Undermining whistleblower protection

To undermine this critical piece of legislation would be a grave disservice to a justice system that had in the past always struggled when it came to heavily politicised cases.

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

The Gozo ‘works for votes’ case has lifted the lid on more than just an alleged case of misuse of public funds; it has also exposed the way in which partisan politics continues to undermine justice in this country.

The case revolves around allegations that the Gozo ministry had authorised, supplied materials and (in some cases) paid for private construction works before the last election. Anthony Debono –  husband of former Gozo minister Giovanna Debono and former head of the ministry’s Construction and Maintenance Unit – has since been charged with misappropriation of funds.

Joe Cauchi, the main witness in the case, came forward with details of the racket only after monies due to him for said works were not paid. This renders him an accomplice to the alleged crime; but it also renders him eligible to the provisions of the Whistleblower’s Act, which came into force in 2013.

Cauchi is in fact the first witness to whom this legislation has been applied. But he is by no means the first person to receive State protection in exchange for testimony in a case.

Before the enactment of the whistleblower law, the standard procedure in such cases was for the President (on advice from the Prime Minister) to recommend a Presidential pardon. Past beneficiaries included Joseph Fenech (aka Zeppi l-Hafi), implicated in the attempted assassination of Richard Cachia Caruana in 1994; and George Farrugia, the middle-man in the oil procurement scandal that rocked the Gonzi administration before the 2013 election.

All three cases were heavily politicised, and it is worth remembering the different positions taken by the two political parties at the time. In the Zeppi l-Hafi case, the then PN government had deplored Opposition leader Alfred Sant’s repeated calls for Zeppi l-Hafi’s pardon to be withdrawn. Significantly, it also accused the Opposition of seeking to undermine the institutions that guarantee justice in this country.

The Farrugia case followed a similar pattern. The ongoing parliamentary committee hearings have been characterised by Labour MPs questioning the validity of Farrugia’s pardon, given the inconsistencies in his testimony to date. The Nationalist Party (now in Opposition) reacted by accusing Labour of attempting to sabotage the machinery of justice.

In the present case, the roles have been reversed. Again, the issue revolves around politics: and again, we observe how political parties use their own interests as a yardstick by which the justice system is to operate.

The ‘works for votes’ issues has undeniable implications for the Nationalist Party, and also for its leader Dr Simon Busuttil. Cauchi has testified to having met Busuttil in 2013 to discuss the issue; contradicting the PN leader’s earlier claims to complete ignorance of the matter.
In response, Busuttil has fired from two separate cannons simultaneously. On one level, he accused the Justice ministry of using the Whistleblower’s Act as a “political weapon against political opponents”. On another, he filed a judicial protest formally requesting Cauchi’s State protection as a witness to be withdrawn.

“His protection as a so-called whistleblower hinges on his slander against the PN and myself as party leader,” Busuttil said. “The more he lies about us, the more likely he is to get paid for illegal works he admits to have performed.”

This multi-pronged attack on the whistleblower is unwarranted for several reasons. Not least, it is unnecessary. Contrary to widespread perception (and unlike the Presidential pardon afforded to Fenech and Farrugia), the Whistleblower’s Act does not fully exculpate any whistleblower from involvement in criminal activity. The law itself makes this clear: in cases where the whistleblower “was the perpetrator or accomplice in the improper practice reported” the court shall “take into due account the fact that the disclosure was made by such person” and “the punishment of such whistleblower may be mitigated or remitted”.

This means that Cauchi may still face sanctions for his role in the alleged crime. As such, it is unfair to use his involvement against him at this stage.

Busuttil is however perfectly free to question the veracity of Cauchi’s testimony. The conferment of State protection is not in itself a guarantee that the resulting testimony will be Gospel truth. Ironically, it was the Zeppi l-Hafi case – in which the courts rejected the State witness’s version of events – that had hammered this point home.

What is regrettable about Busuttil’s intervention is that it took the form of an attack on the Whistleblower’s Act itself, in what is effectively its maiden case. Even in the event that his misgivings prove justified, this legislation already caters for the possibility of a whistleblower providing false testimony. And again, this stands in stark contrast to the Presidential pardon system in force before.

This alone illustrates the importance of the law in question. It provides answers to questions that, in previous cases, proved unanswerable: for instance, under what circumstances protection may be withdrawn.

To undermine this critical piece of legislation would be a grave disservice to a justice system that had in the past always struggled when it came to heavily politicised cases. This may well serve the interests of the political parties involved… but it clearly does not serve the interests of justice itself.

More in Editorial