When the Security Service Act was in the making in the mid-1990s, a senior government functionary told a sceptical journalist: “Since we all know wiretapping happens, would it not be better to regulate the practice?” That law ensured the security service could only intercept or interfere with communications if in possession of a warrant signed by the prime minister or the home affairs minister.
It even provided that, in urgent and exceptional circumstances, a senior government official too can sign a warrant, provided the minister authorises it.
Wiretapping, the monitoring of phone and other forms of exchanges by covert means, is a useful tool in combatting crime and corruption. It has had significant successes in Malta, not just in catching hardened criminals but also in exposing corruption in high places and even leading to members of the judiciary who were accepting bribes.
So, one can hardly have a case to make against the use of such an efficient and effective tool. Admittedly, it is a highly contentious practice since it raises compelling privacy and civil liberties issues.
Since the law’s enactment, there have been calls along the years to introduce more safeguards and substitute political by judicial oversight.
Former Nationalist MP and criminal lawyer Franco Debono had moved a private member’s motion in late 2011 asking whether it was time to transfer the authority to issue intercept warrants from the minister “to the investigative or judicial authority”.
A lawyer who served in the attorney general’s office, Mark Said argued in late 2021 that wiretapping is somewhat like a search into the privacy of an individual’s affairs and, as in the case of a search, should, therefore, require supervision by the courts.
Just weeks before, lawyer and activist Manuel Delia brought to the fore another reason why interception oversight should move from the politician to the judiciary. “The Joseph Muscat story tells us that even the highest levels of government are not immune from criminal infiltration,” he wrote.
GRECO, the Council of Europe’s Group of States Against Corruption, which has long been calling for supervision by a judicial authority, expressed concerns similar to Delia’s.
“The influence of the executive on law enforcement authorities, particularly those deciding on the use of special investigation techniques for possible corruption offences, is a key factor in the inefficiency of the Maltese criminal justice system in effectively investigating allegations of possible involvement of PTEFs [heads of government, ministers, and their advisers] in corruption offences,” it said earlier this year.
It is now an open secret that top police officers were keeping criminals updated on very sensitive developments in high profile cases, like the assassination of Daphne Caruana Galizia. We also know that such information was communicated to unauthorised third parties – including suspects – from the highest corridors of political power.
That, of course, gravely negatively impinges on the level of trust citizens should have in the police – and we are not speaking of the ‘foot soldiers’ – and politicians, especially cabinet ministers.
The recent revelations may well explain why the government – already dealing with 101 scandals – keeps ignoring the calls for more safeguards and judicial, rather than political, oversight of wiretapping.
The latest such request was made by Yvonne Farrugia, Malta’s European public prosecutor, who believes such a shift would ensure interception authorisation is free from any political influence.
An effective and righteous police commissioner was among the Labour government’s first casualties in 2013. Its road map demanded, and still does, that all strings are pulled from Castille, even in criminal investigations.