It’s not a pardon – it’s immunity from prosecution

Published: January 20, 2015 at 2:56pm

george farrugia

I’ve spoken to a couple of senior legal eagles about this pardon business, because the word didn’t seem quite right.

Pardons strike me as something you can get only when you have already been convicted of a crime. And yet everybody and his brother, from the newspapers to the political parties, to defence lawyers to the prime minister himself, is using the word ‘pardon’ and I’ve got caught up in it myself, much to my chagrin.

Do suspects who turn state’s evidence receive a pardon? I thought the correct term, reflecting the proper process, is ‘immunity from prosecution’. And that is in fact the case.

George Farrugia hasn’t received a presidential pardon because he hasn’t been convicted of a crime. He has been given immunity from prosecution, which is entirely different. The confusion has come about from the apparent use of the Maltese ‘proklama’ to cover both without distinguishing between the two.

When the state gives a witness immunity from prosecution, that immunity cannot be lifted. The legal eagles to whom I spoke say that they have no indication that this has ever happened, certainly not in Malta or the civilised world, as far as they can see.

The whole point of immunity from prosecution is that the witness is permanently secure, confident and unafraid in his immunity. If he then lies or withholds information, that is a separate matter.

But witnesses who have been given immunity from prosecution cannot be put in a position where they live the rest of their lives fearing that immunity will be lifted on some excuse by a rogue head of state acting on an immoral government’s ‘advice’ for some ulterior motive.

If a witness knows that his immunity from prosecution might be lifted, he can be – and, as we have seen in this case, will be – threatened with the removal of that immunity.

Threatening a witness by whatever means is in itself a criminal offence. By threatening George Farrugia with the removal of his immunity from prosecution, the prime minister is, arguably, committing a crime.

The lifting of immunity in itself puts the government “on very thin ice” (to quote the exact words of one of those to whom I spoke), but using the lifting of immunity to threaten a witness is a separate matter. Threats to witnesses are in themselves criminal.

There is something else I’d like to point out, which occurred to me only this morning when I was thinking about who could have a vested interest in ensuring that George Farrugia stops talking under immunity from prosecution.

His brothers should have been charged with corruption almost two years ago. The investigator said this to the Public Accounts Committee a couple of months ago. Manuel Mallia was their lawyer, but when Labour was elected to government and he was made Police Minister, the investigator was removed from the case and the Farrugia brothers were not charged and prosecuted.

Now that Manuel Mallia is no longer Police Minister, the likelihood is that they will be charged unless there are further pressures to stop the process.

As their sibling, George Farrugia is not a compellable witness. Brothers and sisters, parents and children, husbands and wives, cannot be made to testify against each other, though they may do so if they wish.

But even if George Farrugia wishes to testify against his brothers in the police case against them (if and when it happens), he has a major disincentive in that anything he says may be used against him once he has no immunity from prosecution.

So without state immunity from prosecution, George Farrugia is not going to testify against his brothers even if has no wish to claim exemption as a sibling.

The only way he is ever going to speak the facts about his brothers on the witness stand, if they do not continue to be protected as they were when their lawyer was Police Minister, is if he is protected by cast-iron immunity from prosecution.

Thank you, Sherlock, but right now I think those who most need to have George Farrugia’s immunity from prosecution lifted are his brothers, who are facing prosecution themselves.




19 Comments Comment

  1. etil says:

    Oh goodness gracious me – a chap gets suspended because be accepted football tickets ?

  2. Jozef says:

    A ‘collaboratore di giustizia’ is promptly labelled infamous by the ones who won’t accept to collaborate with the State and its sole expression; laws.

    Infamy is the opposite of social standing.

    Saviour Balzan pretty much similar to the ones who disparaged Falcone insisting the mafia as he described it in spirit and intent, doesn’t exist.

  3. Jozef says:

    And is it up to the Prime Minister to take on the President of the Republic?

    Burokrazija zejda up a notch.

    • Observer says:

      Not unless the President knows her way in the specifics of a presidential pardon – or, failing that, she is guided by real legal experts.

  4. Eddy Privitera says:

    Have you gone mad or something ? What has been revealed in Malta Today was not some “excuse by a rogue head of state”, but emails sent by George Farrugia. And yet you hint that when saying that if the police find that George Farrugia had witheld evidence, the government would considerr withdrawing the Presidebtial pardon. Or the “immunity from prosecution” , the prime minister has committed a drime !!!!

    UNBELIEVEABLE, but not surprising, coming from Daphne !

    [Daphne – What is unbelievable, Mr Privitera, is a man who defended the Labour Party all through the GROSS corruption of the 1970s and 1980s now acting like a shocked nun about two football tickets. Your moral and ethical standards have shot up quite a lot, haven’t they.]

    • Observer says:

      ‘Dear’ Eddy, have you understood what this is about?

      I very much doubt it. Please read it a few more times in order to measure the import of its content.

    • wow says:

      Dear Eddy,

      I’m sorry but you are out of line. George Farrugia is not the PN nor part of the PN or of any PN government. His behaviour doesn’t make the PN corrupt.

      There is absolutely no indication that any PN minister or prime minister was bribed. If there was indeed corruption of that sort, then what would have kept the police from immediate action, especially under a Labour government?

      We can talk about ethics forever, but questionable ethics do not constitute a crime, bribery or corruption.

      We cannot say the same about Lorry Sant and Labour’s “bella compania” in government in the 1970s and 1980s. Now that really was corruption, blatant and outrageous corruption.

      Enjoy your retirement in peace, Eddy, reaping the fruits of 25 years of PN governments.

      In your place I would question the timing of the publication of those emails about two football match tickets, by Saviour Balzan’s newspaper, when in parliament we are supposed to discuss the energy deal.

  5. Charles Mizzi says:

    I’m not an expert but whatever he got was granted under Article 93 of the constitution and the only applicable point in that article is the following:

    The President shall have power to –
    (a) grant to any person concerned in or convicted of any
    offence a pardon, either free or subject to lawful
    conditions;
    ..

    The other points refer to cases in which someone has already been convicted. There is no mention of immunity from prosecution in that article either.

  6. Edward says:

    Sounds to me like they were using the word “pardon” to subtly suggest a corrupt nature of the PN, make them look like they thought of themselves as benevolent leaders who “pardoned” those they showed preference to and discriminate against those they don’t like.

    I really disagree with these Labour tactics. The more they trumpet this message of “The PN are elitist and fascist” the more they make it impossible for Malta to succeed.

    • H.P. Baxxter says:

      And the Nationalist Party are not helping themselves. They still carry the Pavlovian tag of corruption in people’s minds. Instead of taking advantage of their electoral loss to make a clean sweep and herald a new party and a new way of doing politics, they closed up on themselves and retreated to their HQ.

      They need openness and transparency. About everything. Including – especially – who they are in debt to and by how much. It has been said that the truth sets you free. The Nationalist Party certainly don’t look like they’re free. They look like they’re scared of some terrible truth being revealed.

      Labour, of course, give us the full frontal, in-your face version of corruption. So they are seen as the ones telling the truth, and the ones who have nothing to hide.

      I don’t know who is advising the Nationalist Party but they should be sacked. Fancy not giving any advice on the psychology of politics.

      • carlos says:

        Baxxter, the Nationalist Party never did one thing right when in government, in your view. Now even in Opposition it seems to be the same. Oh my goodness, why is it that people like you don’t take the plunge and go into politics?

      • H.P. Baxxter says:

        Oh yes they did a big thing right: EU membership.

        The reason I don’t go into politics is that I would only obtain fifty votes max. That’s fifty, not fifty per cent.

  7. Kollox Kontra says:

    “If he then lies or withholds information, that is a separate matter.”

    So if somehow Muscat manages to convince himself (or a court?) that Farrugia lied or withheld information, what then?

    Because I am sure that is where he is heading.

  8. Ta'Sapienza says:

    Makes perfect sense.

  9. Gobsmacked says:

    The truth is that we might even get nearer to the identity of the “whistleblower” himself, which might be a scandal in itself. Interesting times ahead indeed.

  10. Just Me says:

    http://www.independent.com.mt/articles/2015-01-20/local-news/Lack-of-equipment-in-Mater-Dei-corridor-to-blame-for-elderly-woman-s-death-PN-6736129100

    Last time Dr Joseph Zarb Adami gave a press conference after the untimely death of a patient (when the helicopter could not land because of an irregularly parked car) he said that the patient would have died anyway. One wonders what he would have said if it was a close relative of his.

  11. Matthew S says:

    Great news just out.

    After decades of a rapidly falling tiger population, the Indian government now reports that its seven-year-old conservation programme is paying dividends.

    Over the past three years years, the tiger population has increased by 30%; from 1,706 in 2011 to 2,226 in 2014.

    Conservation does work, but it requires effort, initiative and proper enforcement. Vote No in the referendum and we’ll have more birds flying over Malta in a few years time.

    http://www.bbc.com/news/world-asia-30896028

  12. Veritas says:

    The problem with immunity from prosecution is that it is conditional and there is no established procedure of what is to be done if that condition is allegedly broken.

    Historically it was the King’s prerogative and therefore his decision, nowadays we live by the rule of law, which has not foreseen this circumstance. As the dean of the faculty of law has stated, “interesting”.

  13. David says:

    The preregoative of mercy or pardon granted by the President of the Republic of Malta can be granted to any person “concerned in or convicted of any
    offence”. Therefore persons undergoing criminal procedures and even persons suspected of committing an offence can also be pardoned according to the Constitution of Malta (Article 93(1)(a)).

    In the UK the pardon of a witness for the prosecution is often called King’s or Queen’s evidence. It seems logical that if such a pardon is subject to conditions which are not adhered to by the witness, such a pardon can be revoked.

    In the US there are two types of similar pardons, one absolute and the other limited as the witness just can’t be convicted on the baiss of his own testimony. The former is called transactional immunity, while the the latter is called derivate use immunty.

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