Friday, 4 December 2009

Getting Serious On Corruption

Getting Serious On Corruption

4th December 2009

The Malta Independent - Friday Wisdom

Alfred Mifsud

Any country that has proven systems to prosecute in an open, fair and transparent manner a former Chief Justice for an indiscretion involving a few thousand Euro should be proud of its record of being an effective democracy where corruption is not tolerated and where everyone is treated the same under the law even if he happens to be the very former Chief of the judicial system.

Whilst we may individually have opinions about whether the punishment was too lenient or too harsh, what is important for restoration of public faith in the court systems is that there is a strong general perception that justice has been carried out in a very impartial manner.

Personally I think that more needs to be done to ensure that the public’s faith in the court system is fully restored and strengthened. The persons involved have been judged and found guilty and have been sentenced without fear or favour. Whatever our feelings, we cannot have any doubts about the proper execution of his duties by the judge concerned who surely needed to overcome personal feelings in judging and sentencing his former chief.

But I question why we have not done anything to overhaul the system through which magistrates and judges get appointed to the Bench. Should not part of the moral guilt of the case in question be carried also by the system of how judges are appointed and by whoever used the system to make the appointments that proved so unsuitable?

We cannot be happy with a system where magistrates and judges are appointed at the sole decision of the minister, probably with some consultation with the Prime Minister, without a system of public grilling of the appointees by a parliamentary committee before confirmation.

To be an effective judge one must not only be conversant with the laws one is expected to interpret, but one should be well moulded in strong moral values, have solid understanding of psychological and physiological sciences, be utterly reticent in his dealings, have a reserved character which makes him not so easily accessible and has no interest outside the judiciary which could cause serious conflict of interest. These are some of the necessary, but not exhaustive, attributes one should have to make it to the judiciary. Can anyone honestly say that whoever appointed the ex-judges concerned to the Bench without proper screening against these and other relevant criteria, has made the judges, the court system and the nation any favours? Should not whoever made the decision about their appointment without proper screening also carry part of the moral guilt of the case?

This was not only a case of failure by the persons who have been convicted. It is also a case of failure of the system that appointed them in the first place. Punishing the culprits without overhauling the selection system, making it more thorough and transparent, means that this remains a job half (un)done.

Whatever credits the country might have earned through the conclusion of the judicial process involving the former Chief Justice (save for appeal which may be lodged) it was quickly lost in the laughable drama that happened this week in relation to the award of a high value contract to a Danish firm for installation of equipment to extend the power generation capacity of the Delimara Power Station.

The Opposition has long been arguing that there are strong suspicions of corruption in the award of the tender, where the following points have remained undisputed:

a. A Maltese agent has been involved and is due to receive a sizeable multi million Euro commission for helping the Danish firm to clinch the contract.

b. The Maltese individual is a private individual without corporate clout and his chief attributes were his access, as an ex-Enemalta engineer, to high ranking officials within Enemalta who were influencing the technical specifications of the tender.

c. During the negotiating process the Maltese agent had privileged access to information not simultaneously distributed to other bidders and boasted of his connections with persons in high levels of government.

d. Government changed the technical specifications of the contract from those originally announced in a way that favour the technology offered by the Danish winning bidder.

Throughout the serialisation of these accusations by a prominent member of the PL opposition there was complete silence on the part of the Danish bidder and his Malta agent. However when this week the PL leader gave prominence through a dossier presented to the Auditor General, of past claims of corruption that involved the same Danish bidder regarding contracts executed in other countries, the Danish company suddenly sprang into action to control damage to its reputation.

They quickly came to Malta to reassure us that the claims were false and were never actually made through proper prosecution without making it clear whether this was so only because at the time of their alleged commitment, the law was not rigid enough to cover corruption made in a foreign country outside Denmark. Basically was prosecution avoided because of a technical legality or because the accusations were unfounded?

Corruption is a serious matter. If allowed to go unchecked people will start gaining the impression that it is easy to get away with it and that once everyone else is doing it, it is perfectly rational to lower one’s own standard not to be disadvantaged. In the cases of the judges the system prevailed and this impression has been proved wrong. Why are we therefore tolerating this impression in the case of more substantial sums involved in such a big and important contract?

Once the Danish suppliers are paying a hefty commission to their Malta agent no one need prove any direct payment by the suppliers to local functionaries involved in awarding the contract. It is the local agent that has to be investigated and during this week this main actor was conspicuous by his absence. The Danish suppliers distanced themselves from their Malta agent by stating the he was his own man!

This is not a matter for the Opposition to investigate. The Opposition has no resources or legal powers to do so. Where there are serious suspicions as in this case, an independent Board of Investigation needs to be appointed and given wide brief and powers to investigate the whole process. The Auditor General may make his own parallel investigation as he is entrusted to do by Parliament.

Corruption takes many forms. Gaining access to privileged information and influencing contract specifications to favour one bidder over another are in themselves variants on the theme of corruption. It is time to get serious on corruption.

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