Saturday, 27 May 2017

Upholding the rule of law

Image result for rule of lawNow that I made it public that I will be relinquishing my post of Deputy Governor of the Central Bank of Malta as of 30th June 2017, I feel a bit freer to start commenting on current affairs.

I look forward to the period post June 2017 when I will be able to explain in more detail  what led me to give up my 5 year appointment after just 2 years.   But these are pleasures yet to come as the truth is that persons holding positions with security of tenure, like the judiciary, the Attorney General and Governors of the Central Bank, are disadvantaged when they are criticised on a personal basis, especially when such criticism is part of the political crossfire. Respect to the Organisation they represent,  holds them back from properly defending themselves in order not to carry the Organisation itself in the political crossfire.

Democracies are built on the rule of law.   These are rules that apply to one and all, government, opposition, civil society and ordinary citizens. Upholding the rule of law is particularly important during an election campaign when the executive is in a holdover caretaker role and the prospect of alternation of power through the voting process becomes a real possibility.

The rule of law depends on those charged with upholding being allowed to operate autonomously and respectfully.   Amongst the organisations that upholds the rule of law are the judiciary, the FIAU (Financial Intelligence Analysis Unit) and the Police authorities.

It is very regretful to note that during this election campaign and the weeks leading to it,  all these organisations where not allowed to operate with the tranquillity they need and deserve in order to execute their duties to uphold the rule of law.  

The Police were consistently criticised by the Opposition for purportedly not fulfilling their duties of properly investigating the cases flagged to them by the FIAU involving key government executives.   Police investigations require time.  Whilst the FIAU trades in suspicions the Police can only charge people based on hard evidence that can stand up in a court of law.   This needs time.   There are cases involving prominent Opposition executives who are also being investigated by Police following suspicions raised by the FIAU.   Even in these cases, which would play well in favour of the government, the Police have not yet pressed charges even though the evidence is relatively straight forward according to an investigative report filed by three appointed judges.

Can the police perform properly if they are continuously criticised rather than allowed space to execute properly?   As the law stands, a new government has right to fire and replace the Police Commissioner.   This is not a desirable practice and hopefully it will be changed,  but that's how presently it is.  But what sense does it make to continually threaten the Police Commissioner with dismissal and still expect him to perform professionally?   This practice is also unfair to an incoming Commissioner as the implication would be that such Commissioner is expected to be loyal to the executive not to their responsibilities.

The FIAU can only function properly if its reports are treated with utmost secrecy as provided in its law.   Anyone breaking such secrecy rules is subject to criminal penalties including fines and imprisonment. Unless this rule of law is respected the FIAU cannot function.   The FIAU depends on suspicious transaction reports it receives from the licensed institutions and other obliged entities. These reports are submitted on the strict understanding that such reports stay secret.   But if through internal sabotage the FIAU leaks information like a bullet holed water tank, how can the operatives have confidence to continue submitting suspicious transaction reports? Anyone who aides and abets in breaking the secrecy needed by FIAU operations, is actively defying an important aspect of the rule of law.

The judiciary must be allowed to operate without pressure.   It was wrong for the Prime Minister to hold the Magistrate responsible for consequences that may result from not concluding his enquiries before the elections.   If anything such responsibilities are to be carried by the Leader of the Opposition who made the allegations and by the Prime Minister who called early elections.  I believe it was a slip of the tongue as it goes against many other statements made by the Prime Minister respecting the independence of the judiciary .  But it is equally condemnable  when the Magistrate is held responsible if he does not find evidence that the Prime Minister is guilty.

The paladins who pretend to be on the forefront of upholding the rule of law do so by actively breaking it.   The Chamber of Advocates only find their voice to criticise the Prime Minister.   Ex Chief Justice Said Pullicino finds courage to condemn the 'tibna' in Labour's camp and ignores the 'travu' of the PN.

The rule of law is being undermined by those who preach the need to uphold it.

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