Malta is currently witnessing an unprecedented constitutional crisis. The country is at a standstill. The machinery of government has come to a grinding halt. Parliament betrayed the people when it went on an extended holiday when it was most needed – it will return when the crisis has defused itself. Business has skydived. Public unrest has become the order of the day.
Serious questions are being raised about the exercise of the investigative role of the police and how the government has been complicit in the violation of the law. The rule of law itself is at its lowest ebb.
The Prime Minister continues to exercise powers of an unfettered elected dictator. He recently came across as the person leading criminal investigations in lieu of the police, deciding single-handedly (except for one instance where he could not do otherwise) without reference to Cabinet on pardons to be granted for serious offences.
Those same persons whom he appointed ministers, parliamentary secretaries and president are not taking proper action to redress this constitutional crisis. Ministers and parliamentary secretaries have not informed the President that another government MP should assume the duties of prime minister. Nor did the President summon the Labour parliamentary group to confirm or otherwise whether the Prime Minister still enjoys the support of his own group.
The civil service is also in the Prime Minister’s lap with its head being in receipt of two salaries at once and allowed to breach the Constitution with impunity through his unorthodox defence of persons appointed to positions of trust when all the world is advising him otherwise, be it the Public Service Commission, the Ombudsman, the Commissioner for Standards in Public Life, the Venice Commission, etc.
All the judiciary are and continue to be political appointees whose appointment, promotion, removal, salary and conditions of work depend on nobody other than the Prime Minister. The independence of the judiciary is extremely weak.
Direct orders continue to be dished out with no proper safeguards in place. Government finances remain very much uncontrolled as evidenced by the audit reports published by the Auditor General.
Pertinent reports of the Commissioner for Standards in Public Life are treated with disdain and, where agreed to, ignored with the censured measure to reappear again.
Certain Ombudsman’s recommendations fall by the wayside never ever to be discussed in the House of Representatives. The citizen is always the end loser.
Backbenchers – contrary to constitutionally established practice in the United Kingdom – are all promoted to the front bench by being given remunerative public offices to silence them without, however, being accountable to the House through the doctrine of individual and collective ministerial responsibility once they are not ministers or parliamentary secretaries.
The doctrine of separation of powers is inexistent: all power is concentrated in the hands of one man – the Prime Minister.
The doctrine of separation of powers is inexistent: all power is concentrated in the hands of one man – the Prime Minister
Members of Parliament are allowed to undertake full-time employment in the public administration in breach of the separation of powers doctrine. Conflicts of interest abound elsewhere and are anathema in the Maltese political discourse.
Only government can sort this out. But there has been no political will to do so. Has the Bonello Commission report of 2013, in its relevant constitutional part, been implemented in full? No. Has the Venice Commission report of 2018 been implemented in full? No. The government claims that it has done so but the 2016 constitutional reforms and the State Advocate Act of 2019 are a parody of these reports.
Has the 2008 Labour Party pledge to enact an Administrative Code been implemented? No. Have all the reports of Moneyval, Greco, the Council of Europe’s Parliamentary Assembly, the EU Parliament’s and Commission’s reports on Malta and of others bodies been implemented to the letter? No, no, and no on all counts.
The current Prime Minister never implemented his pre-2013 electoral pledge to appoint public officers on the basis of merit. Was a call for applications issued when the Principal Permanent Secretary was first appointed? Was a call for applications issued when Permanent Secretaries were first appointed?
Public sector chief executive officers are hand-picked by Castille with no call for applications being issued. There is no transparency in how employment contracts for chairpersons and chief executive officers of public sector entities are negotiated and how certain normally unacceptable clauses to the public interest end up inserted therein for private gain. These contracts are not submitted for review by the Public Accounts Committee or by the Auditor General.
There is no openness in how major government projects have been adjudicated as the government continues to refuse to disclose these contracts on the pretext of commercial confidentiality. The Freedom of Information Act is administered by the public administration in a way so as to deny provision of government held information rather than the obverse.
The Whistleblowing Act still does not extend to members of the Armed Forces. The Financing of Political Parties Act is a dead letter in so far as an effective enforcement machinery is concerned.
Constitutional bodies (the Broadcasting Authority, Public Service Commission, Electoral Commission and Employment Commission) are appointed not in the public interest but half in the interest of the party in government and half in the interest of the party in opposition. The appointment of the chair of these constitutional bodies is discussed between the Prime Minister and the Leader of the Opposition and if no agreement is reached, the Prime Minister imposes his own anointed candidate.
The public service broadcaster is directly controlled by the government of the day and falls under the responsibility of a ministry of government.
Employment with the public sector where the Public Service Commission machinery is easily bypassed is a fertile ground for ministers to dish out jobs to their constituents. Agencies of government – as opposed to public corporations that are answerable to Parliament – are the extended arm of the government of the day enjoying no autonomy, independence and neutrality from government.
Ministers interfere through their secretariats in the day-to-day running of government departments, agencies and other entities falling within their ministerial portfolio putting pressure on public officers to issue permits, licences, authorisations and job opportunities even where not due.
Ministries’ secretariats serve as paladins of clientelism, nepotism and cronyism rather than for drawing and implementing government policy.
Bearing the above and other issues, there is no doubt that if a rule of law impact assessment were to be carried out in Malta the end result would be that Malta severely lags behind and does not meet the standards.
Kevin Aquilina is Head of the Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta.
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