With European surveys indicating widespread perceptions of corruption in Malta, many look to institutions such as the Ombudsman for reassurance. Incumbent Dr Joseph Said Pullicino states the case for strengthening legal and procedural weapons in the fight against maladministration
By Raphael Vassallo
2009 may yet go down in history as Malta’s most recent “annus horribilis” – at least, insofar as public perceptions of corruption are concerned.
Apart from the overdue conclusion of the Noel Arrigo bribery trial in November, various other spectacles have suggested rottenness in the state of Denmark over the past 12 months. Among others, we saw a minister ‘flying high’ in the company of leading businessmen, oblivious to the fact that these businessmen were also leading players in an industry regulated by the selfsame minister in question. Elsewhere, we heard cries of ‘corruption’ over a €200 million power station contract awarded to BWSC (a firm already embroiled in numerous corruption allegations across the world), with internal emails suggesting the apparent involvement of politicians in the tender process.
Added to these was a seemingly endless litany whereby the Malta Environment and Planning Authority issued one building permit after another, often in sensitive and/or supposedly protected areas, despite clear and direct negative recommendations by the authority’s own case officers. And all along, the country was still reeling from the shock of the recent VAT fraud case, when millions of euros were siphoned off by at least eight members of the public service, in what has been described as the largest single fraud case in Maltese history.
Small wonder, then, that public trust in institutions appears to have hit an all-time low. If the latest Eurobarometer survey is to be believed, a scarcely credible 95% – almost the entire country, in point of fact – now perceives corruption to be a “serious problem” in Malta; and significantly, 73% consider corruption to be “rife” in the granting of building permits.
All this adds up to a devastating indictment of the state of Maltese governance in general; but national Ombudsman Dr Joseph Said Pullicino – who often finds himself cast in the role of arbiter of last resort, precisely in complaints against the country’s institutions – is the first to advocate caution in interpreting the survey results.
“Surveys based on percentages and comparisons should be taken as indicative of a trend, rather than a reality check,” he begins as we meet in his office in St Paul’s Street, Valletta (where he sits under an enormous oil painting depicting ‘Justice and Mercy’ – the handiwork of his predecessor, and Malta’s first Ombudsman, Joseph Sammut).
“For one thing, perceptions of issues like corruption vary greatly from one country to another, depending on the sensibility of society to the problem. Much also depends on the type of questions put in the survey, and the moment in time when a survey is carried out...”
At a glance, the Ombudsman appears to be echoing MEPA’s own chairman Austin Walker – who last week avoided commenting on the same issue, citing much the same excuse. But a cursory glance at current international affairs will support Said Pullicino’s overall thesis that corruption somehow ‘changes meaning’ depending on one’s country and culture. The recent ‘expenses scandal’ in the UK, for instance, is likely to have been less of a political earthquake had it erupted in Greece or Bulgaria: two countries which currently vie with Malta at the bottom of the European corruption table. By the same token, Italy’s ‘tangentopoli’ crisis of the mid-1990s had been greeted with bemusement here in Malta, where many saw little or nothing wrong with paying a ‘kickback’ to get the occasional government contract.
From this perspective, what the Eurobarometer survey appears to indicate is more an apparent change in attitudes towards good governance (or lack thereof), than proof of corruption being actually rampant. Awareness of what constitutes ‘corruption’ appears to be on the rise, with the result that certain practices that used to be accepted across the board, are now being openly questioned for the first time.
“This in itself is not a bad thing; it shows an increase in sensitivity towards the need to have a transparent and correct public administration,” Said Pullicino continues. “Moreover, it is obvious that if in a particular year society is jolted and shocked by high profile corruption cases involving the upper echelons of a country’s administration, public outrage is bound to be reflected in a higher degree of mistrust of the national institution involved.”
However, the Ombudsman openly doubts whether the European survey itself can be taken as proof of a collapse in public confidence, even if based only on perceptions.
“These are momentary setbacks,” he adds with reference to recent corruption incidents (primarily the Arrigo trial, though as a former Chief Justice himself, the Ombudsman stops short of naming names). “Even if serious, they do not however necessarily translate into a corresponding high level of mistrust in the country’s institutions, be they administrative or judicial. One bad apple in the basket does not necessarily mean that all the other apples are rotten...”
But the biggest difficulty in attempting to ascertain the levels of corruption in any country remains the precise identification of a case of corruption to begin with. And Said Pullicino argues that, like human rights, ‘corruption’ is a notoriously difficult concept to define... even if no one really doubts its overall effect on society.
“Corruption rots good administrative practice,” he states assertively when I ask for his own private definition. “Therefore, as Ombudsman and guardian of good public governance, I cannot but take note of the sharp rise in the public awareness that corruption is becoming a problem. I personally believe that the problem runs deeper than what appears on the surface. Again however, it is a question of how to define the word...”
As we speak it becomes evident that Said Pullicino is concerned (and possibly also impatient) with the undeniable fact that discussion is limited to ‘perceptions’ as opposed to actual cases. As he himself puts it, “public perceptions are often built on generalisations, rather than on the rigorous analysis of hard proven facts.”
“If corruption is viewed as a breach of duty, when a public servant assumes powers which were not intended for the performance of his functions, and uses them to promote other interests – especially for his own benefit, or for the benefit of those close to him – then it is obvious that instances of corruption cannot be limited to those cases where hard cash changes hands. It includes also a myriad of other cases where undue advantage or preference is given for a multitude of reasons, ranging from family and friends to political and business connections.”
But this only confounds the ability to combat corruption, as cases such as these leave no material evidence behind them. On the contrary: they tend to create a smokescreen of suspicion and popular doubt, which in turn undermines public confidence in what appears to be a vicious circle of cynicism.
“It is this mentality of obtaining undue advantage through connections – family, business etc, – that is a major contributor to the conviction that corruption is rife. It becomes a way of life, difficult if not impossible to eradicate. It is then that it becomes extremely difficult to identify and weed out. In investigating allegations of corruption, hard evidence is very difficult to find and this is amply proved by the fact that very few cases actually come to light and are prosecuted.”
Added to the difficulties facing the investigator is the inevitable underlying suspicion that in many cases, ‘corruption’ is really just another term for ‘sour grapes’.
“Experience shows that it is very difficult, if not impossible, to identify cases where citizens come forward with hard evidence to nail a corruption case. Significantly, when they do so it is often those who were unsuccessful in obtaining their advantage competitor acquired, albeit in the same circumstances, that provide the facts. As a result, evidence could be tainted or suspect...”
All this makes the Ombudsman’s job particularly difficult – and the difficulty multiplies when one considers that his own remit is limited only to making recommendations to Parliament... recommendations that can in turn quite easily be ignored.
Said Pullicino admits that “around 99%” of reports tabled in Parliament are not acted upon: a dispiriting statistic, but at the same time he reminds me that these reports involve only a fraction of the investigations undertaken by his office, most of which end up with recommendations submitted directly to the office/institution under review.
Added to these difficulties is another – namely, that the various institutions involved in investigating allegations of corruption and/or maladministration appear to be scattered across a vast spectrum of unrelated offices and commissions, and sometimes lack the basic infrastructure to do their job properly.
“We are working on this issue as we speak,” Said Pullicino informs me, adding that his own recommendation (i.e., to bring the various institutions together under the umbrella of his own office) has been warmly received by both sides of the House.
In any case, the problem remains to date unresolved. For reasons outlined above, any system geared towards investigating and uncovering corruption cases cannot limit itself only to ‘following the money’, to use the jargon commonly associated with criminal investigations. As society fine-tunes its definitions of corruption, it must also update its institutions and mechanisms accordingly: something which Dr Said Pullicino admits Malta has been slow (and sometimes reluctant) to do.
The natural example arises as a matter of course - Said Pullicino himself has been embroiled in the ongoing controversy regarding MEPA’s internal auditor Joe Falzon: accused by the Prime Minister of undermining public faith in MEPA, after issuing a number of internal inquiry reports (often involving political figures, as in the Victor Scerri case earlier this year) that tend to imply corruption without actually coming up with any cast-iron proof.
“The MEPA audit office is a case in point, though there are others,” he begins. “One of the problems is that Joe Falzon is himself an employee of MEPA, which is the organisation he is tasked to investigate. This is in direct breach of the Paris principles...”
Taking note of my blank expression, the Ombudsman briefly digresses to explain what these ‘Paris principles’ actually are.
“In the early 1990s, the United Nations General Assembly adopted a resolution which, in a nutshell, was intended to safeguard the political and financial autonomy of national institutions such as these. The main principles include that an institution geared towards investigating must be independent and at an arm’s length from the bodies it has the power to investigate...”
And I take it the MEPA audit office is not the only one to fall short of these criteria? Said Pullicino nods.
“Most Maltese national institutions are not in conformity with the Paris principles, no,” he admits. “Government is aware of this issue and to its credit has taken steps to address it; but there is still some distance to go.”
Coming back to the MEPA audit office, Said Pullicino points out that, apart from being financially dependent on the institution it is supposed to investigate, the same office has not been given the basic resources it needs to carry out its functions properly. The same, it seems, goes for a number of other national institutions, including the Children’s Commission (which, he says, “doesn’t even have a decent office”), and the University Ombudsman (who until recently lacked even the most basic of staff complements, such as a secretary).
Lastly, Said Pullicino argues that certain legislative measures to combat corruption are still missing, despite what appears to be a clear demand for them... foremost among which, the much-touted (but now largely forgotten) Whistleblower’s Act.
“It is in the overall context of the difficulties in combating corruption, that the need for a very strong Whistleblower Act is felt. It is my view that the Act should afford adequate protection to the whistleblower, yes... but such protection should only last so long as it results that the information given was valid, could lead to an effective prosecution, and was not frivolous or vexatious...”
Again, however, its implementation appears to be hampered by the lack of a serious infrastructure to address the issue of corruption, real or perceived – although the Ombudsman assures me that a centralised office, uniting the various institutions involved under one aegis as a ‘one-stop shop’ for complaints, is currently in the pipeline.
“The Whistleblower’s Act should also be administered by an independent authority that should, in the first place, assess the information given and determine whether it was prima facie valid and consistent to merit investigation,” Said Pullicino observes.
“One could suggest that such an assessment be done by the Ombudsman and the Auditor General together. If they were satisfied that the whistle blower merits protection, they could be empowered to issue a temporary protective order that would remain in force till the end of the investigation or until they decide otherwise.
That order, he adds, may include “whatever the Ombudsman deems just and necessary” to protect the rights of the whistle-blowing employee, taking into account the need to maintain the proper functions of the public body. Eventually, that may include revoking the employee’s dismissal or awarding special compensation to him in money or in rights.
“It is my conviction that putting in place a comprehensive and effective Whistle Blower Act could go a long way to deter corruptive practices and promote good and transparent administration.”
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