The law, elections and corruption
We voters must push the political system to fight corruption at all times and it is natural that we remain sensitive on the topic even during elections. However, we also must be very wary when corruption becomes the battle cry of the parties in the immediate run-up to elections.
Much is being said on the presidential pardon issued in regard to the investigation of illegal commissions in the purchase of oil.
Labour has questioned the propriety of opting for a presidential pardon since it involved the Cabinet. It considers this political interference in the investigation.
What is the situation in reality?
The alternative to a presidential pardon would be the granting of an “exemption from criminal proceedings” in terms of article 19 of Chapter 326 of the Laws of Malta, which deals with the workings of the Permanent Commission Against Corruption.
In this case, the Attorney General is empowered to act “in his individual judgement”, which would not involve any other authority, whether it be the Cabinet or the Minister for Justice or, for that matter, the President of Malta. To this extent, the application of this article of the law would be neater in the run-up to the elections because it would remove from the scene any outside institution to the Attorney General.
However, the article in question is very specific in the conditions and effects surrounding the “exemption”. “No proceedings before a court of criminal jurisdiction may be taken or continued against him in connection with such corrupt practice or any offence connected therewith”.
The wording of the law is, therefore, very clear and limits the benefit of any collaborator of justice to precisely an “exemption from criminal proceedings”.
On the other hand, the presidential pardon in terms of article 93 of the Constitution of Malta has no such limitations in the conditions that may be imposed to ensure the full collaboration of a person who may be “connected” with an offence.
The Constitution states that such a pardon may either be “free or subject to lawful conditions”.
This difference in the wording of the two provisions of law allows the State to impose an element of reparation or restitution of the harm the person so pardoned may have caused to the State and this may take the form of a restitution of the financial gain the person so pardoned may have made through his alleged illicit behaviour.
In the particular presidential pardon granted in terms of article 93 of the Constitution, the element of reparation is very considerable and is directly linked to the full and truthful collaboration of George Farrugia.
The condition is quite draconian as it should rightly be. He has committed himself and signed an undertaking to return to the State in full any gain he made in the course of the illicit activity and has also undertaken to declare such an obligation as a civil debt in favour of the State.
The presidential pardon, therefore, goes much further than the mere “exemption from criminal proceedings”, which could have been granted through the sole intervention of the Attorney General. This is the heart of the matter.
The presidential pardon makes it very clear that, if it results that Farrugia is untruthful or does not say the whole truth, the pardon will be removed in its entirety.
It is therefore evident that, while there is nothing stopping the Attorney General from making use of the provisions found in the legislation against corruption even up till this very moment, yet the means used and approved by the Cabinet and recommended to the President of Malta is far more efficacious and allows the harm done to the State to be made up by the very person who allegedly may have made an illicit profit in his favour.