The Malta Independent 24 October 2021, Sunday

Legislation to combat public office abuse

Sunday, 12 September 2021, 09:00 Last update: about 2 months ago

Mark Said

The public Inquiry's report into the assassination of journalist Daphne Caruana Galizia has recommended that "abuse of office" is included in the criminal code as a crime. Misconduct in public office is not defined in any statute. That notwithstanding, it is inherently a serious criminal offence in that it requires that a public officer acting as such wilfully neglects to perform his or her duty and/or wilfully misconducts him or herself to such a degree as to amount to an abuse of the public's trust in the office holder without reasonable excuse or justification.

Unless a clear and exhaustive definition is laid down in our Criminal Code, problems could theoretically arise through areas of uncertainty, as well as gaps and overlaps with alternative offences. This is to ensure that public officials are appropriately held to account for misconduct committed in connection with their official duties.

Ideally, one could legislate for two specific criminal offences, one being that of corruption in public office, namely where a public office holder knowingly uses or fails to use the public position or power for the purpose of achieving a benefit for oneself or others or to the detriment of someone else, where that behaviour would be considered seriously improper by a "reasonable person" unless it can be demonstrated that such conduct was, in all the circumstances, in the public interest. The other being that of breach of duty in public office, namely where a public office holder is subject to and aware of a duty that arises only by virtue of the functions of the public office, is in breach of that duty, and in doing so is reckless as to its consequences. To provide greater clarity around the scope of the offence, one could recommend that there be a list of positions capable of amounting to "public office" set out in the law. Such a list, however, should not be exhaustive as it would result in a loss of flexibility and would run the risk that some forms of serious misconduct would not be captured. A broadly formulated offence would serve an important purpose in providing an effective criminal sanction against misconduct by public officers.

Thus, circumstances that could render a person a "public office holder" for the purposes of the offence would safely and lawfully call for the application of the respective criminal proceedings. At the same time, one should ensure that the fault and seriousness threshold for imposition of criminal liability is set at an appropriate level while accompanied by the promotion of fairness and consistency in charging and prosecution practice. I consider this requirement would help ensure that public office holders are not subject to prosecution in circumstances that are politically motivated or vexatious and that cases are only pursued where the appropriate thresholds are met. In this sense, I make it clear that the offence of misconduct in a public office should remain a crime defined by conduct as opposed to results, which in that case means that any harmful result only informs the necessary degree of seriousness, which in any case should be left to the court's absolute discretion.

I state this on the strength of a number of events and allegations that occurred in our country over the last years. Furthermore, a statutory definition lacking clarity and precision might easily create the potential for misuse and injustice, and risks it being used as a "catch-all" offence, in place of more targeted statutory offences. On the other hand, I would be more than concerned if the offence had to be commonly used to target relatively junior officials, rather than senior decision-makers whom members of the public might more readily expect to be held criminally accountable.

Behaviour involving dishonesty or a conflict of interest, a breach of trust, particularly in relation to vulnerable individuals, undermining public confidence in the institution to which the public office relates, or public institutions more generally, should all be considered as amounting to "seriously improper" conduct.  In this respect, it is opportune to recall the case of a police inspector accused of divulging confidential information to a lawyer.  Equally "seriously improper" conduct would be the case of journalists, as secondary parties, encouraging public office holders to leak confidential information. We all remember how last April, Speaker Anglu Farrugia was called upon to investigate leaks after standards in public life report on minister Carmelo Abela was disclosed to the press or how certain FIAU reports were leaked to third parties in flagrant breach of the law. While it is true that the press should have all the freedom to probe and find out what is happening, on the other hand, protecting and maintaining impartial and incorrupt public services is also imperative. It has always been a difficult balance and it is open knowledge that for many years some journalists have paid public officials for information.

We must learn from recent history of how some illegal and semi-legal methods were used in a number of energy, health and other sector deals in attempts to eliminate competition and in forced takeovers of legal entities. Typically the perpetrators were unscrupulous business people or even organised crime groups. Occasionally public authorities were involved in such struggles either because the private adversaries misused official procedures or the authorities misused their powers and colluded with some of the parties.

No leaders can defend a nation if they are not held accountable to its laws. Leadership by deception is not leadership. It is fraud. Failing to indict criminals wielding power sends the message that those in power are above the law. A country ruled by criminals and their government minions needs two revolutions, one small and one big: the small revolution is to overthrow the criminally tainted government, the big revolution is to radically undo the damage these criminals have inflicted on the country!

Dr Mark Said is an advocate

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