Updated | Bribery law is clear on ‘accomplices’, but government insists it has different legal advice

Updated with comment from parliamentary secretary for justice Owen Bonnici

Additional reporting by Miriam Dalli

Malta's Criminal Code is clear about who a person committing an act of bribery is, raising the suspicion that the government does not want to haul hundreds of Enemalta customers in court for paying Enemalta employees to hack their smart meters to register less energy being consumed.

The government is saying that the Attorney General believes the Enemalta customers who paid the meter-riggers might not be liable under bribery laws.

But Article 115 (2) of the Criminal Code, clearly states that a public official who requests, receives or accepts a reward to be induced to forbear from doing what he is in duty bound to do, is guilty of bribery. That means that an Enemalta employee who took money to rig the meters, can be found guilty of bribery.

On to Article 120 of the Criminal Code: if a public servant has been bribed then the person who bribes the public servant "shall be deemed to be an accomplice".

Even if the public servant or the other person does not commit the crime, the person who attempts to induce any party to commit the crime is liable to imprisonment for up to three years.

In a comment following the publication of this story, Parliamentary Secretary for Justice Owen Bonnici said that this newspaper's interpretation of the law "does not reflect the legally correct position according to the advice the government has... Independently of Article 115 of the Criminal Code, the government is committed to break down the wall of silence and encourage people to come forward with information, pay what they stolen, with interest and penalties, and in that way be in a better position to catch 'the big fish' and give the honest citizen justice."

In a political bid not to press charges against some 1,000 consumers and business owners for bribing Enemalta officials into tampering their electricity meters, the government will rely on consumers coming forward and paying an administrative penalty, apart from the bills they have to pay with interest.

Criticism of government's decision to waive criminal steps against meter owners who bribed Enemalta employees to have the meters rigged and register less energy consumed yesterday intensified, with the Nationalist Party accusing Prime Minister Joseph Muscat and the government of issuing a blanket pardon for the 'bribers'.

Alternattiva Demokratika chairperson, Prof. Arnold Cassola, also said: "The law is there to be respected and no one must get the impression that bribery and cheating the country of just payments is something one can condone. We expect zero tolerance on corruption. Corruptors and corrupted alike must answer, according to the law."

Enemalta has not disclosed the exact amount of residential and business meters that had been found  tampered with, when asked by MaltaToday.

Although the Criminal Code is clear over people who bribe public officials to "forbear" what they are in duty bound to do, the electricity regulations allows Enemalta to waive criminal charges on theft of electricity if all damages are settled with interest, and an administrative fine is paid.

This last step, criminal lawyer and head of department of criminal law Stefano Filletti told MaltaToday, may be crucial in understanding that paying an administrative penalty to Enemalta can constitute a bar for criminal prosecution - in a nutshell, consumers who pay the penalty could be 'protected' under the principle of double jeopardy.

"Apart from that, it is not easy to charge some 1,000 people: the prosecution would not only have to prove that energy theft has occurred, but also that bribery took place, producing evidence on each instance of bribery separately in each and every case," Filletti told MaltaToday.

The government is now saying that providing information on the tampering of smart meters or electricity theft "is a prerequisite" for the waiver.

It is also insisting that legal advice from the Office of the Attorney General suggests that payments carried out by the consumers, may not amount to bribery of the public officials.

Parliamentary secretary for justice Owen Bonnici said that while the law allows the politically-appointed chairman of Enemalta to waive criminal proceedings against consumer theft - as laid down in a legal notice introduced in 2006 by then energy minister Austin Gatt - he claimed advice from the Attorney General was that consumers may have not carried out an act of bribery as defined in Article 115 of the Criminal Code.

The two ministers insisted they had not seen the list of 1,000 consumers.