Today’s guest post is by the Daphne Caruana Galizia Foundation. Established following the assassination of Maltese anticorruption journalist Daphne Caruana Galizia, the foundation seeks to ensure full justice for Daphne’s murder, advance her work, support and protect investigative journalists, and promote public interest litigation. It coordinates the Coalition Against SLAPPs in Europe (CASE), administers the Public Interest Legal Network (PILN), is a Transparency International chapter-in-formation, a partner of OCCRP, and a member of the UNCAC Coalition.

Here on the little Mediterranean island of Malta, located just south of Sicily, news of a Department of Justice investigation into Texas-based Steward Healthcare was met with a collective sigh of relief – “the Americans will help to get it done” – some thought to themselves. “It” in this case refers to the act of achieving accountability for one of the biggest corruption scandals to rock the country.

The scandal centers around Steward’s takeover of a fraudulent concession to develop and manage three of Malta’s public hospitals. The hospitals were left in a state of disrepair and under-resourced, as public funds intended for their development and upkeep by-passed them almost completely, landing instead inside the pockets of a well-positioned few through a carefully organized international network of consultancy agreements and intermediaries. In Malta, these few allegedly included Maltese former Prime Minister Joseph Muscat, Minister Konrad Mizzi, and Chief of Staff Keith Schembri. In the US, Steward executives allegedly     did their best to collect all they could of the money hemorrhaging from the concession.

So what did Maltese citizens hope the result of the Department’s FCPA investigation would be?

For one, at the very least Steward executives – like now disgraced Steward CEO Ralph de la Torre who spent millions of dollars on luxury properties and holidays as Steward hospitals around the world went bust – would not be able to sail their yachts off into the sunset free from responsibility for the harm their actions caused. The hope was that they would in some way be held accountable. Either directly: for cases such as the avoidable death of a mother following the birth of her first child in Boston’s St. Elizabeth’s Medical Center (here) and the untimely death of the mentally ill young man who died of heart failure while he was left alone under restraint due to understaffing at Carney Hospital in Dorchester (here). Or at least indirectly for their alleged role in the corruption of Maltese public officials in relation to the hospital deal.

There was also the hope that prosecutions in the US would smooth the path for the prosecution of Maltese beneficiaries of the fraudulent scheme. At the time of this writing, criminal proceedings in Malta against Muscat, Mizzi and Schembri are ongoing. The truth is that there is an overwhelming amount of evidence against the people who helped pillage Malta’s healthcare system. The hospital deal itself was declared invalid by Malta’s court of first instance on the grounds that it was tainted by fraud at all stages (here). Affirming the lower court’s decision, the appeals court declared that there had been collusion between Steward and Maltese government officials (here).

More evidence of wrongdoing is contained in a three-volume report published by Malta’s National Audit Office (here, here, and here). It found that fraud and collusion were rife throughout the deal and calculated that the public monies sunk into the concession ran to some 400 million euros. An independent Magistrate’s court tasked with conducting an inquiry into the deal produced a damning 1000-page report implicating dozens of individuals, including Muscat, Mizzi, and Schembri – the now infamous trio – and other former ministers and officials (here).

With a nod of Trump’s head, FCPA enforcement has been paused, and these hopes trashed. Yes, there is still the Maltese justice system, but its prosecution service is undeniably under-resourced and is up against a ruthless defense and a powerful support network.  Furthermore, the national judicial system makes for very rough terrain on which to fight the good fight.

First, justice in Malta is very slow when done at all. The defense has already attempted to weaken the prosecution’s case through the use of unorthodox tactics. One striking example of the latter is a direct verbal attack by the current Prime Minister Robert Abela (Muscat’s successor) on the magistrate who conducted the inquiry, positioning her as a member of an imaginary so-called ‘establishment’ set on undermining the government.

A regularly employed tactic of the defense, which we have seen play out in various criminal cases, is to make use of every available legal avenue to delay proceedings, effectively weakening the prosecution’s case through the erosion of evidence and of the credibility of witnesses over time.

With a head of government who has openly defended some of the accused, who has gone so far as to call into question the independence of the judiciary in its investigation of their suspected wrongdoing, and with a playing field significantly tilted in the defense’s favor, one cannot fault us for being rather cautious in our optimism.

In Malta we have a saying ‘iz-żejt dejjem jitla f’wiċċ l-ilma’ (oil always rises to the surface) – meaning that the truth will always come out. In the present case, the truth of what happened behind the scenes of the hospital deal has, thanks to the work of a brave few, begun to be uncovered. This is far from the end of the road, however. It does not necessarily follow that justice will be done, and so the fight must go on until those responsible for, and who illicitly profited from, the fraudulent deal are held to full account.

Corruption fighters in Malta have held America in high esteem for its vigorous enforcement of the FCPA and in particular how that enforcement has helped root out corruption in countries with weak institutional checks and balances on governmental power. In her review of FCPA enforcement we hope Attorney General Bondi will recognize the goodwill this has generated around the globe and conclude that American interests are best served by continued robust enforcement of the act.