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Presidential Pardons and Whistleblowers

Keywords: Art. 93 of the Constitution, the Whistleblower Bill

 

 

The Government recommended a 'Presidential Pardon' to Businessman George Farrugia, in connection with the oil procurement saga which came to light recently. In more technical terms, this is called a 'prerogative of mercy' and is regulated by article 93 of the Constitution: 

 

93. (1) The President shall have power to - 

(a) grant to any person concerned in or convicted of any

offence a pardon, either free or subject to lawful

conditions;

(b) grant to any person a respite, either indefinite or for a

specified period, of the execution of any sentence

passed on that person for any offence;

(c) substitute a less severe form of punishment for any

punishment imposed on any person for any offence; or 

(d) remit the whole or part of any sentence passed on any

person for an offence or for any penalty or forfeiture

otherwise due to the State on account of any offence. 

 

 

I do not consider myself to be in a position to go into the merits of the issue and  to comment on whether the Government should have, or actually needed to recommend, that His Excellency the President grants mercy to Mr. George Farrugia. Only the Police, the Attorney General and the Government (Cabinet) know whether this is actually beneficial, whether the Police will be given sufficient information as to justify the move, and importantly whether the Police will receive information it would otherwise have been next to impossible for them to collect.

 

On the other hand, the conditions of pardon have been published in the Press, and include the transfer of all related illicit gains (funds, monies or other profits). As a citizen and tax payer, I am glad that the illicit gains are being forfeited and are returning to the public coffers where they rightly belong. I also consider the other conditions to be fair, namely that the pardon is limited to crimes related to the allegations of oil procurement, and that the pardon is conditional to Mr. Farrugia disclosing the whole truth.

 

The main points I would like to make related to this case are the following:

 

Firstly, this case came to light after certain matters came to public knowledge. This was made possible by certain legislation including the Press Act and the Freedom of Information Act. This particular case on oil procurement proves the importance of open government: a government which cannot hide, an administration open to continuous public scrutiny. The more openness, the more transparency, the better, because people will be less inclined to cheat if they know that they are not sheltered.

 

 

My second point concerns the fact that from what I have read in the media, it seems that some people seem to be linking the Prerogative of Mercy being recommended in connection with businessman George Farrugia, with the Whistleblower Bill. They seem critical of the fact that we do not have a Whistleblower Act on the Maltese Statute Book. I am anything but against a Whistleblower Act being passed in Malta. On the other hand, the Whistleblower Act (or its absence) has little to do with the George Farrugia case. If we had a Whistleblower Act, it would have served no purpose to Farrugia, at least not according to Bill No. 58 of 2010 which is available online ( http://www.doi-archived.gov.mt/en/bills/2010/Bill%2058.pdf  ) . Clause 5 of the Whistleblower Bill reads as follows:

 

5. (1) Nothing in this Part shall prevent the institution of

criminal proceedings against the person making the disclosure where

the authority has determined that such person was the perpetrator or

an accomplice in the improper practice which constitutes a crime or

contravention under any applicable law prior to its disclosure.

(2) Nothing in this Part should be interpreted as providing

immunity to any person making a disclosure about an improper

practice from any disciplinary or civil proceedings or liability arising

from his own conduct.

 

A criminal can never seek refuge under the Whistleblower Act (as the Bill presently stands). The Whistleblower Act does not, and indeed should not, provide any form of refuge to any person who is involved in any way in criminal dealings. Whether such a person finds mercy from His Excellency the President under article 93 of the Constitution, is one thing. Whistleblower legislation is a completely different matter.

 

Whistleblower legislation is there to protect people who cast to light the misdeeds of others, to protect such people from retribution. This law could prove effective, because it encourages people to speak up, to denounce wrongdoing. The lawmaker is sending two strong messages to society:

i.              that wrongdoers had better beware because they have no guarantee that nobody will bring their misdeed to light;  and

ii.            that the honest, conscientious individual should not be afraid to speak up when they come across a misdeed, because he will be protected. The employer cannot for example dismiss somebody from his job for reporting a wrongdoing.

 

The protection offered by Whistleblower legislation is, in my opinion rightly, subject to an important condition: that the Whistleblower is not involved in the wrongdoing. If somebody discloses a wrongdoing to protect himself, for example, if he was involved in something and is afraid that the Police will soon catch him, he cannot avail himself of any form of protection which the Whistleblower Act may otherwise offer. I hope that if a future government finally passes such Whistleblower legislation, this aspect of Bill No. 58 will remain unchanged: whistleblower legislation should never offer refuge to people involved in criminal activity.

 

Whether that person may seek and obtain a 'presidential pardon' is a different matter altogether.

 

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