Silence: ‘The mobsters’ choice’

“You see, the mob takes the Fifth – if you’re innocent, why are you taking the Fifth Amendment?” Donald Trump said in April 2018.

The US constitution’s Fifth Amendment states that “no person shall be compelled in any criminal case to be a witness against himself”.  It’s the right against self-incrimination, often referred to as “the right to remain silent”.

That’s exactly what Karl Cini, of Egrant fame, did.  He remained silent. For 35 minutes, he faced a barrage of questions from Opposition MPs at the Parliamentary Public Accounts Committee.

For 35 minutes, he sat silent, opening his mouth only to repeat, “I exercise my right to remain silent”.  He even refused to confirm his role at the notorious Nexia BT.

Everybody knows Cini was a partner at Nexia BT. Replying to that question wouldn’t incriminate him. It wouldn’t add anything to knowledge of his direct involvement in the disgraced company. But Cini was intent on revealing nothing.

The right not to incriminate yourself is not the same as a right to silence at all times.  Cini’s lawyer, Stephen Tonna Lowell, stated at the start of the session: “My client will not exercise a right to not incriminate himself, but a right to silence”.

There is no such right.  Remaining silent may constitute incriminating evidence.

As Trump crudely put it, “you see, the mob takes the Fifth”.  The US Supreme Court, in its decision in Salinas vs Texas 570 US (2013), agreed that the police could offer a man’s silence as incriminating evidence – and that doing so didn’t violate his right against self-incrimination.

Several European jurisdictions allow judges to draw negative inferences from a refusal to answer questions.  The Dutch Supreme Court holds that judges may draw negative conclusions from an accused’s refusal to answer questions and that this may be interpreted as a deliberate attempt to mislead the court or to provide a false statement. It ruled that the court may take the suspect’s silence into account when the latter doesn’t give a reasonable explanation for actions.

England, Wales, Ireland, Australia, and Italy are all jurisdictions that allow the courts to draw negative inferences from a refusal to answer questions – especially when those questions are basic questions, such as your role at Nexia BT.

In Murray vs the UK, the European Court of Human Rights accepted that inferences can be drawn “in situations which clearly call for an explanation”. Such as, how 29 e-mails written by Karl Cini between January and August 2015 to Mossack Fonseca went missing.

The Egrant inquiry reported that the batch of Cini’s emails about setting up bank accounts for Keith Schembri’s and Konrad Mizzi’s secret Panama companies could not be traced by forensic experts Harbinson Forensics.

Those “gaps” were flagged because their disappearance was highly suspicious. They related to Cini’s attempts to set up bank accounts “in various banks in various jurisdictions – specifically Dubai”.

The inquiry concluded that this “may indicate that Mr Cini may have wished to delete any reference to Dubai bank accounts in connection with Dr Mizzi and Mr Schembri”.

May have wished?  The evidence suggests that Cini didn’t just wish – he deleted them. Cini was specifically asked about this by The Times of Malta.  He refused to answer.

Cini must accept that remaining silent draws adverse inferences.  Cini may choose to remain silent – but it means nobody believes him.

Even the Egrant magistrate does not believe him.  Magistrate Aaron Bugeja was so convinced that Cini was lying that he recommended that Cini be criminally investigated for perjury.

The Egrant inquiry was concluded over five years ago.  No action has been taken against Cini. And no action will be taken because those crimes are now time-barred.  The police protected Cini for years – for good reason.

Cini was the author of that famous Egrant email to Mossack Fonseca saying the individual owning the Panama company was far too important to be mentioned in an email – more important than Schembri and Mizzi.  Cini would only give Mossack Fonseca the name of Egrant’s owner when he would “speak to Luis Quiel on Skype to give him more details”.

Cini knows exactly who Egrant’s owner is. That explains why he must remain silent. It explains why he’s terrified of even admitting to having been part of Nexia BT. It explains why the magistrate’s decision that Cini should face criminal investigation was defied.

Cini is charged with corruption, giving false statements in court, making false declarations to officials, forgery and money laundering. Those charges are a direct result of a magisterial inquiry triggered by then Opposition leader Simon Busuttil who presented overwhelming evidence of money laundering involving Cini, Schembri and Brian Tonna.

Then-prime minister Joseph Muscat had mocked Busuttil and his “boxes”, saying Busuttil was wasting the magistrate’s time because those boxes were “empty”. It turns out those boxes weren’t empty. What is empty is Cini’s answers at the Public Accounts Committee and Muscat’s bluff.

And we haven’t even scratched the surface.  An inquiry into the Panama Papers and 17-Black is still ongoing. Cini’s court case drags on more than two years after he was charged.  Meanwhile, he remains on bail on a deposit of €60,000 and a personal guarantee of €90,000. He is obliged to sign the bail book daily and cannot travel overseas.

His accountancy warrant was suspended in 2020. He’s recently been struck off the MFSA register and declared “not fit or proper” for any financial services position.

And yet Glenn Bedingfield shamelessly defended this man at the Public Accounts Committee hearing.  Instead of asking Cini the burning questions the country needs to be answered, Bedingfield objected to Opposition MPs’ question about Nexia BT’s dealing with Mossack Fonseca, insisting it was “out of order”.

Bedingfield is still trying to silence the truth about Joseph Muscat, Konrad Mizzi and Keith Schembri. Bedingfield is still doing Labour’s dirty work – concealing the obscene truth about Muscat’s rancid roadmap.

“The mob takes the Fifth”. For once, Trump was right.