Issue link: https://maltatoday.uberflip.com/i/240181
11 News maltatoday, SUNDAY, 12 JANUARY 2014 National Bank overnment The ruling appears to confirm that BOV in fact represents a case of stolen goods having been rebranded and resold, and there is a case to be made for the entire country to be considered an accessory to the crime National Bank of Malta logo been done years ago and the delay has only made the moral choice more obvious and necessary. I do hope people will see this for this simple choice it is." National guilt In his 37-page ruling, Mr Justice J. R. Micallef observed that Article 37 of the Constitution of Malta had been breached in the course of the National Bank takeover, and that the shareholders' human rights had been infringed because "the way their shares (and consequently the wealth that those shares represented) had been taken away was done in violation of the most basic elements required by [Article 37]". Article 37 states that "No property of any description shall be compulsorily take possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law applicable to that taking possession or acquisition – For payment of adequate compensation; Securing to any person claiming such compensation Securing to any party to proceedings." By implication, it follows that the legal instruments used by the Mintoff administration to acquire the NBM for no compensation in 1973 have likewise been declared unconstitutional, and therefore null and void. This includes Act XVL of 1973, which effectively removed the NBM's board of directors (its banking licence had already been suspended via Article 18 of the Malta Banking Act). Even without the recent ruling, the legality of this law has all along been questioned, with shareholders consistently claiming that government did not have the necessary 65% majority shareholding required to depose the former board of directors, as stipulated in the terms of its own law. Act XVL of 1973 was also the foundation stone upon which BOV was built. Effectively Thursday's ruling appears to confirm what the shareholders have been arguing for 40 years: that BOV in fact represents a case of stolen goods having been rebranded and resold. And considering the contribution made by this bank to Malta's economy in the decades following the establishment of the Maltese republic, there is a case to be made for the entire country to be considered an accessory to the crime. Compensation In view of all this, it is to say the least debatable whether the extent of the injustice suffered by the original owners can be rectified merely by paying out a lump sum. Questions must also be asked about the legal status of all that has since built from the wreckage of the National Bank of Malta. As Ganado implies, government still owns 25% of BOV (which, interestingly enough, claims on its own website to enjoy "180 years of banking history"… despite having officially been founded in 1974). What will happen to government's shareholding as a result of this ruling? And will the same ruling will have any impact on the value of all shares in BOV… as would almost certainly be the case with any other internationally listed bank? One possibility is provided for at law by article 1021 of the Civil Code, which states (rather bluntly) that, "A person who receives, whether knowingly or by mistake, a thing which is not due to him under any civil or natural obligation, shall be bound to restore it to the person from whom he has unduly received it." It remains to be seen whether the shareholders or their heirs will pursue this avenue in court. It also remains to be seen whether it is even possible for the NBM to be 'restored' to its original owners, given that its ownership is now widely distributed among the population. Jeremy Cassar Torregiani, greatgrandson of former NBM director Anthony Cassar Torregiani and a longtime campaigner for the disenfranchised NBM shareholders, acknowledges that redressing the injustice at this very late stage is not a straightforward matter. "While the more important ques- Anthony Cassar Torreggiani, one of the NBM founders tion has been answered, the practical dimension is still complex. What is adequate and fair compensation? The guiding principle behind expropriation should be that those who benefit from a project should bear its costs. This principle can be traced back to the Magna Carta, the Great Charter of Liberties, signed in 1215, that forbade the king's agents to take a man's timber or horses without his agreement, and provided for compensation in the event of expropriation. If the king benefited from a taking, the king would have to pay…" In this case, Cassar Torregiani suggests that just compensation would not only represent longoverdue justice for the shareholders, but would also finally put to rest an issue that has arguably damaged Malta's credibility as a country where the rule of law is paramount. "That the property, business the assets and liabilities of the national bank of Malta were expropriated in the public interest for no compensation is a fact," he said. "That the way in which it happened was wrong has also been confirmed in the judgment. What we now must wait to see is what method of compensation will be offered to the shareholders. Only in this way can we put the matter to rest and look forward to creating a better stronger Malta where the rule of law and civil fairness go beyond any prejudice." Other shareholders who pre- ferred not to be named likewise hinted that the issue is far from over. "There are some who feel that now we have waited so long, why bother trying to come to an out of court settlement?" one shareholder told this newspaper. "But until the shareholders have met to discuss the implications and reached a common front, it is too early to say what the next step shall be…" Ultimately, there are implications for others too… regardless of any connection with either the National Bank or the Bank of Valletta. By upholding Article 37 of the Constitution, Micallef's ruling also serves to protect property rights across the board from any present/future attempts at illegal acquisition. It seems strange that – until 9 January 2014, with Malta a full EU member state for 10 whole years – the Maltese Republic was simply incapable of providing any guarantee that privately held property could not be 'compulsorily taken possession of' by the government under circumstances that are tantamount to threats and duress. "We are only free if our neighbour is free also," Jeremy Cassar Torregiani observes. "If the freedom of my neighbour is threatened then so is my own by the same measure. So while this case means so much for the former shareholders in the National Bank of Malta, it means just as much for all Maltese as the way we treat each other is in the end the way we treat ourselves."