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michaelfalzon
Michael Falzon

Of checks and balances

Simon Busuttil was asking the Attorney General to break the law twice – first by getting a copy of the report and then by publishing it

michaelfalzon
Michael Falzon
16 May 2017, 7:30am
To the magistrate: Simon Busuttil (second from right) in Valletta on his way to testify before the magisterial inquiry into allegations of kickbacks aganst the PM’s chief of staff (Photo: James Bianchi/MediaToday)
To the magistrate: Simon Busuttil (second from right) in Valletta on his way to testify before the magisterial inquiry into allegations of kickbacks aganst the PM’s chief of staff (Photo: James Bianchi/MediaToday)
The alarming difference between what the PN is saying about the Attorney General’s role in the Financial Intelligence Analysis Unit (FIAU) and what the law setting up the FIAU says indicates that we have a serious problem in the legal checks and balances established in the country’s system of monitoring financial transactions and investigation of financial crimes such as money-laundering.

This issue has suddenly become an electoral issue with the result of the FIAU probe on the financial dealings of the Prime Minister’s Chief of Staff, Keith Schembri, being leaked and the Attorney General being accused of doing nothing about the possibility of money laundering flagged by the FIAU.

Earlier this week the FIAU board felt it had to release a statement to point out what the law setting it up says. In a lengthy statement, the FIAU board, which is chaired by Attorney General Peter Grech, emphasised that its task was to set FIAU policy, not to implement it, with a clear division between its role and the operational role of the FIAU director and his staff. 

“The board is not provided with, it does not have access to, nor does it seek to obtain any information or documentation that the FIAU is in possession of... the Board is never aware of suspicious transaction reports received by the FIAU or of their contents.”

In other words the FIAU relays suspicious transactions reports directly to the Commissioner of Police and not to its own board that has to remain unaware of the contents of such reports. The accusations that the Attorney General knew about the details of the FIAU report flagging Keith Schembri’s transactions are untrue. Indeed if he were told what these reports said, there would have been a breach of the law.

Compare this with Simon Busuttil’s official stance on the issue. In a public meeting in Vittoriosa last Sunday, he urged the Attorney General to “publish all reports” related to Mr Schembri and his accountant, Brian Tonna. Technically, Simon Busuttil was asking the Attorney General to break the law twice – first by getting a copy of the report and then by publishing it.

It could well be that the system of checks and balances established in the law setting up the FIAU has failed the country, mostly as a result of the inaction of the Police Force led by a Commissioner whose very appointment depends solely on the Prime Minister. 

To attack the Attorney General and expect him to break the law, however, is not on.

I have no doubt that the current system that leads to the appointment of the Commissioner of Police has to be revisited. Probably even the FIAU set-up has to be revised considering the current circumstances. But revising the existing set-up and eliminating its defects – as one would expect the Leader of the Opposition to promise if he wins the election – is very different from unfairly insisting that the system has failed because the Attorney General did not act on some report that was not available to him.

This is intricate and complicated legal mumbo-jumbo which the average voter does not understand. Nobody will be switching their voting intention as a result of this useless controversy.

With this background, the PN’s personal attack on the Attorney General is nothing short of obnoxious.

Whistleblowing problems

The law protecting whistleblowers has also failed the test and needs revisiting. 

The only person who has ever been given protection as a whistleblower is a Gozitan contractor who claimed that the husband of the former Minister for Gozo, Giovanna Debono, had tasked him with doing work in private property promising payment from state funds, which payment was never made.

The case is still in the Courts and I do not need enter into the nitty-gritty details.

Another contractor who made allegations – that proved to be true – about the abuses in the Foundation for Tomorrow’s Schools (FTS) carried out by a minister’s person of trust was accused of defamation in the Courts.

Since then we have had another two whistleblowers who have not been given any protection: the Russian lady who used to work with Pilatus Bank has been accused of being a fraudster. She was also accused of lying because she had an axe to grind with the bank that used to employ her.

The motivation of whistleblowers is irrelevant to one’s status as a whistleblower. The Gozitan contractor became a whistleblower because he was not paid for his work and not as a result of self-righteous indignation about the alleged abuse of public funds.

The person who leaked the FIAU report on Keith Schembri got nothing from the leak. Last Tuesday the GWU daily l-orizzont accused a particular person of being behind this leak in a blatant ‘name and shame’ exercise. Attacking people instead of expounding principles is the name of the game in Maltese politics.

The possibility of this person – whether he is the one ‘exposed’ by l-orizzont or someone else – being a genuine whistleblower was not even considered. 

Again we have a Whistleblower Act fashioned on the way things are done overseas – methods that are easily undermined by Maltese intuitive intelligence. Or is it ‘common sense’?

Polls and peaks

The different polls or surveys on the voting intentions of the Maltese electorate may indicate different numbers but they all come to the same conclusion – Labour is leading in the second week of the campaign. Yet the die is not necessarily cast.

The second week is normally when there is a lull in the campaign with parties pushing issues from the third week onwards to try to get to a peak as near as possible to election day.

Close election victories are, incredibly, a matter of timing all over the world. Recently Hillary Clinton said she would have won had the US presidential election been held a week earlier.

Timing is of the essence: all electoral campaigns have their peak moments. 

There is still time for the PN to push for more votes if it can build up a momentum leading to a peak on the most critical day – election day on June 3. 

The secret is to avoid a premature peak – as happened with Hillary – and also avoiding a slowly timed run that could uselessly peak after election day.

[email protected]

michaelfalzon
Michael Falzon is a former government minister who served under several Nationalist admini...
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