WATCH | Emmanuel Mallia interviewed. An analysis of the Whistleblower's Act

Lawyer Emmanuel Mallia analyses the Whistleblower's Act from maltatoday on Vimeo.

When Prime Minister Lawrence Gonzi addressed the media at Castille some three weeks ago and launched the Whistleblower’s Act, he described it as an “act of courage” stressing that his government was sending a “clear message” to all that it is committed to “greater transparency and good governance.”

But prominent criminal lawyer Emmanuel Mallia begs to differ on this statement, as talk about introducing this law in Malta has been ongoing for years, and the country is “simply following what has been legislated in Europe and beyond years ago.”

He adds that if taken in the context of ‘courage’ to counter corruption, “then that is not courage, but the sacrosanct duty of any legislator.”

Emmanuel Mallia is probably the first to technically react to the bill, and since last Thursday, when an extract from his interview was screened on www.MaltaToday.com.mt,  he triggered a national debate to the extent that he swiftly engaged home affairs minister Carm Mifsud Bonnici to react.

Frankly, both men set the scene for an interesting debate, as they both seem to be right in their positions. Both are lawyers, but interestingly enough they have dug in their heels to protect their own interests at law.

Emmanuel Mallia explained that when he first heard the news that a  Whistleblower’s Act had been launched, he welcomed the bill as for, “the first time ever, Malta was recognising the principle of granting protection to whoever comes forward to reveal truthful information, while also obliging those who receive it the obligation of protecting identities.”

He went on to say that when closely examined, the draft bill exposes problems that need to be addressed through amendments by legislators when debating the law.

“I feel that when talking about whistleblowing, legislators must always consider  that whoever wants to come forward and reveal information, will in most cases be in a state of fear and anxiety.

“The fundamental scope of such legislation is not just to uncover petty crimes or instances of wrongdoings within the Civil Service or in the private sector, but to uncover serious crime, especially cases of corruption,” Mallia explains.

“The principle here is woven into the English proverb of ‘setting a thief to catch a thief’ but frankly this bill defies all logic and prevents anything of the sort to happen.”

“Common sense dictates that who is innocent and doesn’t involve himself in corruption, would have limited details of a case, and that limited info would never make it to any court,” Mallia says, adding that in reality, it is who is directly involved in an act of corruption would know the details that could lead to definite prosecution.

“So here we have a bill where if the whistleblower is an accomplice or perpetrator of a crime, he does not enjoy any immunity with the law and will be prosecuted.”

He insists that the draft law “scares, rather than encourages” anybody who wants to come forward and reveal serious cases of corruption.

Mallia questions the contradiction where  ‘exemption’ from court sentencing already exists in the Criminal Code, explaining that where match fixing is concerned during football matches, the  Criminal Code says that should an involved party reveal, cases of attempted or proven cases of game fixing, before the initiation of any investigation, that person may be exempt from conviction.

“So here we have a clear case where technically a player may be guilty of a crme, but is not punishable given that he revealed it before it was actually investigated.”

Also to be noted is that the Law establishing the Permanent Commission Against Corruption grants a ‘special power’ to the Attorney General, that is almost similar to a Presidential Pardon.

“It says that the AG can issue a certificate by which he would exempt persons from criminal prosecution, on condition that they truthfully testify on acts of corruption or any other related crime under investigation by the same Commission.”

But the Whistleblower’s Act offers nothing of the sort. Instead – Mallia argues – “the bill shoots the messenger,” adding that this scenario defeats the bill’s own purpose.

“How can you expect somebody who is in the know of a serious crime or an act of corruption to come forward when he knows that he will be convicted just the same?” Mallia asked.

It was here that minister Carm Mifsud Bonnici intervened and responded to Emmanuel Mallia’s analysis, stressing that the Whistleblower’s Act is “no washing machine for crime.”

According to Mifsud Bonnici, “it would be a grave political mistake” to grant a legal tool with which any guilty party could easily “wash his hands from guilt.”

“No person who commits a serious crime, such as an act of corruption, could expect to grant himself a form of Presidential pardon by invoking the Whistleblower’s Act.”

Carm Mifsud Bonnici said that “legislation such as the Whistleblower’s Act is intended to reduce crime, and definitely not intended to be a motivation for criminals… God forbid we legislate in favour of any partner in crime or kingpin to get away with murder.”

But Emmanuel Mallia is tenacious in his position, and digs in to the details of various sections of the draft law.

He discovers that whoever comes forward within a company, the civil service or any organisation and reveals any wrongdoing, the officer receiving such information is on the one hand obliged to secure confidentiality of the source, but later is also given the vague ‘discretionary power’ to consider the necessity to keep the identity of the source confidential.

It gets worse, because when the draft bill goes on to explain the next step following the officer’s receipt of such information, is suddenly deems it necessary for the police to know the source, as it would be “essential to protect the principle of natural justice” for prosecutors to hear “both sides of the story.”

“Now you come to tell me who in his sane mind would ever dream of coming forward with information, when it would be blatantly obvious that he would be facing a backlash?” Mallia asks.

Questioned by MaltaToday during the press conference at Castille, the Prime Minister insisted that the law will be retroactive, insisting that his government has “absolutely nothing to hide.”

I asked Emmanuel Mallia for his interpretation of “retroactive” as it is written in the Whistleblower’s Act.

“My interpretation of what is said here (the bill), is that criminal activity would have happened before the enactment of the law, but could not be invoked if still ongoing, but the principle here is that the law applies only for the revealing of information after the enactment of this law.”

“It is true there are the words ‘if’ and ‘or’ but still, I am not entirely convinced, because it is vaguely written and any interpretation could be given,” he replied.

So in a nutshell, does this Whistleblower’s Act really offer the right protection to who has information to reveal?

“If you are an accomplice or perpetrator, this law doesn’t protect you at all.

You can pass on the information, but the law says that it does not mean that you are exempt from prosecution and conviction. You definitely have no immunity, thus defeating the scope of encouraging any person in the know of a crime to come forward.”

Emmanuel Mallia goes on to challenge legislators: “if you legislated and granted immunity to who footballers who reveal cases of match fixing, you should be prepared to protect whistleblower’s especially when cases of corruption are revealed.

Another issue worth noting in the draft is that whoever comes forward with information must be a ‘bona fide’ person, and must assume all the responsabilities as a person who is revealing information that could lead to the prosecution of third parties.

“The draft imposes on the person who comes forward the risk of having to face prosecution for false reporting if what he says cannot be proved,” Mallia adds.

But Emmanuel Mallia stresses that now that a Whistleblower’s Act has been proposed, it would be “useful” should government also propose in parallel a serious law introducing the principle of party financing.

This has been recommended by the GRECO (Council of Europe States Against Corruption) of which Malta has been a member since 2001.

“Apart from this I have always believed that political parties should not receive thousands of euro’s from companies and fuel the possibility of preferences in contract awarding, or even fuel the perception of corruption.”

Also in parallel to the Whistleblower’s Act, Emmanuel Mallia suggests legislating on conflicts of interest.

“We cannot have any more situations where people who occupied sensitive governmental positions, suddenly find themselves in the employ of private companies who would certainly benefit from that imported knowledge,” he adds.

“We must ensure that conflicts of interest do not continue to sink deeper into the way we do things in this country,” he added.

In conclusion, I shift the subject of the interview to another draft bill launched by the Prime Minister, regarding amendments to the Permanent Commission Against Corruption.

Emmanuel Mallia is in perfect agreement with government to propose the appointment of the Commission’s Chairman by a two-third’s majority vote in the House.

“But for Malta’s reality, it would see it much better to have all three members who sit on the Commission to be appointed the same way. Like that all would enjoy the trust and respect of both sides of the political divide.”

And for the proposed investigator within the Commission?

“It’s a great idea, the position was more than needed to assist the Commission, and what is interesting is that the investigator will be vested with certain powers that would see him as the referral point with the Commissioner of Police, and also as a prosecutor in certain cases.”