[ANALYSIS] Begging your (presidential) pardon…

Casual observers of the ongoing oil corruption scandal will no doubt have noticed a number of peculiar contradictions and U-turns by a few of the major protagonists involved.

Within days of the original revelations two Sundays ago, Prime Minister Lawrence Gonzi announced that he would 'guarantee' a Presidential pardon ('proklama') to anyone who stepped forward with further evidence in this case.

The police initially objected, arguing that they already had all the evidence they needed to proceed against the main suspects. But they would change tack within just a few days, withdrawing their objection soon after a formal request made by one of the suspects involved in the scandal: George Farrugia, whose email correspondence with Trafigura forms part of the body of evidence pointing towards wrongdoing in this case.

It may of course be just a coincidence, but Farrugia's lawyer turned out to be none other than Franco Debono - the disgraced government MP who has been hinting darkly at corruption at the highest levels of Cabinet for over a year.

All this must be viewed against the backdrop of another apparent volte-face. Since the 2008 election, an electoral promise to implement a whistleblower's act has never quite seen the light of day... even though the law itself has already passed through all but the final phases of parliamentary approval.

Admittedly, the two legal instruments are by no means identical: but this has never quite deterred the prime minister from talking about them for all the world as if they were interchangeable.

For instance: when the family of Nicholas Azzopardi (who claimed police brutality on his deathbed in 2007) urged government to enact a Whistleblower's Act to offer protection to police sources willing to come forward with intelligence about the case, Gonzi's response was to declare that there was no need for a whistleblower's act as he had offered a pardon instead.

Yet in that case, nobody stood accused of foul play: which technically means that there was nothing in the way of an established crime to actually pardon.

Moreover, by consistently offering pardons when he should really have offered whistleblower protection - and in this case in particular, by pre-emptively offering the pardon even before there was any formal request for one - the Prime Minister has arguably engineered a situation whereby the granting of a pardon became an inevitability.

All this naturally raises the question of why the Prime Minister felt that a pardon was absolutely necessary in this case... even at a time when the police force argued that it was not.

When is a pardon not a pardon?

In cases such as these, Presidential pardons are granted only to people who are already charged (or about to be charged) with a crime, but who are willing to spill the beans on the involvement of other individuals who would otherwise slip through the net of justice.

[Note: There is another much more common parameter whereby pardons may be granted: that is, to a convicted criminal on grounds of clemency. This type of pardon is however not applicable in this scenario.] 

Presidential pardons are therefore distinct from the concept of a whistleblower's act in one very crucial detail - most whistleblowers are actually uninvolved spectators of corruption; usually employees of a company/government department (or comparable entity) who report wrongdoing by their colleagues and/or superiors.

Famous international examples include Mordechai Vanunu - the Israeli nuclear power plant engineer who exposed a secret facility for the production of nuclear weapons in the 1980s. Another case (made into a classic movie starring Al Pacino) was that of Frank Serpico, a New York police officer who had lifted the lid on police corruption in 1971.

Applied to the ongoing oil scandal, the only 'whistleblower' involved was arguably this newspaper, which broke the news (complete with copies of invoices, etc) that commissions had been paid on oil transactions. This technically means that even if the Whistleblower's Act were already in force, it would simply have no direct bearing on this case at all.

This does not mean, however, that no other comparable articles of law can be invoked instead of a pardon. Curiously, a law that has existed since 1987 seems at a glance to be tailor-made for this sort of circumstance: and unlike the thorny issue of a pardon, which can only be issued on recommendation of Cabinet (a fact which creates uncomfortable political implications, as outlined below), this particular law would exclude the entire political class from the actual decision-making process.

The law in question is the Act that established the Permanent Commission Against Corruption in 1987: i.e., Chapter 22 of the Laws of Malta.

I quote from Article 19: "Subject to the provisions of this article, the Attorney General may, if in his individual judgment he is satisfied of the advisability so to do, issue a certificate in writing exempting any person mentioned therein from any criminal proceedings on condition that such person gives evidence according to law of all the facts known to him relating to any corrupt practice or any offence connected therewith before the Commission and, or, any court of criminal jurisdiction, and on the issue of such certificate and the giving evidence in accordance therewith by the person to whom it refers, no proceedings before a court of criminal jurisdiction may be taken or continued against him in connection with such corrupt practice or any offence connected therewith..."

Strangely, this article does not seem to have ever been applied in any comparable case, even though there have been several instances - some more controversial than others - when the Presidential pardon mechanism was invoked instead.

This latest case is a classic example, and underscores existing queries surrounding the decision to go specifically for a pardon, when an apolitical alternative existed all along.

Given that the above article that would have kept the prime minister and his Cabinet at an arm's length from the issue, one can only wonder why the same prime minister insisted on involving himself in a decision which - in part thanks to the inauspicious timing - can only entail a perilous political minefield.

'Political hierarchy'

Now that the decision has been taken, what remains to be seen is what new evidence Farrugia will bring to the table in exchange for immunity from prosecution.

By requesting a pardon, he has already signalled his intention to implicate other suspects who have not as yet been publicly associated with the affair. The obvious question on everybody's lips is: who, exactly, will George Farrugia incriminate?

Naturally we don't know as yet... but even from a distance one can appreciate the extreme political sensitivity of the possible answers.

At a glance, it is debatable whether even Gonzi himself knows whose head he might end up affixing to the battlements as a result of this pardon. But during a radio interview yesterday morning, he appeared to fleetingly hint that the resulting revelations may well explode in the Labour Party's face.

"The Labour Party's theatrics will soon be exposed. The curtains are falling down and balloons are bursting because of the things that happened and other things which are happening. Keep your eyes open for what is going on."

Perhaps unsurprisingly, rumours are already in circulation that a high-ranking Labour official may be named in the investigation - though it must be said that no concrete evidence has so far accompanied these backroom whispers... and the same sources currently spinning these rumours are not exactly the most reliable the country has to offer.

But there are other indications (equally unsubstantiated) that it may just as well work the other way round: starting with the role now being played by Franco Debono himself, who (let's face it) is unlikely to take a lead role in a legal initiative if it will also contradict his own repeated claims of an administration mired in corruption at all levels.

According to this alternative hypothesis, Farrugia intends to implicate someone 'higher up the political hierarchy' (to quote the notorious BWSC email that now assumes so much additional meaning). The possible repercussion of such a revelation would be awkward enough at the best of times. But halfway through an election campaign in which the polls already see the PN trailing Labour by a wide margin, the implications suddenly appear explosive.

Either way, the case has once again shone a spotlight on clear and present flaws in the legal mechanisms whereby such matters are decided in the first place.

Leaving aside the sustained disregard for Article 22 of the Laws of Malta since 1987, there are already a number of well-documented problems with the law governing Presidential pardons in this country. 

As the law stands today, such matters are officiated by the Prime Minister in consultation with Cabinet: a state of affairs that has already been called into question by Opposition leader Joseph Muscat. 

Reiterating a call for a whistleblowers' act (though again, it remains unclear how such legislation would apply to this case) Muscat yesterday pointed towards a possible conflict of interest whereby politicians take decisions that will ultimately affect themselves or their allies.

"Such cases cannot remain dependent on pardons given by the politicians," the PL leader said yesterday. "What if a politician is involved? This is the point which is concerning me and people."

Nor was this the first time that the issue of a Presidential pardon has been besmirched with allegations of hidden agendas.

Gonzi's dilemma is in fact but one in a string of similar (though not identical) scenarios that have plagued past administrations of government.

Two high profile controversies involving Presidential pardons immediately spring to mind: both having in their time served to raise very serious questions regarding exactly when, how and under what conditions or circumstances such measures should be pursued.

Unresolved controversies

The first case was the Presidential pardon granted to Joseph Fenech (aka Zeppi l-Hafi), in return for evidence implicating Meinrad Calleja in the attempted assassination of Richard Cachia Caruana in the early 1990s.

What made this case controversial was the involvement of the Prime Minister of the day in various aspects of the police investigation. Eddie Fenech Adami at one point seemed to assume direct responsibility for part of this investigation himself - for instance, by meeting with the chief suspect in private, and apparently negotiating the terms of the pardon himself.

Apart from being absolved of all charges connected to the attempted assassination, Joseph Fenech also acquired immunity from prosecution for other aggravated crimes: including armed robbery and drug trafficking.

To exacerbate matters further, the Law Courts went on to disregard Fenech's testimony altogether and acquit Calleja: throwing the Prime Minister's involvement in the whole case into disarray, and also raising questions about the 'conditions' that had been tied to the pardon (incidentally, these are the same conditions that are now attached to the pardon offered to Farrugia yesterday).

Fenech's pardons were 'conditional' on the truthfulness of his testimony. Yet they were retained in full, even after the same testimony had been rejected by the courts.

George Farrugia's pardon is likewise conditional on the truth of his own testimony... but despite the recent Zeppi l-Hafi experience, there has been no attempt to address the grey area of what may or may not happen in the case that his testimony is discredited. Effectively, all the questions that were unanswered in the Meinrad Calleja prosecution, remain just as unanswered today.

The second case was not as immediately problematic, even though its immediate aftermath was arguably more serious... having resulted in the lightning resignation of a Cabinet minister (back then, a rather unheard-of eventuality).

The case involved a Presidential pardon granted to a convicted drug trafficker in 1997, against the apparent wishes of Prime Minister Alfred Sant (very soon after the latter had made so much political mileage from the Zeppi l-Hafi affair).

The result was the resignation of justice minister Charles Mangion, and the revocation of the pardon in question. But like Fenech Adami before him, Alfred Sant left the issue of regulating the mechanics of such pardons to succeeding governments: though whether he did his deliberately, or was simply overtaken by the crisis which plagued his administration that same year, will have to remain a historical question mark.

Ultimately it seems that the experience of two botched Presidential pardons was simply not enough to impress upon the present government the need to reform this aspect of the Criminal Code.

As a result, the legal scenario remains exactly the same today as it was in both 1994 and 1997, with one difference.

Today, these questions loom large on the horizon just weeks away from a general election which has already been coloured by the same scandal in question. We may therefore be on the threshold of yet another high-octane political clash in which the instruments of law find themselves wielded almost as weapons in the thick of an electoral campaign.