Whistleblowers still unprotected

The Whistleblower’s Act has been in force since 2013, yet Malta still seems to lack certain basic procedures to ensure that persons reporting crimes are not harassed or victimised for their efforts.

The recent scandal regarding corrupt practices in the procurement of fuel by Enemalta is a classic case in point. In January 2013, MaltaToday published emails which revealed a network of kick-backs and commissions paid to oil companies to secure oil contracts. Initially, what led to the revelation of this scandal was a cache of emails tabled as evidence in a court case between George Farrugia, the middleman in the bribery scandal, and John’s Garage (the Farrugia family business). 

An attempt had been made to forward these emails to Lawrence Gonzi as Prime Minister in 2012 – some months before becoming public knowledge – but while there was a tax compliance unit investigation, no criminal investigation was carried out.

Indeed the matter was only investigated by the police after our story appeared in January 2013: and for a while the investigation centred on efforts to get this newspaper to reveal its sources, in flagrant defiance of the most basic principles of the free press in any democracy.  

When enough evidence emerged to warrant criminal action against the officials involved, the Prime Minister decided to offer George Farrugia a Presidential pardon in exchange for incriminating information. It remains debatable why such protection was offered to someone who cannot, by definition, be described as the ‘whistleblower’ in this case. 

It is even more anomalous that, while Farrugia now enjoys full immunity from prosecution (despite having admitted to his involvement in this bribery network), among those facing prosecution are the Farrugia brothers who first lifted the lid on this scandal by depositing the incriminating emails in the public domain.

This latter arrest took place well after the Whistleblower’s Act came into force in September 2013. Technically, this law should provide protection for persons coming forward with information about corruption… and even if their role in the revelation of the case had been (so to speak) accidental, the Farrugia brothers clearly were much more instrumental in bringing the case to light than the man who is now immune from all prosecution.

This sets a dangerous precedent, which runs directly counter to the declared intention of the Whistleblower’s Act. The idea behind this law was to encourage people to reveal corruption without fear of recrimination. In practice, however, the oil scandal investigation has sent out the clean opposite message. It is people who make such cases public who have more to fear from the authorities than the people they incriminate.

Even without this reversal of roles, it remains a fact that the Whistleblower’s Act, in itself, cannot satisfactorily address cases such as this. Article 5(4) of this act does give the Attorney General the option to exempt a whistleblower from criminal proceedings, after having consulted with the Commissioner of Police and a judge of the Superior Courts who does not determine criminal trials. However, the definitions of ‘whistleblower’ are restricted only to employees within a company or entity within which the improper conduct was reported. 

Already the scope of application of this law is limited (and would de facto exclude the oil scandal, or any comparable scenario). To compound matters, there are also a number of exemptions which include the Armed Forces of Malta, the Police Force, the Department of Civil Protection Personnel, the Corradino Correctional Facility officers and the Foreign Office.

Given these restrictions, it is debatable how effective such a law would be to facilitate the revelation of corruption. Certainly until going to print it has never been applied. Instead, the preferred approach to date has involved a Presidential pardon recommended by the Prime Minister. But it is by no means an ideal solution, as the involvement of the Prime Minister invariably introduces a political dimension which skews perceptions of the case. Besides, the legal parameters surrounding this option remain woefully unclear. 

Both shortcomings had already been exposed by the infamous Zeppi l-Hafi affair in the 1990s. Joseph Fenech (aka Zeppi l-Hafi) had been implicated in the attempted murder of the Prime Minister’s personal assistant, Richard Cachia Caruana. In turn, he implicated convicted drug trafficker Meinrad Calleja, and was given a pardon in exchange for testimony against Calleja in court. 

Fenech’s version was however rejected by the court, with the result that the case remains technically unsolved to this day.

Yet all along there has been another unexplored option. The Permanent Commission Against Corruption, established in 1988, also has the power to grant limited immunity in such cases. 

Article 19 of the PCAC act empowers the Attorney General to grant exemption from criminal proceedings to witnesses. However, this power has not been invoked once in the 27 years since the inception of this commission. Meanwhile it is unclear whether the PCAC itself is still functional. No new cases are understood to have been brought before it recently… even though there have been plenty of corruption allegations to investigate.

This leaves us in exactly the same situation that the Whistleblower’s Act was supposed to address: a situation whereby the law offers no protection at all for whistleblowers, while providing full immunity for the guilty. The anomalies gain in significance with the latest reporting by MaltaToday concerning a whistleblower in Gozo who has revealed an alleged case of corruption involving the husband of the former Minister for Gozo, Giovanna Debono.