Despite my very strong disagreement with Judge Edwina Grima’s fiery response to the leaks of Yorgen Fenech’s chats, the Judge has strongly criticised the government’s new Anti-Money Laundering law. The new reforms, approved earlier this year with the support of high-profile Nationalist Party MPs, including Joe Giglio, have disarmed the authorities’ powers in arraigning and freezing the assets of money-laundering suspects.
Among the reforms include that the authorities can only seize the specificed amount that has been laundered with the burden of proof falling on the prosecution which leads the case in court. This is anomalous to anti-money laundering legislation, which most often than not, places the onus of proof on the defendant. It is also a well established and standard practice in banking and finance that the client would provide their source of funds and this is consistent with the principle that the defendant in court has to provide proof of their source of funds.
The law has been specifically designed and implemented to cover-up and abet political criminals and lawyers who have a history of laundering criminal proceeds. The government has promoted this law as something that will protect small businesses, against the over zealousness of the authorities, but this is misleading. The law will help organised criminals like Yorgen Fenech and soon to be arraigned Joseph Muscat.
Slowly, the judiciary is coming out against the law. As of recently, the latest member of the judiciary who expressed strong criticism about the new law is Magistrate Leonard Caruana. This is more significant than Judge Edwina’s criticism because Magistrate Leonard Caruana is currently, presiding over the financial crimes court after having replaced Magistrate Donatella Frendo Dimech.
In most cases, when the judiciary expresses strong criticism of a particular law, the legislator listens very carefully. The judiciary in Malta have been traditionally an important mediating institution to the legislative excesses of the legislator because historically they have always reserved their criticism on anomalies of legislative and administrative matters that seemed fundamental on a technical level. Cases where the judiciary expressed criticism was for example with the collapse of rule of law in 2019, and alternately, with the excess number of drug-users being sent to prison with historical anti-drug laws that were very harsh. The members of the judiciary like Magistrate Joe Mifsud, who used their role and position to promote their version of morality and politics, irrespective of the law, have been the exception.
The fact that the Magistrate presiding over the financial crimes court is expressing strong criticism against the government’s Anti-Money Laundering law is very significant, and in a liberal-democracy, if the institutions are functioning right, this disagreement will lead to a dialectical or meditative process that will eventually resolve itself either for good or for worse. The reality is however, that there are too many relevant individuals within the authorities who disagree with the law, and unfortunately, they could not express themselves publicly with their superiors following the interests of the Labour government. Given that we are in a situation where the judiciary and relevant members of the authorities are against this law, any law-abiding government would eventually give weight to their professional advice and address their concerns accordingly.
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