As head of the civil service, Mario Cutajar is in duty bound to implement government policy and also defend it. But he cannot defend the indefensible and neither term as “a cultural matter” what top constitutional experts deem to be a dangerous practice.
Whether employing people on a ‘position-of trust’ basis is “cultural”, as Mr Cutajar, the Principal Permanent Secretary, put it, a tradition or a long-standing practice, the Council of Europe’s European Commission for Democracy Through Law (Venice Commission) still warns that “any exception to procedures that provide for appointments on merits are a danger to the quality of the civil service, which is the backbone of a democratic state under the rule of law”.
After a two-day visit to Malta late last year, the Venice Commission noted that appointing persons of trust “seems to be an old practice”. It quoted the Public Service Commission saying in a 2011 report: “As a matter of long-standing practice, staff in ministerial secretariats are recruited directly on the basis of trust, without resort to calls for applications.” However, the public service staffing and discipline watchdog still noted instances when such appointments were used to fill administrative, managerial or technical positions.
A practice meant to serve a specific purpose was systematically abused to the extent that, eight years after the PSC report mentioned above, it emerged that gardeners, drivers and even dog handlers have been recruited on a position-of-trust basis. According to the Venice Commission report there are about 700 “persons of trust”.
In 2011, the PSC had already pointed out that the Constitution makes no provision for the engagement of staff in positions of trust, raising questions on the legality of such practice even in the case of ministerial secretariats. It had concluded there was need for mechanisms ensuring that appointments on trust are legal and not used to bypass the merit principle.
The Venice Commission feels a constitutional amendment should be made and legislation enacted that allow the appointment of persons to positions of trust but also set limits in terms of numbers and roles. “Only activities directly related to the exercise of power should be considered as a valid exception from the general system of appointments in the public service,” it commented.
According to Mr Cutajar, the procedure was employed in cases where personal trust was “a significant element of the employment relationship”. That is indeed a very convenient argument to make because one can argue that if one pays somebody to do a job that person has to be trustworthy. But, of course, that is far from the spirit of the position-of-trust system.
But Mr Cutajar went further to justify the widespread engagement of ‘persons of trust’. Individuals employed as drivers or gardeners were among the persons of trust for a long time and it is not a development that happened during these last years, he argued, even invoking “the established thinking in Malta”.
So what you do is find a loophole in the law or even a method that is not exactly covered by legislation, turn it into a practice, a culture, and voilà, you have set ‘common law’, which you can then use as you wish, even to buy votes.
The persons-of-trust procedure is yet another example of how good intentions are turned by politicians into a ‘culture’ of abuse.
This is a Times of Malta print editorial
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