Sue Enemalta officials for the bribes they were paid? The government doesn’t have a legal leg to stand on.
The prime minister said today that jailing the Enemalta employees who took payment for tampering with smart meters so that more than a thousand people could steal electricity “is not enough”.
The government will (I quote Times of Malta):
institute civil proceedings to recover the money they had stolen, including the €1,500 they were allegedly paid for each tampered meter. The ultimate aim, Dr Muscat said, was to catch the big fish.
I heard Muscat say on television this evening that the money the government obtains from doing this will be spent “for the good of the country”.
I was astonished.
I am not a lawyer, nor have I consulted any lawyer on the matter, but I do have some understanding of the basic principles of law, and it is clear to me that the government has neither a case nor a legal leg to stand on.
At the outset, the government has no judicial interest which would allow it to sue Enemalta employees. Enemalta employees are the employees of Enemalta Corporation and not of the government of Malta. The entity with a judicial interest in the matter, allowing it to sue its employees civilly, is therefore not the government of Malta but Enemalta Corporation.
Any monies Enemalta Corporation may obtain through the successful outcome of any such case will therefore stay with the corporation as rightly belonging to it, and cannot be passed on to the government of Malta nor taken by the government of Malta, which now no longer wholly owns Enemalta Corporation but has China, with its 33% shareholding, to deal with.
But Enemalta Corporation, though it has the judicial interest required for a civil suit, does not have a legal leg to stand on. For a company to sue its employees for the return of something it considers to be rightfully the company’s, it must have a legal right to that something. Enemalta Corporation has – and this is the starting-point – no legal right to bribes paid for tampering with smart meters because the company is not in the business of being paid to tamper with its own smart meters to allow electricity to be stolen from it.
The Eur1,500 paid by individuals and businesses to Enemalta Corporation employees so as to ‘fix’ their smart meters so that they could steal electricity was not a payment for a legitimate service rendered, but falls fairly and squarely into the category called ‘bribery’. Yet the prime minister is speaking about that money as though it were a payment for a service that Enemalta Corporation offers routinely and for which its employees pocketed the money instead.
In other words, the prime minister is making this the equivalent of a washing-machine technician who calls at your home, fixes your machine, takes your cash, fails to give you a receipt, then tells his company foreman that you weren’t home when he called and keeps the money for himself. THAT is a payment for a legitimate service rendered, with the money that should have gone to the employer being illegitimately pocketed by the employee instead.
What the prime minister is saying in the Enemalta case is “Hey, those bribes should been ours.” And there is no court in Malta, unless it is presided over by Christmas Carol or that gross slug Farrugia Sacco, which is going to rule that an employer has a legal claim to money that is in itself illegal – a bribe – paid for a service that the employer does not provide (damaging its own technology to allow its customers to steal from it). And that’s assuming that the presumed employer is the employer in the first place, which the government of Malta is not because Enemalta Corporation is a separate ‘legal person’.
This is the PRIME MINISTER who is saying these absurd things, just throwing them out at random to keep the sheep and donkeys on side, and everybody else just accepts them unthinkingly or is shocked into silence.
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You make an excellent point there.
Thinking about it, if 1,000 households or businesses paid on average Eur 1,500 per meter to 8 persons, then 8 persons made an average of Eur 187,500 each in bribery fees. The best Muscat can do is make them declare that income and collect income tax on it.
Actually, the only persons who can sue for the Eur 1,500 per meter are those who corrupted the officials. There are 1,000 of them. I suggest that they should bring a class action.
[Daphne – They have no case either, ciccio. You need a reason to sue. What would their reason be? They paid a bribe and they got their meter fixed in return. No case there. They wouldn’t even have had a case if they paid the bribe and the bribed person failed to deliver, because the illegitimacy of the payment nullifies the presumed contract.]
You are right. The services were rendered in return for the money. The “beneficiaries” cannot get their bribes back.
And the only way left for Joseph Muscat to pocket 1.5 million euros “for the good of the country” is to ask Henley & Partners to sell 3 more EU passports, net of commissions, due diligence fees, and fast tracking charges.
Perhaps Enemalta can sue the . . . erm . . . “beneficiaries” for the electricity they consumed and didn’t pay for. If this can be calculated, that is.
Agree 100%. In most civilized societies it’s called fraud. And if it cannot be exactly determined how much the fraudsters “saved” by accepting and presumably paying for a dodgy meter then appoint a judge to make the determination..with no appeal rights.
It’s also called user pays..in civilized societies. No judge needed actually, use the average correct bill as a benchmark and apply it accordingly.
The people who paid the €1500 should be prosecuted actually.
But even if we assume only half of them are Labour voters (I would expect a much higher percentage – stereotypes exist for a reason and I see no reason not to call a spade a spade to avoid hurting people’s feelings) that’s probably two or three votes per household.
Small wonder Joey will let them go. That’s corruption too. It’s just another form of vote buying.
I agree, Daphne has made an excellent point, ciccio.
However, I fear that today’s ‘rules and laws’, under this bunch, are ‘out the window’.
The new ‘rule of law’ is what little Joey says it is. Sound familiar?
[Daphne – Why do you keep calling him Little Joey? The man may be short, but he is grossly overweight. So unless you’ve stood next to him at a urinal, Harry…]
I did once, Daphne. He had to stand on a stool: (Three legged type.)
I know my comments annoy him, but where is Giovanni Bonello? He took on the entire establishment over a little prefix in a surname, because he was convinced it was right. So this isn’t?
All true what you said in the article, Daphne, but wouldn’t Enemalta be entitled to sue the employees for fraud and for the loss of income resulting from the tampering of the smart meters? That would potentially amount to a lot more that the money paid in bribes.
And how about Enemalta suing the actual households that benefitted from this fraud?
But even if Enemalta did successfully sue the fraudsters – as you say, the money recovered would still remain within enemalta and not go to the government.
[Daphne – You can’t sue your employees for loss of income AND sue those with tampered meters for the money they owe for stolen electricity. It’s either one or the other. The law does not allow you to get your money twice over.]
Well yes, true. I was only going through the options. I did not mean to imply that Enemalta would actually do both.
The salient point though is that Enemalta might not be entitled to sue for the bribe money, but there should be a case for the loss of income resulting from the fraud.
There remains no doubt whatsoever that the PM is at his best when he keeps his big mouth shut and just gives us his Cheshire cat grin.
Moreover his very finest moments are when he is away on holiday.
I suppose Enemalta could sue for damages. Not quite the same as suing for collection of the bribery money of course, but the property they tampered with belonged to Enemalta and will have to be replaced. I’d like to then see the corrupted demanding that it is the corruptor who should pay the damages and not them. Which they probably would do. What a farce.
The Prime Minister has no inkling when it comes to the legal procedures in cases like these. He does not even see the fact that those who tampered with the meters were not stealing electricity. The electricity was being stolen by those who paid to have their meters tampered with.
Couldn’t the court fine the employees for the equivalent amount pocketed?
Also, there is something very wrong with the PM’s and energy minister’s reasoning that the 1,000 tampered meters are responsible for the 30m euro theft from Enemalta last year alone.
In part maybe, but if that were true each meter would have under-read by an average of 30k euro per year.
Whose household would consume an average of 36k (+20%) per annum? Are the 1k metres all installed in very large businesses?
Excellent point made here about the amount of electricity stolen on average per tampered meter, same point also made by G. Schembri below.
In fact, I would say that even the amount paid for the tampered meters would have varied depending on the ultimate amount of annual benefit to the “beneficiary.”
It is possible that some of the “beneficiaries” made savings amounting to twice the average of Eur 30,000 – amounts in excess of Eur 60,000 – while others saved a few thousand Euros at best.
So among those “beneficiaries” there must be some real “sharks” – I’m borrowing a term used by the prime minister and his Minister of Energy.
What other “sharks” is the prime minister looking for?
I hope that none of those “sharks” has been showing public support to the prime minister during or after the electoral campaign.
The Minister claimed that 30 million euros of electricity were stolen in one year.
Therefore, if 1,000 meters were tampered with, it follows that each meter “stole” an average of 30,000 euros of electricity consumption.
It hence follows that these cannot be households but must be hotels, industries or businesses.
And we now know that the Labour government is currently very close to these entities and it will not taint its relationship with them. That is why they will not be arraigned in court but have been given a way out.
I’m positively sure that while the Government/Enemalta cannot file a lawsuit against the culprits, compensation/restitution to the injured party (i.e. Enemalta) may still be ordered by the Court of Magistrates (Criminal Judicature) in a case of fraud/bribery/extortion instituted ex officio by the Police.
This prime minister’s ethically timid. Abstraction causes his brain to enter a loop.
Significant that his logic concludes the bribe money should be government’s:
Hey, we’re the ones who should get that, clientelism and corruption state sanctioned, by default ours.
In this scam, when a unit is tampered with to reduce a house/office’s overall electricity bill, who’s paying the difference, because surely someone must be? How does it work?
Brilliant, Daphne. I think the money paid as bribe can only be taken back by the courts, as fines.
Correct me if I am wrong, but Enemalta does have a right to the money it did not collect as a result of electricity stolen by the Energy Beneficiaries.
[Daphne – Obviously it does. It has provided people and businesses with electricity and those people and businesses didn’t pay for that electricity. So Enemalta is entitled at law to claim payment for what was consumed FROM THOSE WHO CONSUMED IT.]
What I find very interesting is that Muscat does not seem interested in getting them to pay….it does make one question why…
So the prime minister is planning to recover revenue equivalent to the stolen electricity by allowing the corrupt people who bribed Enemalta officials to pay it back with a 10% penalty and also pay to have a new meter installed.
But then he also wants to get hold of that bribe money, which he considers rightfully ‘his’.
Unbelievable.
There is something odd in the numbers reported, just simple math that doesn’t seem to work out right.
This theft has been said to cost Eur 30 million, which is in turn said to be 10% of all electricity sold.
So we are led to believe that the tampered meters of 1000 people, being less than half a percent of the population, reporting 20% of what they should have somehow make up 10% of the country’s electricity consumption.
Even if they each consumed 10 times as much as the average household and paid nothing at all it would still be barely 5% of domestic consumption, let alone the total consumption including industry and commerce.
Looking at it another way, those consumers with tampered meters had to consume over Eur 35,000 worth of electricity each to make up the 30 million.
You’re assuming the tampered meters were in households, not in hotels, factories, and other commercial establishments.
The bribe amount alone suggests that, in the main, it wasn’t paid by householders but by those who stood to make rather large savings.
What if the ‘consumers’ (to quote the prime minister’s choice of terminology) say that they did not know their meter was tampered with? Would it not be difficult to prosecute them due to lack of evidence?
If the Prime Minister thinks that the bribes paid are monies to which his government or Enemalta has a legal right, then it is no surprise that bribing is legitimate in Muscat’s warped thinking as long as it is called something else.
A pardon for those who corrupted Enemalta technicians and stole electricity, but legal action against those parents who didn’t pay truancy fines – dan gvern tas-serjeta.
Brilliant argumentation.
I am not lawyer but I thought that something was not quite right in Muscat’s claims.
Neither the government nor the corporation has a legal claim on the money obtained by bribes to defraud itself.
Giving them a prison sentence, interdicting them and getting them to pay tax on that income should be more then enough as punishment and as a warning for any public official contemplating such illegalities.
In the meantine, the corporation should reclaim its lost revenue from the crooked customers, fine them for bribing a public official and get them to pay for a new meter.
Congratulations, Daphne, on yet another good critical reflection which reveals the rushed conclusions of an incompetent Prime Minister. Joseph Muscat still needs to understand that he is not above the law and definitely not a legal expert.
In Maltese we say ‘Aghti l-hobz lil min jaf jieklu.”
Muscat meant and understood perfectly well what he said. He believes it is the prerogative of the prime minister to exercise absolute power. The notion of checks and balances is alien to him.
Joseph Muscat spent years repeating his promise “inrahhsu l-kontijiet tad-dawl.”
How could those 1,000 “beneficiaries” be blamed if they sought to lower their bills?
Quite clearly, they did not believe Muscat could lower their bills.
When are the ones at the topmost point of the corrupt triangle going to be arraigned? Or will the top-most one be pardoned as a whistleblower?
I am now thinking – could it be that these employees also tampered with other unsuspecting persons’ meters (increasing consumption) to cover-up the deficit in revenue the meters of the ‘beneficiaries’ will create?
All Enemalta employees, persons and businesses involved in this scam should be named, shamed and made to pay for the consumption stolen with interest as well as any penalties stipulated by law.
They should all also be charged in the criminal court. Hands off, PM – the police and courts should handle this without any political interference whatsoever.
What is it with Muscat and his promises about money spending?
It’s always ‘for the good of the country’, ‘for social benefits’ and other similar vague ideas. He’s really starting to sound like a Chinese official obsessed with social stability.
Why doesn’t he ever mention investment and jobs? It’s scary.
While on the subjects of China, this is what our Chinese friends have been up to lately.
http://www.economist.com/news/china/21596571-party-purges-free-thinkers-can-it-contain-free-thinking-dont-think-just-teach
Muscat didn’t mention economic development and jobs because he has no plans for any. The man who never faced competition at home – or ever had to buy his own home – has no insight into the anxiety of economic uncertainty or the delayed gratification of working for reward.
Muscat became prime minister not because he thought he could make a good job of it but because he rather facncied himself as a player on the world stage (ahem). Shame he made such a hash of it once he got there. In his own immortal words, the king is naked:
http://www.weforum.org/sessions/summary/future-europe
Daphne, recently you’ve discussed the issue of animals in the eyes of the law and you very clearly said that the killing of an animal is not a crime.
I wonder whether you can comment about this latest case involving the case of a man shooting his dog.
What is this man being charged with exactly? It really doesn’t sound like a case of cruelty and yet the magistrate has said that she might give the maximum penalty of one year in prison.
A big dog became unruly and hard to control. Its owner decided to kill it with one straight shot which killed it instantly. It doesn’t sound very different to the killing of animals by a veterinarian or other animal professional. I can’t understand what he was charged with.
The man killed an animal which is not legally protected for environmental reasons. What’s more, he seemed to have a perfectly good reason to kill it. He was acting in self-defence.
Did some animals gain new rights while we were not looking? Are the courts stretching the definition of animal cruelty? Are some animals being treated more equally than others? Is there anything I’m missing here? Is the man being charged with owning a gun illegally or some other similar misdemeanor and it is only Times of Malta which has skewed the issue and turned it into one about animal rights?
I’m really confused.
http://www.timesofmalta.com/articles/view/20140217/local/police-to-arraign-man-who-shot-dog.507220
Completely wrong. http://www.lexology.com/library/detail.aspx?g=47915899-f752-44c9-9540-1060c86c1def
Maybe you should have done some research and talked wth real lawyers. But then we know the shallowness. Journalism at it’s worse – misinformation at its best.
[Daphne – Ryan, I think you need to sit down with a ‘real lawyer’ and have him or her read this carefully to you while explaining the concepts and what they mean. This is not the way to understand the principles which underpin laws – by Googling random phrases on the internet to bring up promotional articles by law firms.]
Should we expect better from a criminal organisation such as the Labour Party. Labour was and remains the natural home for the wayward.
Thieves and corruptors are cosily hidden from public eye and “invited“ by the Prime Minister to square things up to escape prosecution.
Meanwhile, Daniel Holmes has been languishing in jail for years for just smoking pot on his own. He stole nothing, corrupted nobody, hurt no one. Malta is morally corrupt and this government is sinking in a quagmire of its own making.
Mr. President, free Mr. Holmes now for decency`s sake, before you go.