Like any other journalist who has asked the police questions not concerning their annual parade or PR exhibitions of their dog unit, I too got my share of standard replies like the one Times of Malta quoted this morning in response to its questions about Joseph Muscat.

Are the police investigating Sunday’s revelations that Joseph Muscat received payments from a company paid by the hospital contractors after he allowed VGH to be bailed out by new owners? Can’t tell you, the police replied. See article 87 of the Police Act.

In simple terms article 87 prevents the police from sharing with the press names of people they suspect of a crime or names of people they’re investigating for possible involvement in a crime.

Intuitively, a law that imposes opacity is suspicious for someone who is in the business of casting the bright light of transparency on the conduct of authorities.

But there’s a flipside to the law that needs to be acknowledged. Let’s say that for purely vindictive and partisan reasons the police decide they want to harm the reputation of a politician they disapprove of. Let’s say Giovanna Debono to name someone at random. They have no evidence she’s done anything wrong, nothing that could withstand scrutiny in a proper court anyway. Were it not for the ban on publishing names of suspects, all the police need to do is formally announce that Giovanna Debono is their named suspect in a very serious crime. And they leave that hanging. For ever.

In effect this is the mediatic equivalent of the power of the old kings to throw someone in the Bastille on the back of a claim of suspicion of some crime and lose the key without any obligation to charge their detainees.

On physical detention we have a time-limit of 48 hours to charge or release. After charges and a face value committal there’s a 30-month limit on preventive custody to indict or release.

These time limits look for a balance between the right of the accused to be presumed innocent until proven otherwise and the need of society to stay safe while the case against the accused is made.

Branding someone as the suspect of a crime by a simple police statement doing so is the 21st century equivalent of the Bastille. The police accusing a ‘suspect’ of having committed a murder say, or even corruption or embezzlement, without charging them, without any time limit to do something about the accusation levelled against that person in the media, is the 21st century of losing the key.

Anyone who is still presumed innocent deserves protection from the risk of this sort of abuse which justifies the ban on informing the press about the identity of suspects before they are charged. What we’re missing is the equivalent of arrest or preventive custody in the detention analogy above. We don’t have rules to counterbalance the interests of the accused with the wider public interest.

Because misguided, incompetent, or compromised, and partisan police can do more than harm the reputation of a politician undeservedly. They can also undeservedly protect the reputation of a politician who deserves to be charged.

Ian Abdilla was happy to charge Giovanna Debono’s husband on the back of evidence that did not withstand and never could have withstood court scrutiny. Was the same motivation that drove him to do that the same reason why during his tenure and even after his departure, Konrad Mizzi, Chris Cardona, Carmelo Abela, and Joseph Muscat were never charged with any crime?

We cannot know. Because the police are, ironically, obliged by law not to give the public any account on whether they investigated these people at all.

That shows us that we need to change rules to achieve a balance between the interests of the accused and the interests of the community. The loss of that balance, in either direction, is a failure of the rule of law. It is preferable to allow 10 guilty people to go free than to wrongly punish an innocent person. But if all guilty people go free, there’s no point in having laws at all.

Take a look, for example, at the Italian model. I’m keeping things simple here both because I’m not anything like an expert and because what we’re looking for here is a comparison, perhaps even a superficial one, with what we lack in our own rules.

The Italian press refer to something they call “the register of investigated people” which is actually a misnomer that is recognised in lay common parlance.

Prosecutors however do keep a register where they list all alleged crimes that are either noticed by police or other law enforcement investigators or are referred by other intelligence or state agencies or are reported to the police whether by a complaint from the victim or evidence given by a witness.

An entry in the registry must include a list of the crimes that are believed to have occurred together, when these are known, the list of people suspected of having perpetrated the crimes alleged.

Once names are listed a clock starts ticking. On most crimes the clock expires within 6 months by when the prosecutor must decide whether to “archive” the case, file it away and do nothing more about it, or to issue charges against the named suspects. More serious crimes have a time limit of one year. Crimes concerning the mafia or a very long list of suspects have a time limit of two years. There is a limited possibility of extension of these time limits but within two and a half years the prosecutor must charge a suspect or strike them off the list.

For the same reason that the Maltese police is not allowed to share with the press the names of people they are investigating, generally speaking the names on the Italian register of reported crimes are also secret. They are especially secret in the case of serious and mafia crimes not only because of the prejudice that may be caused to an innocent person but also because of the damage information like that can cause to ongoing investigations.

Italian law goes beyond the specificity of a press ban. If a person wants to know if they are a suspect and calls the prosecution service to ask, not only do they not have a right to know the answer, the official procedure is to lie to them and tell them “no, you are not on the register”. That helps avoid people drawing conclusions from distinguishing that sort of answer from “we are not allowed to tell you if your name is on the register”.

Suspects (and victims or people who report a crime) are informed of their inclusion in the register after a decision to prosecute is taken to give the suspects enough time to hire their defence.

In Italy therefore Times of Malta would have been just as unable to get an answer from the police on whether they are investigating Joseph Muscat on the back of last Sunday’s revelations.

If you are not expecting a ‘but’ you haven’t been paying attention.

But. If Italian law on the registration of suspected crimes applied here, we would by now know if the prosecutor has decided to charge Konrad Mizzi and Keith Schembri over the Panama Papers on the back of reports filed against them much more than two and a half years ago. We would be approaching that time limit for the reports against Edward Scicluna, Konrad Mizzi, and Chris Cardona over VGH as well. And that’s assuming that the crimes connected to the Panama Papers and the hospitals sale would be classified as mafia crimes, which admittedly would not be unreasonable.

If the prosecutor decided to file charges in those cases, we’d now be following the trials of the accused. If the prosecutor decided not to file charges and archive those cases, the victims of those crimes (and in cases of corruption we are all victims) would be able to challenge that decision in court and subject it to judicial review.

In other words, as citizens, after we’re asked for a clearly pre-established, objective, and measurable amount of time to patiently allow the institutions to function, even in secrecy, we are, at some point, given account of what’s been done.

In our case, secrecy is perpetual if the police and or the prosecutor decide to do nothing about something they should be doing something about. For all we know they would be going on holiday to watch football with the criminals they are supposed to prosecute while issuing charges against people they have a personal reason to victimise.

Thank you then for article 87 of Malta’s Police Act. It’s meant to protect us, the good guys, from the risk of abuse. But no thank you for using it to allow the bad guys to get away with their crimes. Here too, it’s time for change.