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

Prominent criminal lawyer Emmanuel Mallia throws the dorrs wide open to a national debate on the recently launched Whistleblower’s Act, and calls for amendments to the bill. He tells KARL STAGNO-NAVARRA that the proposed draft ‘shoots the messenger’ and certainly doesn’t encourage any whisteblower to come forward.

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.”

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alfred Bugeja * I did not mention Kingpins :) you are saying that- i just mentioned the logic -common sense- ;-) anyways good luck to our new law to fight corruption than ;-)
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@Joe (since we seem to be on first name terms) You would want to involve accomplices, because you need them to co-operate with you to get this scheme up and running. No case of corruption involves a single person. It must at least involve two - the corrupted and the corrupter. With what you and Dr. Mallia are suggesting, the corrupter would be able to report the corrupted and receive a "Get out of Jail Free" card in return. That can't be right, unless you're living in an alternate universe.
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rdebono does not discuss substance but attacks the person. I wish that more people like Dr. Mallia would enter the political arena. I am sure he will do a good job of it. He has proved to be a leading excellent lawyer in this country. Dr. M. Mallia gave his opinions. Is that a grave sin? Or should he be attacked because he has done so? Is this the democracy we boast about? Perhaps rdebono is worried as he may know some person who may be effected if immunity is granted.
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Alfred Galea
@ Alfred......if you were a kingpin of a large corporation scheme and want to pocket a million euros, WHY would you want to involve accomplices?? And do you think that prosecutors are dumb? Now look at it another way....say you know that a minister is pocketing two million euros but you're afraid to squeal on him coz a) you might be afraid of losing your job and b) you might have went along with it coz he had told you it was only a thousand euros at first. If you had protection and immunity from prosecution you might be willing to squeal on the thieving bastard, knowing that your job is safe and you're not gonna be prosecuted for "incriminating" yourself.
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@Silvio Falzon So, with your reasoning, if I were to be the kingpin of a large corruption scheme and I were to involve a number of accomplices to pocket say, a million Euro, you would want me to be immune from prosecution by default if I were to reveal the name of my minor accomplices to the authorities. That would tantamount to removing the web without killing the spider. In which school of thought did you learn the art of thinking in such a warped manner?
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Alfred Galea
Mallia is right. @rdebono.....you are a bozo.
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duncan abela
The whistleblowers act is another case of useless oversight legislation which only on paper protects the citizen and society and is totally ineffective in practice. As other legislation it will hardly make any dent in corruption and maldoing. For let us admit it who other than the paranoic or honest fool will bother to come forward to report and open himself to allegations of lying or dishonesty if the maldoer is taken to court. Our lawyers are expert at using a whole bag of dirty tricks to cast doubt on the character and integrity of the whistleblower. A person intent to bring to light alleged maldoings if he is not himself involved is likely to be somebody green with envy and intent on revenge. An honest whistleblower will be more effective and protect himself better if he leaks his information to the press or better still use the internet media to broadcast it. Social media and wiki leaks are more effective means to disseminate news quickly and widely and a clever leaker can easily hide his identity on the net.Besides not protecting the whistleblower who may only have been a minor accomplice in a crime it also does not offer rewards for those who do report. In America the John Doe law provides that a whistleblower gets a fair and often substantial share of the added revenue which say the Inland Revenue manages to collect, or the amount which Government saves on procurement of goods and services because of the information provided by the whistleblower. There are many Judas in our society but hardly any willing to put their job or head on line as a matter of principle. In our society if there is no personal gain be it an amnesty or a monetary reward the principle of "Rajt ma rajtx smajt ma smajtx" reigns supreme.
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rather than a whisteblower act discussion this looks more like a self promo pre election launch interview by a criminal lawyerway past his shelf life. Even the difference in the photo ( an election style shot) to the video ( a slobby has been) says it all
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Common sense- you don't have to be a lawyer to know this:) who is that Ignorant to say such serious like a national crime , when he or she will be prosecuted as well? ok he or she did the crime or was involved too, but this is a serious crime like national- LOL - hon.Minister pls with respect- not even that he/she must be not prosecuted but also must be protected 24 hours come on let us be serious