Regulating the building industry

Regulating the building industry requires the political will to act in an industry that has repeatedly opposed and defied regulation. Last week’s fatal accident at St Ignatius Junction Sliema is the latest incident in an industry in which regulation is still opposed. The political will to regulate is lacking, notwithstanding all the government theatrics, day in day out.

The Chief Executive Officer of the Building and Construction Authority (BCA) has submitted his resignation on Tuesday. This will lead to the appointment of a third CEO in as many years. This is a resignation that has been submitted out of frustration, even though the resignation letter has not been published.

This resignation followed the comments of Robert Abela, Prime Minister, who on Sunday, a few hours after the incident acknowledged that the authorities regulating the building industry do not have sufficient resources to carry out their responsibilities and regulate the industry. However, he failed to state or acknowledge that those whom his government appointed to lead the BCA have time and again requested these resources. The government has, so far, repeatedly ignored these requests.

When giving evidence at the Jean Paul Sofia public inquiry, the former CEO of the BCA, Karl Azzopardi, stated that he had repeatedly requested funds for a staff complement of 300 to regulate the industry through inspections and enforcement. The recruitment process was slow and the funds allocated rarely matched what he considered necessary.

From Azzopardi’s evidence at the public inquiry, it results that there were only 11 inspectors at the BCA against a projected requirement of between 40 and 50. In addition to recruitment, he explained that there was also the requirement to train those selected meticulously, as otherwise, they would not be in any way effective.

Karl Azzopardi was squeezed out of his CEO post by the incoming Minister Stefan Zrinzo Azzopardi, who preferred his own man, Jesmond Muscat, who, however, resigned earlier this week. The BCA, in the meantime, is still without adequate resources as the Prime Minister’s words have so far not been matched with the allocation of the required resources.

The lack of resources allocated to the BCA is a major contributor leading to the frequent construction incidents which are becoming a too frequent occurrence. Without funds for the BCA to hire and train staff to carry out its regulatory duties, we may have more incidents in the weeks and months to come. There is a political responsibility to be shouldered for this lack of funding of the BCA. Prime Minister Robert Abela tried to transmit the subtle message that Minister Zrinzo Azzopardi was shouldering this by removing the building industry portfolio from his Ministerial responsibilities in the last Cabinet reshuffle.

This is however not enough.

The BCA is once more without a CEO, who is quite obviously fed up with being treated as a political football by those appointing him. His letter of resignation was not published, but its timing gives a clear message which cannot be ignored.

As results from the Sofia inquiry report,  the BCA inspectorate was made up of eleven persons! An identical number of persons make up the BCA Board of Directors!  Those are the government’s BCA priorities at this point.

When the government starts adequately funding the BCA, then maybe we can have an inspectorate that acts proactively to identify the abusers in the industry before they lead to more deaths.

published in The Malta Independent on Sunday: 28 April 2024

The courage to change

Good governance is central to the proper nurturing of this 50-year-old Republic. Good governance is founded on transparency and accountability. Secrecy and the withholding of information from the public domain, in contrast, generate bad governance.

Transparency is a basic characteristic of good governance whereas secrecy is the distinguishing mark of bad governance. This inevitably leads to the shielding of unethical behaviour, as well as the propagation of a culture of greed and corruption.

Transparency and accountability are inseparable twins. Accountability is, in fact, non-existent or severely diluted in the absence of transparency.

Good governance is much more than a concept. It is the essential foundation for any democratic Republic.  In the absence of good governance, greed flourishes, and national institutions are slowly transformed into personal fiefdoms. Corruption and rampant clientelism are the inevitable results of a lack of good governance.

In her inaugural speech on Thursday, President of the Republic Myriam Spiteri Debono spoke of the assassination of Daphne Caruana Galizia. Daphne’s assassination was described by Her Excellency as a wound that, as a nation, we must heal the soonest.

Daphne Caruana Galizia was actively involved in journalism, investigating corruption. Notwithstanding the continuous vitriol she faced, Daphne identified many a scandal associated with the governance model championed by the Labour Party in government.

This, in reality, is the wound to be healed. We need to finalise that begun by Daphne by ensuring, as a nation, that the corrupt face the music the soonest. Then the festering wounds of corruption, made worse as a result of a culture of impunity, will start the healing process. The rule of law must prevail without any exception.

The assassination of Daphne is also a heavy blow against good governance.  The public inquiry into the circumstances that led to Daphne’s assassination concluded with identifying the Maltese state as being ultimately responsible for all that happened.

A culture of greed has been reinforced with a culture of impunity.

The change necessary to heal this wound requires considerable courage and goodwill. I am not at present convinced that the political leadership currently in government is acting in good faith. It is a leadership under siege, continuously defending those who have driven this country to the dogs.

Land use planning and our environment are regulated by greed. Agricultural land is slowly disappearing as a result of the planning policies of the PN in government way back in 2006 through the so-called rationalisation exercise. The Labour Party opposed these plans when in Opposition but it is currently in the process of milking them dry to ensure that the greedy are fully satisfied.  Some have already licked their lips! Others are awaiting their turn.

It takes courage to act against greed, when both Parliamentary parties are fully committed to entrenching it as a way of life. They ensure the quality of life of the greedy, but in the process are ruining that of all the rest of us: both the present as well as the future generations.

The current set-up of our Parliament is part of the problem. It is no wonder, that, in this scenario, we are lumped with an electoral system that ensures that the voice of change is silenced by making it as difficult as possible for it to be heard.

Change is hindered as the national institutions are rigged against those who dare to speak up for the representation of a variety of minority views in the country.

As a result of this lack of political goodwill, ADPD-The Green Party is currently in Court contesting the discriminatory nature of this rigged electoral system. It is a constitutional court case that is hopefully approaching its conclusion.

At ADPD-The Green Party, we have long been speaking about the urgent need for electoral reform, focused on the need to ensure that every vote is valued. Until such time, no change can ensure that everybody is on board. One person, one vote, one value.

It takes courage (and political goodwill) to change.

published in The Malta Independent on Sunday: 7 April 2024

The President of the Republic: a flicker of hope

The term of office of current President of the Republic George Vella will expire in the first days of April. His successor, the new President, will, for the first time require the consent of a two-thirds majority of the House of Representatives in order to be elected. This, in practice, means that both Government and Opposition must be in agreement for such an appointment to be approved.

Talks between government and opposition are known to have commenced. They are confidential in nature and as such little is known as to how they have proceeded to date. All that is known is that the Opposition Parliamentary group has drawn a significant red line: it will not support any candidate for the Presidency of the Republic if such candidate was a member of the Cabinet of Ministers led by Joseph Muscat and censored by the public inquiry into the circumstances leading to the assassination of Daphne Caruana Galizia.

The red line drawn by the Opposition is significant. It is not known how government ranks have reacted to it, as, so far, no public statement has been made on the manner in which the talks between the Labour led government and the PN Opposition are progressing. 

The veil of confidentiality is reasonable, but at some point, it must and will inevitably be lifted in order to enable the public debate on the Presidency to proceed.

At the time of writing Prime Minister Robert Abela is being quoted as emphasizing that he is “hopeful” that an agreement will be arrived at, even at this late hour. It is being stated that ongoing talks are constructive, this giving rise to a possibly positive outcome by the early April deadline. The first indication of the name of a possible agreed nominee is also available at the time of writing.

The two-thirds hurdle which must be overcome in order to elect a President of the Republic, once every five years, has a specific aim: that of ensuring that the selected person has as wide an acceptance as possible. He or she must be able to bridge the political divide. This must be done on a continuous basis.

There have been a countless number of instances in the past when the political parties in Parliament have succeeded in overcoming partisan squabbling and reached agreement on many a sensitive matter. Including the appointment of a Head of State. Then it was good politics to do so. Now it is also a must!

The art of compromise is good politics which, unfortunately, is not sufficiently mastered by many in the political world. It does not mean giving up any of your views, values or beliefs. It rather signifies that you also see the good in what others do and factor it in what you do or say. It is a point that is often sadly missed in this polarized society which we call home!

I still fail to understand why, for example, the Opposition in Parliament failed to accept former Chief Justice Joseph Azzopardi as Commissioner for Standards in Public Life. I had then stated that the Opposition had the right to block the proposed appointment, but it also had the duty to give reasonable explanations for doing so. It failed to give reasonable explanations, because none, in my view, existed. Playing party politics with our institutions is not on.

The rest is now history, except, that, in my opinion, Joseph Azzopardi has proven himself to be a good choice as Commissioner for Standards in Public Life. Both PN and Labour, unfortunately, acted irrationally in this matter. The PN was intransigent while Labour over-reacted.

It is appropriate that both Government and Opposition learn lessons from their past mistakes. It is in the interest of the country that they do this the soonest possible.

The fact that talks are proceeding constructively, maybe, is an indicator that, possibly, there is still some flickering hope for this country. We can only wait and hold our breath: possibly for not too long!

published on The Malta Independent on Sunday: 24 March 2024

Blood on their hands

When speaking on the report of the public inquiry into the circumstances which led to the death of Jean Paul Sofia, Robert Abela, the Prime Minister, emphasised that he expected that those who were singled out in the said report are to shoulder their responsibility. He also established a deadline by which he expected that they submit their resignation.

Some have been singled out by name. Others through membership of decision taking bodies whose actions were censored by the Board of Inquiry. In fact, it adds up to more than has been pinpointed by the Prime Minister.

At the time of writing, we were informed that David Xuereb has resigned his Chairmanship of the Occupational Health and Safety Authority (OHSA), Peter Borg has resigned from Deputy Chairman of Malta Enterprise. In addition Victor Carachi and Paul Abela have resigned from the Malta Enterprise Investment Committee and the Committee itself has been abolished.

We were also informed that after the publication of the Inquiry’s report, Kevin Camilleri, the Head of the micro-enterprise unit of Malta Enterprise was dismissed from his post.

The report of the inquiry identified a multitude of persons, executives and institutions who in one way or another contributed to the developing mess which we call the building industry. Each one of them who turned a blind eye, or was absent from his post at crucial moments, or took decisions without a proper consideration of its implications should shoulder his/her responsibilities and resign.

I would go one further step: it is not enough to resign from the posts subject to the inquiry’s scrutiny. Each one of them should resign from all their public postings.

The report of the public inquiry, however went much further than identifying those involved and analysing in depth their operations. It did this in view of the fact that all these appointees where entrusted to ensure that the state shoulders adequately its responsibilities through a focused regulation of the industry.  

Yet we got to know that Jobs Plus has more members on its Board than it has inspectors. Also, we got confirmation that enforcement is weak everywhere, right through the building industry.

The Board of Inquiry has gone through all of the operations and identified those accountable. At the end of the day, when the dust has settled, however, the buck stops on the desk of the Prime Minister and his Cabinet of Ministers. 

The next step is to ask the members of the executive whether they ever sought to ensure that the public officers, executives and other appointees which they entrusted to regulate the building industry carried adequately their assignment. We know, not just through the inquiry’s report, that the executives in charge of the Building and Construction Authority (BCA) and the Occupational Health and Safety Authority (OHSA) have repeatedly requested funding to build up their inspectorate as well as their enforcement capacity. It was not forthcoming. Plans for beefing up the organisations remained a paper exercise.

Are not the respective Ministers accountable for this?

Isn’t Minister Stefan Zrinzo-Azzopardi, until recently politically responsible for the building industry, responsible for the current state of the BCA? In particular for changing without justification its senior executive team in a most critical of times?

Minister Silvio Schembri and Minister Miriam Dalli were at different times responsible for Malta Enterprise and its appendages. At no point in time did they indicate an interest in the manner of operation of the Malta Enterprise Investment Committee and the extent to which public funds were properly used and accounted for. The manner in which the decision relative to the Corradino site was arrived at  is indicative that possibly there could be much more. It is logical to assume that proper oversight is lacking as such blatant irresponsible decisions would not otherwise crop up out of the blue. 

The inquiry, at the end of the day is about the responsibility of the state to regulate the building industry. A responsibility which the state of Malta has failed to live up to. Robert Abela and his team at Castille Place are at the end of the day accountable for this failure. He does not need deadlines to own up to this failure.

Prime Minister Robert Abela tried to avoid all this by forcefully obstructing the commencement of the public inquiry. He knew, generally, what the conclusions would be, as the problems addressed by the inquiry have been with us for ages, ignored continuously. It is a failure in governance, a failure in management of the state of its very basic responsibilities.

Isn’t it about time that Abela and his team at least apologise to the nation for their incompetence? As a result of this, they have blood on their hands.

published in The Malta Independent on Sunday: 3 March 2024

Does the building construction industry care?

We had another serious accident in the building construction industry this week at Gżira. The retained  façade of a number of buildings currently in the process of being redeveloped into a hotel, collapsed into the street: Belvedere Street in Gżira.

These accidents don’t just happen. They are inevitably the result of someone’s error, big or small.

Without waiting for the building construction industry reform, currently in hand, there are already enough rules and institutions in place, which, had they functioned properly, could possibly have avoided this accident altogether.

Fortunately, no one was physically injured: no one however has any merit in this. It is just pure luck that a pedestrian in Belvedere Street Gżira, just avoided being hit by the flying stonework, as was reported in some sections of the media.

The building operations in hand were subject to two development permits: PA 01866/20 and PA 08659/21. The site has an area of 384 square metres.

The media has informed us as to the name of the architect and the developer entrusted with this project. There are however other actors who should be spotlighted. The documentation available on the Planning Authority website indicates the names of a site technical officer, a project supervisor as well as a site manager who were appointed in line with the requirements of legislation currently in force. This is the supervisory team which was ultimately responsible for managing the site at Belvedere Street in Gżira. They had to ensure that the method statement drawn up by the architect responsible for the project was followed.

It would thus be interesting to know how the works carried out on this site at Gżira were actually supervised. The Magisterial inquiry will possibly shed some light on the matter.

Perusal of the demolition method statements in the files of the two development permits indicate the various planned precautions to avoid accidents. The crux of the whole issue is now to establish whether the planned precautions were sufficient and equally important, if they were followed. The actual supervision carried out on site is crucial.

The Magisterial inquiry will undoubtedly examine all this to understand the site dynamics and possibly arrive at a clear conclusion as to what has exactly happened.

Too many accidents are taking place on building construction sites. At times sections of the building construction industry are conveying the message that the industry does not really care. This attitude is grossly unfair as many do in fact care. It is the minority which at times act haphazardly and cause accidents.

The present situation is, in my humble opinion, the inevitable result of having successive governments handling the building construction industry with kids’ gloves.  

The problem is also one of attitude right through the industry and the institutions which regulate and operate it. Does the building industry care?

The deaths of Miriam Pace (Santa Venera: March 2020) and Jean Paul Sofia (Kordin Industrial Estate: December 2022) were momentarily shocking. Unfortunately, however they were quickly forgotten, just as the earlier death of the 27-year-old Latvian construction worker Maksims Artamonovs (Mellieħa: March 2012) was forgotten too. Nothing seems to have changed in the operational attitudes of sections of the building construction industry as a result of these deaths or other cases of serious injury.

Do you remember the dumping on a pavement of a migrant worker injured on a building construction site in Mellieħa in 2021? Apparently, most have forgotten all about this incident too!

Do we care? A majority of spineless specimens of Members of Parliament was even coerced into declaring that there was no need for a public inquiry into the building construction industry, even though Prime Minister Robert Abela reversed this decision unceremoniously shortly afterwards when faced with a massive public protest. This resistance is indicative that deep down the state and its institutions are downright insensitive to the human suffering caused by the building construction industry.

Only time will tell whether there will be anything beyond the usual cosmetic changes. How many more lives must be sacrificed on the altar of building construction greed? At the end of the day, the building industry only cares about its turnover.

published in The Malta Independent on Sunday : 11 February 2024

Mistoqsijiet li jeħtieġu tweġiba

Fid-dawl tar-rifjut kategoriku tal-Gvern li jagħmel użu minn dak li jipprovdi l-Att dwar l-Inkjesti biex permezz ta’ inkjesta pubblika jkunu eżaminati ċ-ċirkustanzi li wasslu għall-mewt ta’ Jean-Paul Sofia nhar it-3 ta’ Diċembru 2022 hemm mistoqsijiet li jeħtieġu tweġiba ċara. Mistoqsijiet li jistgħu jinġabru fi tnejn: lil min qed tipproteġu? u x’qed jinżamm mistur?

Meta tkun konkluża, l-inkjesta maġisterjali ser tidentifika r-responsabbiltajiet kriminali li kkontribwew u wasslu għal dan l-inċident fatali. Possibilment l-inkjesta teżamina l-ħidma tal-Awtorità tal-Ippjanar, tal-Awtorità dwar il-Bini u l-Kostruzzjoni u tal-Awtorità tal-Artijiet fejn din il-ħidma għandha relevanza għall-inċident taħt konsiderazzjoni.

Li hu meħtieġ, iżda, hu eżami fil-fond ta’ ħidmet dawn it-tlett awtoritajiet biex ikun stabilit jekk, tul is-snin, bl-iskuża ta’ attakk fuq il-burokrazija żejda ġie imdgħajjef jew imwarrab il-qafas regolatorja essenzjali. Dan wassal għal falliment tas-sistema regolatorja.

Qed nirreferi għall-prattika li applikazzjonijiet tal-ippjanar tal-iżvilupp ġewwa iż-żona industrijali jiġu indirizzati bi proċedura simplifikata li nirreferu għaliha bħala DNO (Development Notification Order). Riżultat ta’ hekk, dan it-tip ta’ żvilupp ftit jagħti fil-għajn. Anke ir-regolatur stess jagħti importanza inqas lil dan it-tip ta’ żvilupp. Dan iwassal għal nuqqas ta’ attenzjoni fil-pront lill-irregolaritajiet li jista’ jkun hemm!  Fil-fehma tiegħi dan jista’ jkun wieħed mill-fatturi li ikkontribwew għal dan l-inċident fatali. Għandi dubju kemm il-maġistrat inkwirenti ser tagħti piz lil konsiderazzjoni ta’ din ix-xorta. Imma f’inkjesta pubblika, inevitabilment dan il-fattur ikun eżaminat.

L-iżvilupp taħt konsiderazzjoni kien soġġett għal żewġ applikazzjonijiet DNO, it-tnejn li huma approvati: DN360/20 u DN275/22.

Għad mhux ċar kif l-art pubblika fiz-zona industrijali, fejn seħħet id-disgrazzja, spiċċat għaddiet għand l-iżviluppatur.  Hemm bosta allegazzjonijiet jiċċirkulaw dwar il-possibli irregolaritajiet li wasslu għal dan. Jista’ jkun li l-maġistrat inkwerenti teżamina dan kollu, imma s’issa, wara 7 xhur ħadd għad ma jaf xejn fiċ-ċert dwar dan.

Ġie rappurtat mill-medja li l-perit inkarigat mix-xogħol hi perit impjegata ma’ Infrastructure Malta. Fl-istess ħin li terfa’ r-responsabbiltajiet ta’ impieg professjonali fis-settur pubbliku, il-perit għandha prattika privata tagħha.  Hi l-politika kurrenti tal-Gvern li professjonisti fis-settur pubbliku huma permessi li jkollhom l-prattika privata tagħhom.

Hu mistenni li din il-prattika privat ma tkunx żviluppata b’mod li din tkun f’kunflitt mad-doveri fis-settur pubbliku. Ikun raġjonevoli li nassumu li l-uffiċjal pubbliku (il-perit) matul il-ħin normali tax-xogħol ikun mistenni li jissorvelja l-proġetti pubbliċi ta’ Infrastructure Malta. Dan dejjem sakemm il-ġurnata tax-xogħol tal-perit mhiex xi wahda sostanzjalment differenti minn tagħna lkoll!  

L-istampa irrappurtat li l-perit li qed nitkellmu dwarha għandha prattika privata estensiva li żviluppata tul is-snin, anke waqt li hi impjegata full-time ma’ Infrastructure Malta. L-inkompatibilità bejn dawn iż-żewġ rwoli hi tant ovvja li ma teħtieġ l-ebda kumment da parti tiegħi. Dan mhux biss materja ta’ kundizzjoni tal-impieg. Hu fuq kollox materja ta’ etika professjonali.

Bla dubju, inkjesta pubblika teżamina din il-materja u tikkunsidra jekk professjonisti fis-settur pubbliku għandhomx ikollhom il-prattika privata tagħhom ristretta f’dawn iċ-ċirkustanzi. Għandi dubju kemm il-maġistrat inkwirenti tidħol fil-materja, għax primarjament din hi waħda ta’ etika professjonali u probabbilment tmur lil hinn minn dak li hu mistenni mill-maġistrat. Minkejja kollox imma hi materja li għandha impatt sostanzjali mhux biss fuq dan il-kaz, imma fuq bosta oħra ukoll.

Tkellimt dwar tlett punti bażiċi li naħseb li kellhom effett konsiderevoli fuq l-inċident li wassal għall-mewt ta’ Jean-Paul Sofia f’Diċembru li għadda. Bla dubju għad jista’ jkollhom effett fuq iktar każijiet. Inkjesta pubblika urġenti tista’ tindirizza dan kollu, bit-tama li ddaħħal ftit sens f’moħħ ir-regolaturi.

ippubblikat fuq Illum: 16 ta’ Lulju 2023

Questions which require an answer

There are questions to be answered as a result of government’s outright refusal to use its legal powers under the Inquiries Act to examine the circumstances leading to the death of Jean-Paul Sofia on 3 December 2022. These questions can be basically boiled down to two: who is being shielded, what is being hidden?

The magisterial inquiry, when it is concluded, will identify criminal responsibilities which contributed to and led to the fatal accident. It will possibly examine the workings of the Planning Authority, the Building and Construction Authority and the Lands Authority when these are of obvious relevance to the fatal accident under consideration.

What is however required is an in-depth examination of these three authorities to establish, among other issues, whether, under the guise of doing away with unnecessary bureaucratic red-tape, adequate regulatory controls were diluted or discarded over the years, as a result creating a systemic regulatory failure.

I am here referring to the practice of channelling development planning applications in Industrial Estates through the simplified procedure known as DNO (Development Notification Order). As a result, this type of development proposal is placed below the regulators’ radar and consequently irregularities in the construction phase can easily go unnoticed. This, in my opinion could be one of the contributory factors to the fatal accident. I doubt whether the inquiring magistrate would factor this in the considerations of the magisterial inquiry. It would however be a most obvious consideration in a public inquiry.

The development under consideration was subject to two DNO applications, both of which were approved: DN360/20 and DN275/22.

It remains to be seen how the public land under consideration within an industrial estate ended up being transferred to the developer who took works in hand. Various allegations have been made on the possible irregularities in play. Possibly the inquiring magistrate may examine the issue but after more than seven months, we are none the wiser.

The project architect has been reported as being on the books of Infrastructure Malta, running a private practice simultaneously with carrying out the responsibilities demanded of a public sector appointment. It is current public policy to allow professionals in the public sector to juggle their responsibilities between their private practice interests and their public sector employment.

It is expected that their private practice does not conflict with the carrying out of their public sector duties. It would be reasonable to assume that during normal hours the professional at Infrastructure Malta would be expected to supervise public projects, unless the applicable working day is different from that which the rest of us mortals are accustomed to. It was reported in the press that the project architect has a steady private practice which has been developed in parallel with the full-time Infrastructure Malta role. The incompatibility between the roles is too obvious to require comment. It is not just an issue of the applicable employment conditions, but more so one concerning professional ethics.

A public inquiry would look into this specific issue and consider whether public sector professionals should be curtailed in practising their profession privately in such circumstances. I am not sure whether the inquiring magistrate would consider delving into the matter as it is primarily an ethical issue and most probably beyond the magistrate’s remit. It does however have a considerable impact not just on the case under consideration but also in many others.

I have referred to three basic issues which could have had considerable bearing on the Jean-Paul Sofia fatality last December, and other fatalities yet to come. An urgent public inquiry would address these issues, possibly driving in some sense in our regulators and regulatory procedures.

published in The Malta Independent on Sunday: 16 July 2023

X’qed taħbi? Lil min qed tipproteġi?

Ghafejn Robert Abela baqa’ jirresisti li issir inkjesta pubblika dwar l-inċident fatali li wassal għall-mewt ta’ Jean Paul Sofia? Inċident li seħħ nhar it-3 ta’ Diċembru 2022.

Mhux normali li jkun hemm din ir-resistenza kollha. X’hemm moħbi li mingħajr inkjesta pubblika jista’ jibqa’ mistur?

L-inkjesta bil-maġistrat, meta din tkun konkluża, ser twassal għal konklużjonijiet li dwarhom għad irridu naraw x’passi ser jittieħdu. Hu anke possibli li l-maġistrat tidħol f’ħafna dettall. Dan għad irridu narawh, meta l-maġistrat tikkonkludi r-rapport tagħha.

Imma hu fatt magħruf li f’ħafna każi, minbarra l-inkjesta bil-maġistrat, hu dejjem għaqli inkjesta pubblika separata li tidħol f’iktar dettall. Din, ħafna drabi, tidentifika problemi oħra li jmorru lil hinn minn dan l-inċident. Dan hu mod li bih nistgħu ngħinu biex ikunu evitati inċidenti oħra. Għax dak li jwassal għal inċident ta’ din ix-xorta, ħafna drabi jkun ferm ikbar minn dak li nkunu qed naraw. Jistgħu jkunu affarijiet li mad-daqqa t’għajn m’għandhom x’jaqsmu u allura mhux bil-fors li l-maġistrat tqis li huma relevanti.

Bilfors li l-Gvern hu konxju diġa x’inhuma dawn il-problemi u jrid possibilment jaħbihom. Dak hu l-messaġġ li qiegħed jingħata. Hu messaġġ li minbarra li juri insensittività lejn it-tbatija tal-qraba ta’ Jean-Paul Sofia, jagħti messaġġ li l-Gvern ma jimpurtaħx.

F’ċirkustanzi normali nantiċipaw konklużjonijiet (tal-maġistrat) li min għamel ix-xogħol kien imħarbat, forsi ma kienx jaf x’qed jagħmel. Kif ukoll li min kien inkarigat kien traskuratu li ma tax kaz. Ċirkustanzi li wieħed jista’ jantiċiphom dwar dawk kollha involuti, inkluz ir-regolaturi. Imma, fid-dawl tar-resistenza li qed issir għal inkjesta pubblika bil-fors li hemm ħafna iktar minn hekk. Dan hu gravi ħafna.

Meta tostakola l-ġustizzja b’dan il-mod trid terfa’ l-piż tal-konsegwenzi. Dan apparti l-fatt li dak li qed tipprova taħbi, b’xi mod xorta ser joħroġ. Illum jew għada.

Bil-fors li allura wieħed jistaqsi: x’qed taħbi? Lil min qed tipproteġi?

Licensing the construction industry

Watching the collapse of the structure which killed Jean-Paul Sofia sends shock waves through every bit of my body each time I catch a split-second glimpse of the relative video.

The magisterial inquiry is under way but for some inexplicable reason there is a resistance to a much wider public inquiry. Faced with the resulting death and multiple injuries, the public inquiry is an essential tool which could make it possible to understand what actually happened, beyond the accident itself. The public inquiry could definitely unravel important information on a number of specifics which had a bearing on the accident even if at first glance these are possibly unconnected.

So far no one has been charged. It is not known whether anybody has been interrogated on the incident, except, probably, as part of the magisterial inquiry itself, which is unfortunately taking too long to conclude. It is possible that there are valid reasons for this delay, but we are not aware of these as the magistrate in charge of the inquiry does not normally go around explaining such matters. I believe that it is in the public interest for the Court Registrar to explain matters as we have a right to know, just as much as the Law Courts have a duty to explain.

It has been stated that the licensing of the construction industry will lead to its improvement. This, we are told, would ensure the development of an industry that respects rules and ensures their uniform enforcement, as a result being more protective of life and limb.

I do not think that anyone desires otherwise. However, the proposals in the draft licence regulations do not necessarily lead in that direction. They need much more than fine-tuning.

The proposed regulations list the qualifications and documentation which an applicant for one of the three types of construction licence (demolition, excavation/piling, construction) should comply with. One of these documents is the conduct certificate. The proposed regulations, however, do not clearly spell out whether, and the extent to which, the contents of such a conduct certificate should have a bearing on the adjudication process leading to a decision on the issuing or the withholding of a licence.

Specifically, being bankrupt is a licence disqualification which is clearly spelt out in the proposed regulations. Which conduct or behaviour will be considered as disqualifying an applicant for a licence or its renewal?  Zero tolerance of unacceptable behaviour should be clearly spelt out as grounds for disqualification. We do not need to wait for the ultimate consequences to disqualify an applicant or a licence holder. Acting in a timely manner, before it is too late, should be the objective of the licencing and regulatory process. This should be as clearly spelt out as bankruptcy in the proposed regulations! Being assumed, implied or discretionary is not sufficient.

How about those who have a history of enforcement issues with the Building Construction Authority (BCA)? Should such a history have a bearing on the issuing of a licence or its renewal?  Where do we draw the line? Considering the recorded behaviour of all applicants should definitely be the starting point of the licencing process. Applicants should not be considered as having a clean slate: all their existing baggage should have a direct bearing in the consideration of whether they should be licenced or not. Past behaviour is definitely a guarantee of future patterns of behaviour. If the past is ignored it is bound to be repeated. All this is unfortunately ignored by the draft regulations.

Specifically, the impacts of the whole process of construction on third parties needs to be given considerable importance even as a licencing requirement. Too many building contractors run roughshod over the concerns of neighbouring residents. This is not always satisfactorily addressed by the operators, at times leading to lengthy litigation. This is an area which, with proper enforcement, the licensing process should eventually improve substantially.

Case-law indicates that both the imposition of substantial administrative fines as well as the suspension or withdrawal of licences can be challenged on constitutional grounds. The long-drawn-out legal battles which will inevitably develop will render the regulatory process ineffective and as a result undermining the whole reform.

Likewise, there is serious potential for abuse. Administrative action may be used to intentionally eliminate the possibility for criminal action. The matter has already arisen in an environmental case where criminal action already initiated could not proceed due to the matter having been addressed through the payment of an administrative fine.

Furthermore, the Building and Construction Tribunal which would eventually consider appeals concerning licences, although described as independent and impartial, is nothing of the sort.  It is made up of part-timers who are in full-time private practice which includes advising operators in the building construction industry. This creates legal grounds for the contestation of all its decisions.

The effectiveness of the licencing process will, at the end of the day be dependent on the resources made available to the Building and Construction Authority in order that it can fulfil its regulatory responsibilities. The Authority must be proactive. It can only do this if its inspectors do not await the lodging of a report in order to take action.

Government’s declared willingness to act, regulate and enforce is positive. Only time will however show if this willingness is translated into concrete results. Signs so far are however not promising.

published in The Malta Independent on Sunday: 19 March 2023

Some reflections on the Mafia State

Reading through the terms of reference for the Public Inquiry into the assassination of Daphne Caruana Galizia, it is amply clear to all as to what the inquiry should be aiming at.

The inquiry’s objective is to determine whether the machinery of government functioned as it should. Did it function in the public interest, or did it function in another manner, in the interest of the few, thereby creating a culture of impunity for the said few?

Some may justifiably argue that the machinery of government, in Malta, never functioned properly. It is further argued that the post 2013 administration made use of a defective machinery of government more efficiently than previous administrations, fine tuning and intensifying political controls in the process, as a result of which the stultification of the functions of the democratic state was accelerated.

The terms of reference agreed to in December 2019 speak of the development of a “de facto state of impunity” and seek to determine whether this could have been avoided through effective criminal law provisions, if such provisions exist.

Do we have a Mafia State? We would definitely have a Mafia State if the machinery of government is tied with organised crime to the extent that state officials become part of a criminal partnership or organisation.

The testimony heard so far in open session during the proceedings of the public inquiry reveals the reluctance of the authorities to investigate thereby paving the way for the development of a culture of impunity. Money-laundering investigations moved at snail’s pace until there was a change in leadership at the Economic Crimes Unit of the Malta Police Force. However, as yet we do not know what was revealed in the testimony behind closed doors. Matters could be considerably worse than what is known so far.

The revelations at the public inquiry must not be seen in isolation. They must be viewed in context of the testimony in the Magistrates Court relative to the criminal proceedings against those accused of carrying out the assassination of Daphne Caruana Galizia, or of masterminding it.

We have learnt that the alleged master-mind has pleaded with the police that he was carrying out the instructions of the Chief of Staff at the Office of the Prime Minister, Keith Schembri, who categorically denied this. The definite truth is not known yet. So far, we are only sure that the assassination planners were too close to the political nerve centre: just like in a Mafia State. It is at the Office of the Prime Minister that the middleman was offered a government job, one which delivered pay for no work. Part payment for his endeavours as a middleman!

The Ministers testifying at the public inquiry were continuously seeking to pass the buck from the Cabinet to the kitchen cabinet. On the other hand, those forming part of this kitchen cabinet feigned ignorance of their role in circumventing the role of the real cabinet. This is the worrying state of play in which those having responsibility take a step backwards as a result of which their authority ends being wielded by those appointed in lieu of those elected. Collective responsibility has been thrown to the winds.

The latest revelations crown it all. Government’s thinly veiled threats in the past days to the members of the judiciary directing the public inquiry reveal a government in panic mode.

Robert Abela’s unease at this point in time is understandable. After all he was former Prime Minister Joseph Muscat’s legal advisor. How many skeletons in the cupboard is he aware of?

published in The Malta Independent on Sunday: 20 December 2020