Naming and shaming | Carm Mifsud Bonnici

There’s much talk on Malta’s judicial system since Darren Debono, charged with the attempted heist on HSBC, was released on bail only for him to commit yet another hold-up. Public outrage seems justified. As it tends to be in cases where individuals found guilty of the corruption of minors are dealt with leniently with suspended sentences.

The government’s response has been a sex offenders register, but not everybody is happy with certain finer points. Hardest to swallow is how access to the register will be limited to organisations that deal with childcare or education – a decision government defended by saying the bill attempts to strike a balance between safeguarding children’s interests and avoiding the register deteriorating into ‘witch-hunts’ through unrestricted access.

However the register includes no safeguards to ensure that those who do access it are bound by confidentiality clauses – meaning that information retrieved can be freely distributed and published.

Asked if this is running counter to the government’s ‘cautious’ and ‘non-persecutory’ position, Justice and Home Affairs minister Carm Mifsud Bonnici explains that one way the act regulates what information is released is by basing the scope of the disclosure on the court’s discretion.

“The court can determine that it can reveal only that a person is on the register –withholding information such as the nature of the offence. The court also can broaden the scope of the information disclosed.”

One way to ensure confidentiality is to make the sharing of that information an offence, he says, “something we are still between two minds on whether to introduce or not. We are open to any suggestion, but on the other hand, one needs to see what the law aims to achieve.”

Mifsud Bonnici questions whether the goal should be “a cat-and-mouse situation, or sending out a clear message that anyone found guilty of certain offences shouldn’t be applying for certain jobs.”

Asked if this means the government is arriving, in a roundabout manner, at the name-and-shame principle it wants to avoid, Mifsud Bonnici says only that non-confidentiality will serve as an effective deterrent.

Instances where people are ‘let go’ from a job due to being on the register will nevertheless receive a certain amount of publicity, he says. “How, as a head of school, could one justify the sudden termination of an employee in any other way? Not to mention the potential accusations of discrimination or nepotism.

“If the opinion in parliament is that we should turn this breach of confidentiality into a crime, I have nothing against it – but I need to be more convinced that I would not be taking a step that would weaken the deterring message being sent out by the law.”

Just months ago, reports by MaltaToday ‘outed’ an ad hoc policy adopted by prison director Abraham Zammit, thanks to which convicted Corradino inmates were let out without proper police supervision, against established prison rules. Days later, the ‘scheme’ was terminated after it transpired that the Justice and Home Affairs Ministry was not aware of its existence. Since then, the official position has been that the scheme is being “revaluated”. When will it see light of day once more?

“This needs to be considered as part of the upcoming reparative justice bill,” Mifusd Bonnici says. He adds that there are two things to be considered, pointing first to the positive effect of allowing inmates to do “constructive and beneficial” community work.

“Our plan is to restructure the scheme to better balance security and the selection of which inmates are identified for community work.” Part of the newly-announced parole reform, an ‘Offender Assessment Board’ will be established and tasked with drawing up care plans for inmates showing signs of seeking genuine reform.

But what does it say about the prison management that it felt comfortable implementing an ad hoc programme without policy-makers being aware?

“The prison programme was carried out by the prison’s acting-director with the best of intention in mind,” Mifsud Bonnici replies. “We did not feel comfortable with the situation because we felt it necessary to integrate the scheme into a bigger programme, not on an ad hoc basis.”

However, he concedes that currently structures are not robust enough to ensure that placement of inmates is done carefully and meticulously. “The acting-director acted in good faith and also showed clearly that it can work,” he says, adding that he also started breaking down the scepticism revolving around the reintegration of inmates in society.

Just days ago, the Auditor General went on record before the Public Accounts Committee affirming that “there was smoke, but no fire” throughout his investigation into the controversial Delimara Power Station extension tender, awarded to BWSC.

Prime Minister Lawrence Gonzi has a history of passing on controversial cases to the Police Commissioner personally for investigation – such as the private investigation that that alleged corruption in a Mater Dei hospital Skanska tender.

Does the minister feel that the report should be passed on to the Commissioner for investigation so that the case can be finally laid to rest?

“Both sides of the room made the mature decision to trust in the Auditor General,” Mifsud Bonnici says. “Once he has investigated, the issue is sine qua non that if an official of the state finds material evidence of wrongdoing, a report would have been made to the Police Commissioner.”

But while he repeats the claim that the Auditor General never found any material evidence of corruption, I put it to him that the ‘signs’ were there. “I am sure that if he found conclusive evidence, he would have reported these for investigation,” Mifsud Bonnici says cautiously.

Mifsud Bonnici also points out that suspicions are one thing, the truth another. “Suspicion is formed based on a conjuncture in people’s minds,” he says, as opposed to a scenario where a public official spends 11 months investigating a case – after which he does not find “material evidence of wrong-doing.”

But does the Auditor General have the investigative powers to exhaustively investigate a case to the point where wrongdoing can be ruled out?

“What does the Auditor General have less than the Police Commissioner?” Mifsud Bonnici asks in turn. “Anyone arrested by the Police Commissioner can elect not to answer questions (the right to silence) – nobody can force him or her. The Police Commissioner doesn’t have the ‘power’ of torture.”

However, the Police Commissioner can, in the course of his investigations, order the confiscation of documents, computers, and any sort of records – something which the Auditor General cannot. “Be that as it may,” Mifsud Bonnici says, “the Auditor General had a lot of material at his disposal and he carried out his investigation diligently over 11 months.”

Mifsud Bonnici however opines that what bothers him is that “we are throwing away the work of a democratic institution.” Referring to the position being adopted by the Labour Party on the BSWC issue, he says that it is “wrong” to first “agree that a ruling should be passed by an institution, and then doubting that ruling.”

“It might be fine for private individuals to speculate, but we are talking about political figures who have responsibilities that are no joke,” Mifsud Bonnici remarks. “They doubt the Auditor General’s work – this is what it amounts to.”

Mifsud Bonnici is critical of calls to increase the Auditor’s General investigative powers. “God forbid the Auditor General becomes an instrument which breaches the democratic concepts that we believe in. Should we introduce arbitrary arrests?” Mifsud Bonnici queries. “Allowing the Auditor General to ‘hold’ individuals until they answer his questions? Are we trying to re-invent the Auditor General’s office? Do we need a ‘super-inquisitor’?

“He had a myriad of tools and documents at his disposal. If there was wrongdoing, the Auditor General would have found evidence – independently of any ‘power’ he might otherwise possess to torture information out of people,” Mifsud Bonnici says.

“Yes, but so what?” Mifsud Bonnici responds to a reference by the Auditor General of uncooperative witnesses who “forgot” information crucial to the investigation – most prominently local BSWC ‘agent’ Joe Mizzi, who reportedly liaised with political figures and described by BSWC management ‘local intelligence working in fifth gear.’

“I believe that when one has all the documentation of a case in hand, one can identify what’s what,” Mifsud Bonnici maintains.

I turn to the way the law courts are managed. In 2008, court regulations were changed tasking the Chief Justice with apportioning the judiciary caseload as he deems fit. Some reacted by speculating that magistrates risk being assigned cases according to their relationship with the government of the day. I ask the minister for a reaction.

“If anything, this amendment would grant the judiciary more ‘strength’ if ensuring casework is distributed without interference or influence by the executive,” Mifsud Bonnici maintains.

He also adds that the amendment – which had the agreement of both government and the opposition – “represented a step forward in strengthening the office of the Chief Justice – to ensure that the Chief Justice actually has power, and not simply the appearance of power.”

I ask whether he agrees with a mechanism for the distribution of cases between magistrates. “Whatever one does, one should ensure that the Chief Justice can ‘create’ lines of specialisation among magistrates so that they can focus on particular branches of law.”

This, he says, means that one cannot know from the outset how many cases will arise dealing with the same field of law in a given year – the numbers vary wildly, he maintains. “This means that internal balance needs to be ensured by the Chief Justice who considers many factors, such as the degree to which a case is complicated.”

Would he be comfortable with a system of testing or examination through which lawyers become magistrates?“In a country this small, there is a big problem with implementing mechanisms in place in other countries,” he says, like establishing ‘schools’ for magistrates, such as in Germany.

He maintains that the mechanism in Germany works because the German Minister could never involve himself or herself personally in the selection of the many magistrates appointed each year.

In Malta, as soon as a lawyer starts on the road to becoming a magistrate, “overnight, his or her work dries up – because clients immediately seek alternative representation,” Mifsud Bonnici says, maintaining that this system is not tenable in Malta.

“Instead, what we tried to create are positions subsidiary to magistrates or judges, such as the chairmanship of the Small Claims Tribunal, or Judicial Assistants,” Mifsud Bonnici explained. Through these positions, prospective magistrates can show what they capable of. “I’m open to any form of mechanism that would work and ensure a valid choice,” he conceded.

But would this contribute to reducing the perception of favouritism? “Perceptions are one thing, and what is correct is another… Even if a Board of Selection is set up, there will still be those who will suspect and claim favouritism. If another system is proposed that works, then by all means – but so far this is what has worked.”