10 main takeaways from PN’s anti-mafia and corruption laws

No more permits and tenders during the electoral campaign

One of the laws proposed by the PN precludes government from awarding tenders, issuing permits, publishing legal notices and dishing promotions during the electoral campaign thus limiting the power of incumbency. In the absence of fixed-term legislatures, government powers will only be limited as soon as the campaign kicks for a period of five weeks to a maximum of three months.

A MaltaToday probe had revealed a spike in the award of planning permits before the 2008 and 2017 general elections. The probe revealed an average of 38 permits a day were issued during the 2017 general election campaign compared to just five during the 2013 campaign, and 24 in the 2008 general election campaign. A total of 1,247 planning permits were issued during the electoral campaign 2017 compared to 789 in 2008 and 321 in 2013.

The use of private email and electronic communication including WhatsApp by public officials on matters, which result in private gain, will be punishable by 6 to 2 years in prison

If the PN proposal becomes law, public officials will still be able to converse with relatives and friends using a private email or WhatsApp. They will even be able to use their gmail or WhatsApp account to talk to anyone else on most matters. What will become illegal is the use of personal email and other electronic messaging systems for the pursuit of monetary advantage or profit or in a way, which results in financial losses for the country.

An example of questionable use of personal email which would fall under the parameters of the law was the use of Joseph Muscat’s personal email in negotiations resulting in the termination of a 65-year lease to Café Premier against a €4.2 million compensation. In the aftermath of the Cafe Premier scandal in February 2015, the NAO raised concerns over then-Prime Minister Joseph Muscat using his personal email, [email protected] for government business.

But since the law is not retroactive and is introducing a new crime, which does not presently exist, this will only apply to future cases.

Anyone who is part of a mafia-style association involving three or more persons, which involves secrecy and intimidation, will be punishable by up to 15 years in prison, which can increase to 20 years in cases where the organization is armed

As proposed the law defines “mafia-like” association as one in which members “exercise the power to intimidate” through “membership ties”, and in which members foster a “culture of secrecy” with the aim of controlling economic activities, obtaining contracts, tenders, profit and any advantage for themselves or others. Significantly this also includes illicit attempts to obtain votes for mafia members or others they favour as the mafia does in Italy. As worded the law does not criminalise friendships between powerful people but gives the state power to clamp down on associations in which members conspire to secure illegal advantages for themselves and others. In this way the law would act as a safeguard against state capture and would apply to cases like the murder of Daphne Caruana Galizia in which a number of criminals conspired to kill the journalist.

Significantly members of mafia-like organisations who are not found guilty of committing any other offence will still be liable to prosecution if they are suspected of just being ‘members’ of a mafia-like association.

The abuse of public office not just for personal benefit or that of others but also in waste of public money will be punishable by one to 5 years in prison

Following the Italian and French models, the law criminalises the abuse of public office both in cases where the officer seeks to obtain “unjust monetary advantage” for themselves or others but also when they “abuse of the trust” placed upon them by negligence in a way, which involves loss to the public.

Moreover public officers, including civil servants, will be in breach of the law whenever they fail to abstain whenever they have a conflict of interest involving both themselves and relatives.

The term relative in this case includes grandparents, parents, spouses, civil partners and even cousins.

While failure to declare a conflict of interest is punishable by one to two years in prison, maliciously obtaining monetary advantage and failure to safeguard the public coffers are punishable by prison terms of between two and five years

Various cases of alleged conflict of interests involving officials who failed to declare a conflict of interest either because of personal gain or the proximity of close relatives to developers, have surfaced in the past years particularly in the planning sector.

Obstructing justice by offering or promising money or any other ‘profit’ to any person called upon to give evidence or expert opinion in court will be punishable by two to seven years in prison.

Promising witnesses and court experts rewards with the intent of derailing justice will become a criminal offence

As proposed the law distinguishes between cases where the offer or promise is made but not accepted which result a penalty of a maximum of five years and cases where the offer or promises are accepted which result in a maximum penalty of seven years.

If approved the law will fill a vacuum exposed in the Daphne Caruana Galizia murder probe in which key figures like Keith Schembri have yet not been questioned on suspicions that they may have derailed investigations. Yet since the law will not apply retroactively police will still have to rely on existing legislation to prosecute officials who may have derailed these investigations. These include laws against the fabrication or destruction of evidence and against the sharing of official secrets.

Civil servants who fail to perform official duties, which have a bearing on public security and order, would risk between six months and two years in jail

As proposed the law drafted by the PN will criminalize public officials who “unreasonably” refuse to perform their duties, which for “reasons of justice, public security and order” should be carried without delay. The law sets a 30-day time frame for public officials to carry out their official duties whenever they are “notified” in writing by anyone with an “interest” in the case. But any official who provides a “reasonable” justification for the delay will not by guilty of such an infringement.

Over the past years, particularly after the publication of the Panama papers, various public officials including police commissioner Lawrence Cutajar, have been accused of not fulfilling their duty to investigate money laundering and other serious crimes.

Corrupt practices including those committed by ministers, persons of trust and local councilors will be investigated by an inquiring magistrate who can commence investigations on his or her own initiative.

The investigation and prosecution of corrupt practices will become the sole prerogative of a “special inquiring magistrate,” chosen from the existing pool of magistrates who will be directly appointed by the President of the Republic. As proposed the law makes no reference to any need of prior advice of the Prime Minister.

Significantly, the inquiring magistrate will rely on his own staff and will not depend on the police in carrying out his investigations.

The commissioner of police will be legally bound to detail police officers to assist the magistrate in his/her investigations. Moreover the inquiring magistrate, who will have security of tenure throughout the six-year role, will be able to commence investigations on his own initiative. This means that investigations on the Panama papers and related spin-offs would not have required a police report to be filed by someone like Simon Busuttil, but would have been commenced by the inquiring magistrate.

Although much would depend on the stamina of the magistrate chosen for the role, the new law first proposed by Alternattiva Demokratika in its 1992 manifesto and subsequently by the Alfred Sant-led government in 1997 would go a long way in eradicating the climate of impunity in the country.

Ironically the PN is now proposing the change despite its failure to enact such a law in its 25 years in office.

The president can grant a 'certificate of immunity' to those providing evidence to inquiring magistrate

As proposed the law also gives the President of the Republic the power to grant a “certificate of immunity” to anyone providing evidence to the inquiring magistrate without risking incrimination.

Significantly it will be the special inquiring magistrate who will present the request to grant immunity and the president will not be following the advice of the Prime Minister and the cabinet as happens in cases of presidential pardons like the one granted to Melvin Theuma. This will strengthen the role of the President beyond his/her current ceremonial role.

Recent constitutional amendments, which require that a two-thirds majority elects the next president, would also strengthen the perception of impartiality needed for the president to exercise the new powers envisaged in the proposed bills.

Police can seek permission to detain suspects of homicide, drug trafficking and money laundering for 72 hours instead of 48 hours but only if their demand is acceded by a magistrate

It remains to be seen how an extra 24 hours will help investigators in their interrogations of suspects in serious crimes. One major concern is the impact this change will have on the rights of suspects who may well be innocent but may succumb to pressure by the police. But apart from being limited to serious crimes, as proposed the extension in interrogation time will not be granted capriciously and will require a justification by the police commissioner and the final approval by a magistrate.