required a police report to be filed by someone like Simon Busuttil, but would have been commenced by the inquiring magistrate. The PN is also proposing grant- ing the President of the Republic the power to grant a "certificate of immunity" to anyone provid- ing evidence to the inquiring magistrate without risking in- crimination. Significantly it will be the spe- cial inquiring magistrate who will present the request to grant immunity and the president will not be following the advice of the Prime Minister and the cabinet as happens in cases of presiden- tial pardons like the one granted to Melvin Theuma. jdebono@mediatoday.com.mt Former Labour PM recalls resistance to similar anti- corruption magistrate proposal from PN, judiciary and lawyers when this was originally proposed by his government Alfred Sant, who was Prime Minister between 1996 and 1998, thinks the proposal makes sense 25 years later, and recalls widespread opposition from quarters close to the PN when he made the same proposal. "The PN did its best to ignore it and showed clearly it was not interested in dealing with the government on the issue." "That we did miss an opportunity, yes I think so. Whether history would have been different I cannot tell, for Maltese obfuscation as a way of life has great resilience, and the island is so small that the links between friends of friends can be extremely corrosive"