Ethics in Parliament: waiting for Godot?

Standards in Public Life Bill

 

The Bill regulating Standards in Public Life has been pending on Parliament’s agenda for months.

It seems that government is in no hurry to implement its provisions, notwithstanding that this Bill is the result of discussions carried out in a Parliamentary Select Committee under the Chairmanship of the Speaker of the House of Representatives.

The final report of the Select Committee was submitted to Parliament on 24 March 2014. Two months later, on 20 May, a Bill entitled Standards in Public Life Act, 2014 was given a first reading in parliament. It was subsequently published in the Malta Government Gazette on  15 July 2014 and placed on Parliament’s agenda, where – 16 months later it remains .

The Bill seeks to create the necessary structures to ensure that breeches of statutory or ethical duties by specific categories of persons in public life are investigated. Monitoring and investigation will be vested in a permanent Parliamentary Committee, as well as through a Commissioner for Standards in Public Life, who will be appointed subject to the approval of two-thirds of sitting MPs.

Two categories of persons in public life are subject to the provisions of the proposed legislation: MPs (including Ministers, Parliamentary Secretaries and Parliamentary Assistants) as well as those  employed in a position of trust in all areas of the public sector.

The proposed legislation includes updated versions of the Code of Ethics applicable to MPs and members of Cabinet but does not include the Code of Ethics applicable to directors appointed to authorities, corporations and other state-owned bodies that was first published in the early 1990s.

The Commissioner for Standards in Public Life will be able to investigate allegations regarding unethical behaviour as well as the veracity of declarations on income and assets held which are made by MPs, members of Cabinet and persons employed in a position of trust as detailed in the applicable Codes of Ethics or rules made under the Public Administration Act.

The Commissioner will not be able to investigate past transgressions retrospectively. Moreover, it is proposed that there will be a time limit of two years for action to be taken on present day breeches.

In a recent interview the Speaker of the House said he is not satisfied with MPs’ assets declarations. He also said that, as things currently stand, he does not have any authority to investigate these declarations.

The Bill currently pending on parliament’s agenda assigns this specific authority to the Permanent Select Committee, which will be chaired by the Speaker, and to the Commissioner for Standards in Public Life. Cases such as those that recently surfaced concerning former Health Minister Joseph Cassar could be considered and acted upon within this proposed framework.

An investigation has to be concluded within six months from the receipt of an allegation. When the Commissioner for Standards in Public Life has concluded an investigation, he will submit his conclusions – as well as appropriate recommendations – to the Permanent Standing Committee. The Committee will either act on the recommendations or else opt for further investigations.

In respect of non-MPs, the Committee will either take a decision, or, if the matter so requires, refer the case for further investigations by the Commissioner of Police or the Permanent Commission Against Corruption. In respect of MPs, it will refer the recommended decisions to the House of Representatives for a decision.

Most readers would  express serious doubt as to whether, given the present composition of Malta’s Parliament, it is possible to have an objective assessment of recommendations made by the Commissioner or the Standing Committee on allegations of unethical behaviour or misleading and/or incorrect declarations of assets.  It is difficult to imagine how Malta’s Parliament, divided as it is into two opposing camps, could take objective decisions on cases similar to that of former Health Minister Joe Cassar. It goes without saying that the debate and decisions would be highly charged along partisan lines.

I may be wrong, but, in my opinion, unless the decision-taking procedures proposed in the Bill Regulating Standards in Public life are heavily revisited, the proposals may not lead to an effective instrument with which to address unethical behaviour by holders of public office.

published in The Malta Independent on Sunday : 8 November 2015

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Tonio Fenech, l-ispiji, w ir-responsabbiltà tal-uffiċjali pubbliċi

Directive 5

 

Il-Partit Laburista bhalissa ghaddej b’kampanja dwar l-“ispjuni” ta’ Tonio Fenech.

Teżisti informazzjoni elettronika li tindika illi numru ta’ uffiċjali pubbliċi fi gradi imlaħħqin kienu qed jassistu lil Tonio Fenech, meta kien għadu l-kelliemi tal-PN dwar il-finanzi. Kienu qed jieħdu sehem f’laqgħat ta’ diskussjoni kemm fil-HQ tal-Partit Nazzjonalista kif ukoll b’mod virtwali.

Minbarra dan, qed jingħad li kienu qed jgħaddu informazzjoni kunfidenzjali li saru jafu biha waqt il-qadi ta’ dmirijiethom.

Dawn huma żewġ affarijiet kompletament differenti.

Li uffiċjal pubbliku jgħaddi informazzjoni kunfidenzjali li jsir jaf bħala riżultat waqt il-qadi ta’ dmirijeitu hi materja gravi ħafna. Jekk dan iseħħ u jkun jista’ jiġi ppruvat, bla ebda dubju, jimmerita azzjoni drastika sakemm ma jsirx biex jinkixfu abbużi fl-amministrazzjoni pubblika, f’liema każ fil-fehma tiegħi ikun skużabbli.

Min-naħa l-oħra, l-parteċipazzjoni ta’ uffiċjali pubbliċi fil-politika illum hi possibli għal ħafna. Huma ftit dawk l-impjegati fis-settur pubbliku li ma jistgħux jipparteċipaw. Dawk li ma jistgħux jipparteċipaw (b’xi eċċezzjonijiet) huma ristretti għall-gradi ta’ fuq nett, sa skala Numru 5. Dan huwa xieraq għax huwa neċessarju li l-għola uffiċjali tas-settur pubbliku jkunu distakkati mill-ħidma tal-partiti politiċi.

Xi snin ilu n-numru ta’ l-impjegati fis-settur pubbliku li ma setgħux jinvolvu ruħhom fil-politika kien ħafna ikbar. Iżda tul is-snin sar tibdil kbir u ġie rikonoxxut li n-numru ta’ dawk li ma kellhomx jipparteċipaw kellu jkun l-inqas possibli. Din il-posizzjoni ġiet kristallizzata fid-Direttiva numru 5 li ħarġet fl-2011 taħt il-provedimenti tal-Att dwar l-Amministrazzjoni Pubblika.

Din hi restrizzjoni ġustifikabbli, avolja, bla dubju, min jintlaqat minnha jaħseb mod ieħor. Hi miżura bażika li nsibuha fid-demokraziji kollha. Tajjeb li, for the record, ngħid ukoll li Alternattiva Demokratika ġiet effettwata minn din il-mizura. Dan billi għandna diversi persuni validi li ma setgħux jibqgħu attivi minħabba li ħadu ħatriet fi gradi għoljin fis-settur pubbliku. Dan m’għamluħx biss għax hekk kien xieraq, imma niftakar ċar każ partikolari fejn mill-OPM fl-2008/9 kienu għamlu l-ġimgħat jiġru wara uffiċjal ta’ Alternattiva Demokratika biex jassiguraw ruħhom li kien ser iwaqqaf il-ħidma politika tiegħu. Kienu ukoll għamluha ċara ħafna: li jekk ma jitlaqx il-ħatra politika ma setax ikompli fl-impieg!

Ikun tajjeb li l-PN jifhem dan u jimxi miegħu ukoll.

 

A position of trust

auberge_de_castille_fullsize

Government has just announced that it has appointed 14 Permanent Secretaries. Three of the appointees have already served under the previous administration. The others are new to the post.

Within twenty four hours from Labour’s election to office, Prime Minister Joseph Muscat announced the appointment of a designate Head of the Civil Service. In line with Lawrence Gonzi’s appointments the said designate Head of the Civil Service was also appointed simultaneously as Principle Permanent Secretary at the Office of the Prime Minister and Secretary to the Cabinet.

Within hours rumours announced that all Permanent Secretaries had been requested to submit their resignations which, it was stated, were necessary and in line with normal practice in a democratic society.

It  was not however stated that the real issue with the post of Permanent Secretary is that it is a position of trust. All those appointed were so appointed because the previous administration considered that they could be trusted. Knowing some if not most of the appointees I can say that the trust demonstrated by the previous administration in the appointment of its Permanent Secretaries was most probably based on a cocktail of considerations.  Their administrative abilities undoubtedly featured prominently on the list. There were undoubtedly other issues. Given the sensitivity of the posts I have no doubt that political loyalty was given some weight in the appointments made. In some cases more than others.

The posts of Permanent Secretaries are not the only posts which the Gonzi administration considered as positions of trust.  I remember clearly the reports drawn up by former MEPA Audit Officer on the appointment of the Director for Environment Protection at MEPA and MEPA’s  CEO without issuing a call for applications. The MEPA Audit Officer had then argued that there was no need to consider such posts as positions of trust meriting direct appointment. Subjecting them to a public competition through an open call for applications would have been fair and proper.

A number of public corporations and authorities have appointed their senior management, primarily CEOs, through either an open call or else through a direct appointment. In view of the fact that the Public Administration Act has not been brought into force there is no enforceable rule to ensure a clear demarcation line as to which posts in the wider civil service are to be deemed as positions of trust and which not.

It is logical for persons appointed to positions of trust to make way when those who appointed them are no longer in authority. But then in a micro-state as Malta, where each and every one of us is known to one and all, it is in my view essential that the positions in the wider civil service which are deemed to be “positions of trust” are to be the minimum possible number.  It does not make sense to have a large number of such posts.

Unfortunately this matter has never been discussed. What is government’s position on the matter?

It is about time that all the cards are on the table.

Franco’s Bill

published in The Times, Saturday July 7, 2012 under the title How to Regulate Party Funding

The Private Member’s Bill submitted for Parliament’s consideration by maverick MP Franco Debono is a step in the right direction. It seeks to lead Parliament to take the first concrete steps on regulating the financing of politics.

Having had the opportunity on behalf of Alternattiva Demokratika to take part in discussions with representatives of the parliamentary political parties and other interested persons, I consider that it would be appropriate to put on record AD’s views.

In the Bill, there are three fundamental issues that need to be reconsidered.

The first point is the proposed law’s enforcer. The Bill takes the cue from UK legislation and proposes the Electoral Commission as the enforcer. In considering this proposal at a local level, one has to note that the Electoral Commission is dominated by the parliamentary parties with one half of its members being nominated by the political party in government and the other half by the party in opposition. The Chief Electoral Commissioner is a public officer nominated by the government.

In practice, this means that nominees of the two political parties in Parliament will be entrusted to police the financing of the political system.

One has also to consider to what extent section 6 of the Public Administration Act, dealing with ministers’ instructions to public officers, would have a bearing on the new function added to the Electoral Commission’s duties.

AD feels that Malta can look towards its success stories – the office of the Ombudsman and the office of the Auditor General – which are functioning as officers of Parliament and report directly to the Speaker of the House of Representatives. Being elected subject to the support of two thirds of the members of the House means that both the Ombudsman and the Auditor General enjoy support across the political spectrum.

Hence, appointing a new officer of Parliament responsible for policing the financing of politics is, in AD’s view, a much better solution than assigning this responsibility to the Electoral Commission, which, unfortunately, is another tool of the two-party monopoly on the island.

The second point to be made is that the proposed Private Member’s Bill introduces an element of over-regulation of the political parties. Unfortunately, it also tries to transform political decisions that parties have to take from time to time into complex issues by establishing unnecessary detailed procedures.

AD considers that only two basic issues are to be considered necessary for the registration of political parties. These are the existence of a democratic party structure together with adherence to political principles compatible with a democratic society.

Additionally, administrative information coupled with updated information on party officials who would be responsible for carrying out the duties relative to the regulation of the financing of politics would, in AD’s view, be enough.

Other areas should be left as they are now in the hands of the political parties themselves. The third issue of fundamental importance is the lacuna which the Private Member’s Bill allows relative to anonymous donations.

It is submitted that anonymous donations should be forbidden. If this is not done political parties cannot be in a position to check and certify whether and to what extent the financial contributions by any individual adds up to the amount that must be reported.

The Bill rightly accepts confidentiality as to the identity of those donating small amounts. This is as it should be. But confidentiality should not be mixed up with anonymity as, otherwise, parties will not be in a position to auto-regulate the monies received.

There are a thousand and one opinions as to what the details of the Bill should be. There are those who think that the limits are too low or too high. These details are matters on which it should not be too difficult to find a solution.

During the discussions held at the parliamentary select committee last Monday, another very important point was made of relevance to local council and European elections.

It was pointed out that there have been a number of instances where candidates for such elections were openly supported by bodies that are not political parties. Residents’ associations, band clubs, football clubs and the hunting federation have on occasion presented candidates for these elections.

It was noted that this is an area that should be looked at in detail in order to avoid a situation where such associations collected or received funds for one purpose and then spend part of these funds for political purposes, that is for a purpose that was not intended by those who donated such funds.

The debate on regulating political financing has been going on for quite some time. It is about time that decisions are taken.