A news item report that perhaps was not given enough prominence and coverage, despite its far-reaching implications, concerned the Commissioner for Standards in Public Life’s dismissal of a request by former election candidate Arnold Cassola. Cassola called for an investigation into the refusal by the CEO of Malta Enterprise and the chairman of the State Aid Monitoring Board to supply information requested by the auditor general in the investigation into the government’s hospitals concession to Vitals/Steward.
The request and the dismissal themselves raise more questions than they answer, and they definitely warrant a serious consideration of whether any related legislation needs to be amended for the sake of truth, transparency, and, above all, good governance and accountability.
Cassola had originally based his request on the premise that the two, Kurt Farrugia and Paul Zahra, were politically exposed persons (PEPs).
As such, therefore, the commissioner dismissed that request since both were not MPs or persons of trust as defined by the law on standards in public life.
Perhaps Cassola did not make the right choice in submitting his request on that premise and qualification, but, then again, what is meant by a PEP? As far as the commissioner’s dismissal of the request is concerned, on the other hand, strictly speaking, the reasons given were correct at law.
Yet, even here, one ponders whether the law as it currently reads is in need of an amendment to cater for the possibility of investigating what apparently amounts to a blatant breach of good governance and accountability. Considering the issue in question, let me put things in their proper perspective. The auditor general requested vital information from Malta Enterprise and the State Aid Monitoring Board, information related to the hospitals’ concession to Vitals/Steward that we now can undoubtedly consider the greatest fraud ever to be suffered by the Maltese state.
The law clearly empowers the auditor general to have free access at all reasonable times to such information from officers and other personnel of government departments or offices, or of bodies subject to his audit, that may be required by him for the proper execution of his functions according to law.
We do not know why the CEO and the chairman of the two bodies in question refused to supply the information requested, but whatever reasons there might have been for such a refusal, they can never justify it, and, as such, it was a brazen affront to the auditor general’s authority.
It was an even greater affront to all honest and law-abiding citizens who paid taxes that were subsequently squandered on a national project doomed to fail from the very outset. These citizens have every right to know the whole truth about what really went on behind their backs.
It is simply not acceptable that vital information be withheld from the public domain.
This shortcoming should warrant an amendment to the auditor general and national audit office law such that the auditor general is empowered to impose effective sanctions and measures to ensure that any requested information is forthcoming.
It is simply not acceptable that vital information be withheld from the public domain- Mark Said
I find the question of whether Zahra and Farrugia are PEPs somewhat irrelevant to the matter at hand, and, just for argument’s sake, it is good at this stage to briefly define who might be a PEP.
The Prevention of Money Laundering and Funding of Terrorism Regulations define such persons as natural persons entrusted with a prominent public function other than junior or middle-ranking officials. Natural persons include immediate family members and close associates.
Perhaps what Cassola had in mind was that, due to their prominent status within their respective public entities, the CEO and the chairman were bound to adopt appropriate measures when establishing a business relationship and conduct ongoing monitoring to ensure that they capture suspect or illicit changes.
There is another argument that must be considered.
The commissioner rightly dismissed the request since we are not talking of MPs or persons of trust. Irrespective of how the CEO of Malta Enterprise and the chairman of the State Aid Monitoring Board are appointed, this latest incident should call into question whether the standards in public life law ought to be amended in the sense that, as article 3(2) thereof provides, the minister responsible for justice extends the investigative powers of the commissioner to such persons or categories of persons.
The UK commissioner counterpart, for example, has the power to investigate such categories of persons to ensure that high expectations of those who serve on the boards of public bodies and the way in which they conduct themselves in undertaking their duties are met with conduct above reproach.
I believe that the National Audit Office had already called for its functions to be extended to audit and report on any persons or corporate bodies that receive public funds, irrespective of whether they are government-controlled.
It is time that the auditor general be empowered to look into how public funds are used at the beneficiary level. The inappropriate use of such public funds has an impact on economic, efficiency, and effectiveness considerations, as well as raising compliance concerns in terms of adherence to funding agreements.
Let the institutions work!
Mark Said is a lawyer.