The Three Amigos Ride Again

The three Cabinet ministers with special involvement in the Vitals Global Healthcare (VGH) deal are once more appealing a magistrate’s decision to order an inquiry. The arguments in their appeal have implications that go far beyond this particular case. Here’s a paradox: if you believe the ministers are innocent, you have more reason to be furious at them than those convinced of their corruption.

For if you smell corruption, then you’ll think of the ministers’ resistance to legal scrutiny as a necessary charade. The Court appeal, to be heard by the sister of a Cabinet colleague, will not seem a dramatic duel out of The Good, the Bad and the Ugly. It will be straight farce out of The Three Amigos.

But suppose you’re a card-carrying disciple of rule of law democracy, who also believes in the ministers’ innocence. You’d be puzzled at why the ministers are resisting the inquiry requested by civil society organisation Repubblika. The ministers are using arguments so contorted that, if accepted, our legal system will be seriously damaged.

Remember, if innocent ministers accept an inquiry, all it would mean is that they would have independent verification of their innocence. Even if the inquiry concluded that there was a case to be answered, two further steps would still be needed. The Attorney General has to agree to prosecute. Then he’d have to prove the case in court. How could the innocent fear that?

Here, instead, the ministers are relying on a defence that provides grist to the mill of our judicial system’s international critics.

First, the ministers chose (since they knew the identity of the roster Judge) the sister of a Cabinet colleague as the Judge of their appeal. Beyond her judgment, there is no appeal.

Assume her judgment will be impeccable but in their favour. There will be plenty of room for reasonable people to believe that the judgment was influenced by partisan considerations. Those people will include the foreign observers expressing concern at how Judges are chosen under our current system – Judge Consuelo Scerri Herrera’s own promotion being often mentioned as cause of concern.

If you’re one of those people protesting against foreign interference in the set-up of our judicial system, the ministers’ decision should make you hopping mad. They’ve given more ammunition to the foreign critics, whose concerns continue to dog Malta’s reputation, including with investors.

Second, one of the ministers’ pillars of defence, this time around, is the importance that should be given to precedent. It’s the principle that a magistrate should have very important reasons to interpret a law differently from a decision by a higher court.

In this case, Magistrate Doreen Clarke has explicitly departed from Judge Giovanni Grixti’s interpretation of the law, given last month. Judge Grixti said the law requires civil society, when requesting an inquiry, to provide quasi-court-grade proof – a much higher standard than what is required of the police.

The ministers are insisting that Judge Grixti’s interpretation should be binding. But his interpretation flies against the lawmakers’ intentions. Those are clear in the debating record, and were recently reaffirmed by the former minister, Tonio Borg, who had co-piloted that bill.

Judge Grixti’s interpretation, if correct, would make the right given to civil society virtually useless. If civil society had the kind of proof he expects, there would be no need for an inquiry.

But if his interpretation is taken as a binding precedent, Judge Grixti will have virtually rewritten the law by hollowing out the very right the law was meant to grant.

The use of precedent is meant to make the law predictable for those thinking of seeking justice. Here, however, it’s been turned on its head. An unpredictable interpretation has been given, by a single Judge, who binds all others.

If this idea of binding precedent is accepted, we’ll have a system where the powerful can (knowing the roster) pick a judge to hear their appeal. That single Judge can interpret the law arbitrarily, without the possibility of further appeal. That decision binds all magistrates in future cases. The law will have been effectively re-written by one Judge.

The judiciary will have been politicised twice over. A broad licence for judicial activism would have been granted. Given the role of the powerful in choosing members of the Bench, and then the facility of picking the Judge to hear the appeal, there will be plenty of scope for judicial activism to blur into partisan activism. Or, at least, suspicion will spread wide among anyone we want to trust the system.

This case would have eroded not just one civic right granted by one law. It would have greatly expanded the scope of judicial arbitrariness, potentially at the service of political arbitrariness.

Any democrat should be furious. And the more you think the ministers don’t need to go down this path, the more livid you should be.