Issue link: https://maltatoday.uberflip.com/i/1519042
ment handed down in the consti- tutional case that Yorgen Fenech had filed against Superintendent Keith Arnaud, the Commissioner of Police, the Attorney General and the Home affairs Minister. In his judgment, Mintoff deci- mated line after line any sugges- tion that lead investigator Arnaud was unfit for purpose. But Mintoff went further. In his judgment he said it was inev- itable that the appointment of a leading businessman in Malta as chief of staff at the Office of the Prime Minister, with all the en- tanglements and wide-ranging contacts with the business world, would bring with it many situa- tions of conflicting interests. He added that this had created seri- ous doubts about whether, in such a delicate situation, Schembri's personal interests would take the upper hand and prevail over the public interest. This comment reminded me of what people like Mintoff secretive- ly said in the Labour Party before 2014, just before he was appoint- ed a judge. Then everyone meekly questioned this but never dared raise the matter. "Whatever shortcomings might have occurred during the investi- gation into the murder of Daph- ne Caruana Galizia… it is highly disgraceful that Inspector Keith Arnaud, because of other people's conflicts of interest, was put in this pitiful position, where that which he was officially and confidentially reporting on during briefings at the OPM was revealed in the most vil- lainous and disloyal manner, to the point where those arrested at the Marsa potato shed on December 4, 2017 had already been tipped off about their impending arrests. As a result, the lives of Inspector Ar- naud and those colleagues of his in the police force and the army who participated in that raid, were placed in grave danger." Mintoff observed that: "When meetings or briefings were called between the Prime Minister and his Chief of Staff, Keith Schembri, that is to say the Prime Minister's factotum and alter ego, it is natu- ral to presume that there was no hidden conflict of interest, like the 'fraternal friendship' between Yor- gen Fenech and Keith Schembri." That observation in itself is the question all of us asked after the events that dominated Malta in December 2019, after the arrest of Yorgen Fenech and the revela- tion of his close business links with Schembri. Mintoff went on to remark that the Office of the Prime Minister should not be involved in inves- tigations into serious crimes, and that briefings about them and par- don requests should be limited to a technical level, at most. "The court reminds that this country has a history of presiden- tial pardons with strong political connotations, which did not al- ways have positive outcomes." That comment was meant to re- fer to several cases and was moti- vated by Wenzu Mintoff's political experience as a journalist in re- porting and debating so many cas- es linked to presidential pardons. But it also revealed what he re- ally thought about the way Joseph Muscat operated at Castille. Then what followed in the judge- ment was a typical Wenzu Mintoff vintage indepth analysis which sounded more political than juris- dictional in spirit. And he said: "The greatest in- stitutional shortcoming in this homicide investigation were the continuous leaks of confidential and restricted information and the possible compromising of evi- dence as their consequence, which could have had a devastating effect on the public's trust in the police and on its image and credibility." The leaks which perforated the investigation were continuous and had reached back to its very start, said the court, pointing to the raid on the potato shed in Marsa in which the Degiorgio brothers and Vince Muscat were arrested. "The court is of the understand- ing that before those responsible for the aforementioned leaks are found and duly punished, it will be hard to restore the public's trust in the integrity of the force." Another institutional deficiency was the undeclared conflicts of in- terest brought to light during the course of the investigation, includ- ing personal friendships with sus- pects or persons of interest, made all the graver by the involvement of high ranking government offi- cials like the OPM Chief of Staff and the Commissioner of Police. The judge recommended that the legislator "actively consider that conflicts of interest of this kind, especially at the institutional level, which could potentially in- terfere with police investigations and result in tampering with the collection of evidence should be classified as very serious crimes, to be punished harshly." There appeared to be confusion about the investigations into the leaks, said the judge, also pointing out that to date, nobody had been charged in connection with them. "What is certain, however, is that the presence of Keith Schembri, a leading businessman and the Prime Minister's alter ego, during briefings at Castille, had created a situation of serious and unde- clared conflict of interest which had shocked investigators… Such thorny situations, where even the police found themselves in a quan- dary as to how to behave in front of a very powerful person like Schembri are an inevitability when a businessman is appointed as the Prime Minister's Chief of Staff." He then pointed out a basic observation that everyone with a modicum of intelligence and self-respect would have noted. When the police had searched Schembri's Mellieha home, they had failed to also carry out a si- multaneous search of his office at Castille and his other businesses, as they should have. The police had also failed to seal and put a guard outside Schem- bri's office in Castille until it could be searched, leaving the keys to this office in the hands of the new OPM chief of staff who replaced Schembri. Mintoff also commented on the case of Schembri's lost mobile phone. "And this in circumstances where upon his arrest, Schembri had told the police that he had lost his mobile phone, which the evi- dence shows that he had been us- ing just a few hours before and had not reported its loss to the police." Mintoff observed that there was no explanation as to what criteria the police had used to seize elec- tronic devices and their cloud ac- count login details. Astutely, he also noted that it was unclear as to whether such devices were taken from every suspect or person of interest or just a selection, "or even whether nothing was collected from some of them." "When Keith Schembri was asked to provide the passwords for his cloud data to the police, it seems to have been enough for him to say that he would rather not because he had commercially sensitive information saved there, and the issue appears to have stopped there." The two judgments and the two judges confirm, whether we like it or not, that the judiciary and the courts espouse more influence and power than the Opposition and the media put together. It is a power to be reckoned with and one that will not go away. maltatoday | SUNDAY • 14 APRIL 2024 OPINION 5 and the perky judge Saviour Balzan is founder and co-owner of Media Today, publisher of MaltaToday, he is a TV host and pollster Wenzu Mintoff and Franco Depasquale