Robert Aquilina, then president of the NGO Repubblika, was given access to the report of the magisterial inquiry into Pilatus Bank. His sources, as he stated in court, were public officials from various institutions. Being a responsible activist, he went out of his way to protect these sources. Not only did he refuse to name them but he also copied relevant sections of the inquest document in his own handwriting and presented that as evidence.
These extracts showed that the inquiring magistrate had directed the police and the attorney general to take criminal action against several individuals. Since no action was taken, Aquilina instituted court action asking the police commissioner to act.
Magistrate Nadine Sant Lia dismissed Aquilina’s claim. Her dismissal is not the subject of this commentary. Instead, I will discuss a different aspect of the court’s sentence. The magistrate said that whoever leaked the report to Aquilina was committing an illegality. She used the harshest of words to condemn those people. She also strongly criticised the police for not trying hard to find and prosecute the sources. The magistrate ordered the commissioner of police to do so now.
While the police should be condemned for not proceeding as directed by the magistrate responsible for the Pilatus inquiry, they should be commended for not trying to persecute those who leaked the information.
Truth be told, this is not the first time there has been an attempt to catch those who leak information. Electrogas had made a complaint asking the police to investigate who leaked the Electrogas information as this allegedly was a breach of the law. There is a pending magisterial inquiry to find the source of the leak. I do not know how the inquiry is progressing.
Given that without this leak the Electrogas scandal would have remained hidden, law or no law, the common good obliged these sources to leak the documents. Instead of holding an inquiry to catch them, they should have been given Ġieħ ir-Repubblika.
Last May, MaltaToday showed a lot of courage, public spirit and journalistic nous when they published the report of the Vitals inquiry in its entirety. Even if what MaltaToday or its sources did was in breach of the law, we should all thank MaltaToday for making public what the responsible authorities wanted to remain hidden.
Whoever leaked the Pilatus inquiry report to Aquilina was probably also acting against the law. Such action does not make them culprits but public-spirited individuals serving the public interest, not to say heroes. The culprits are those who abused their position at Pilatus or in government administration, and were so labelled by the Pilatus inquiry, and not those who courageously risked and endangered themselves to reveal their criminal acts.
The leak of the Panama Papers in April 2016, the Paradise Papers in November 2017 and the Pandora Papers in October 2021 was probably illegal. Those who did it were stealing documents; but their action is noble and praiseworthy. Thanks to their action, many corrupt politicians and public officials were brought to justice.
Besides protecting journalists, the state should also adequately protect the journalists’ sources- Fr Joe Borg
In 1971, The New York Times published The Pentagon Papers revealing the top-secret documents exposing the USA’s government illegal political-military involvement in Vietnam from 1945 to 1967. The journalists at the NYT agonised over whether or not they should publish these documents. They were conscious that the publication could land them in prison and endanger the very existence of the paper.
What they did was probably illegal but it was also morally laudable.
Americans and freedom-loving people should be grateful to a source known as Deep Throat, later identified as FBI deputy director Mark Felt. Without the information he supplied, The Washington Post would have never been able to nail president Richard Nixon for his criminal involvement in the Watergate Scandal.
Let me once more stress the point: breaking the law is not a matter that one can take lightly. Absolutely not. Whenever the law is broken frivolously or criminally, those guilty should be exposed and punished, whether they are journalists or not. The Guardian, for example, had exposed the phone-hacking scandal that led to the closure of the News of the World in 2011. The adjudication of the many cases of illegal phone hacking committed by the News Group Newspaper kept on dragging until Prince Harry registered his victory in court this January.
This brings me to another point. If stealing a document is illegal, a journalist who accepts it and publishes it is also doing something illegal. However, the state recognises the great value of responsible investigative journalism as the safety valve of democracy. Journalists are obliged to protect their sources and the courts are expected to safeguard them from prosecution.
If the public service given by journalists is defended, why is the public service given by the sources not similarly defended?
Nick Davies, The Guardian journalist who exposed the phone-hacking scandal referred to above, made an interesting point in his deposition to the Communications Committee of the House of Lords in January 2012:
“I do not think journalists have any right to break the law, other than a normal citizen has ... I think all citizens have a right of conscience in extremis to say, ‘This is so important that I’m going to break the law’.
“If the only way to stop the paedophile kidnapping the child he has abducted is to hack his voicemail because I cannot get to the police and I am going to be able to find the child, it is morally right you are going to do it and you would expect the courts to find in your favour.”
Instead of prosecuting those who leaked the magistrate’s inquiry report to Aquilina, these sources should be commended. Besides protecting journalists, the state should also adequately protect – and this is manifestly not sufficiently provided for by the Whistleblower Act – the journalists’ sources.
If this is done there will be no duty to break the law.