We have been hearing widespread calls for the government to implement the recommendations made by three judges in the inquiry on the assassination of Daphne Caruana Galizia.
What are the recommendations, and why is implementation crucial? And do journalists need protection?
The judges’ recommendations are designed mostly to make the fight against corruption and criminality more effective, and take the battle to crooks (and that includes thieves and hitmen). Here is an explainer of the key recommendations below.
Unexplained wealth order
Under this law, failure to account for any wealth, be it funds or material possessions, would constitute guilt. An increasing number of countries have been adopting this law as an extension of – and escalation to – the fight against money laundering.
Money laundering is the defining crime of our age. It refers to the handling or use of proceeds of crime – since money is the object of most crimes, money-laundering is a component of most crimes.
Under existing legislation – the Prevention of Money Laundering Act – the police usually charge people with money laundering as well as the predicate (or underlying) offence.
A finding of guilt of the underlying offence is not needed for a conviction on money laundering. The law says that the prosecution does not have to present incontrovertible evidence of the underlying crime – that this can be “established on the basis of circumstantial or other evidence” and “without being necessary to establish precisely which underlying activity.”
But the law as it is still compels the police to gather evidence of the underlying crime – or predicate offence – and the likelihood remains of the prosecution failing to prevail in court if it does not demonstrate at least circumstantial evidence of an underlying crime.
This is where the Unexplained Wealth Order comes in as a foolproof instrument against complex financial crime and organized crime. The police would simply have to show that there is no legitimate explanation that accounts for an accumulation of wealth, be it money or material possessions.
And this instrument – Unexplained Wealth Order – takes the fight to criminals because the potential of being prosecuted (or nabbed) on the basis of unexplained wealth makes it much harder for crooks to keep their crime hidden or unaccountable.
It also makes police’s work easier and more effective.
Make obstruction of justice a crime
At present, if the police become aware that someone has any information or documents that are needed in the course of an investigation, they can summon that person to a police station to give such information or evidence, and anyone who does not go the station with such information or documents can be charged with a contravention (subject to a maximum punishment of 3 months detention).
This legal provision is rather vague, and it does not cover situations in which someone knowingly conceals or fails to willingly reveal the existence of a crime after it happened. In other words, if you get to know of a murder having been committed, you are under no legal obligation to proactively or passively reveal anything to the police. Moreover, if you come across a document (even if someone asks you to hold on to a document) that can be proof of a crime having been committed, it is not a crime to conceal it from the police (for as long as this is after the crime was committed; if it is before, then that would be the offence of association) unless the police specifically ask for it (in which case it may be the minor offence of a contravention).
Yet these actions can amount to an obstruction of justice.
The board of inquiry suggested that obstruction of justice by civil servants be made a crime.
Making civil servants’ abuse of power a crime
Sometimes civil servants, or government permitting bodies, take decisions that are so arbitrary or without reasonable basis that it is impossible to shake off the suspicion of corruption. Yet the police may find no evidence of corruption, and the government official or officials get away with it.
Hence the recommendation: to make abuse of power by government officials a criminal offence. This would make arbitrary or preferential decisions, or decisions without reasonable basis, an abuse of power that would be actionable under such a law.
This would not only make it much harder for corrupt officials to get away with corruption, it would also vastly improve the quality of governance as officials would become more diligent in decision-making.
The consensus is that this would be dangerous because it would have to define who is a journalist and the criteria used can end up excluding those who do not satisfy the criteria. The cirteria can become arbitrary, or set artifical bars. In jurisprudence, a journalist has been defined as someone who practices the journalistic profession on a regular basis. But here too, we get into the issue of how to define the 'journalistic profession.'
I think the following ought to be done:
1. Strengthen legal provisions that safeguard freedom of expression and the right to know
2. Amend provisions in criminal law that would make it legitimate for courts to impose higher punishments in the event of crimes against those exercising freedom of expression to publish or broadcast in the public interest
The same legal provisions can then be extented to cover activists, who also take risks (there are activists who take greater risk than most journalists – when it comes to journalists, it is investigative journalism that is markedly risky). In this manner, the law would provide for higher punishments in the event of crimes against activists – and activists can be defined as those who actively participate in or engage in any action (legal action, protests, taking part in administrative or regularoty decision-making processes, and so on) in the public interest, or in the interest of social or environmental justice.
Moreover, investigative journalism can be given even further protection, and attacks on investigative journalists liable to harsher penalties. In this manner, the idea would be to define investigative journalism, and not try to define on who is a journalist generally.
