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

The golden handshakes must be transparent

It has been reported, in various sections of the press, that Justyne Caruana, former Minister of Education, has received, or will be shortly receiving payment in the region of €30,000 as a result of her ceasing to hold political office. This has occurred after she was forced to resign subsequent to the publication of a damning report from the Commissioner for Standards in Public Life which report concluded that the Ministry of Education, under her political direction, had screwed the exchequer to benefit her “close friend”.

Since 2008 holders of political office who cease to occupy such office have received golden handshakes, substantial sums which some describe as severance pay. The sums disbursed to date are substantial and, over the years, are said to be close to a total of €1,500,000. Holders of political office in receipt of such payments are not just members of Cabinet, as payments have also been made to former Leaders of the Opposition throughout these years.

The applicable criteria are largely unknown. There is no transparency whatsoever in the process.

There is a serious issue of governance.  The Executive is bound to be accountable through ensuring that both the criteria applied as well as the monies disbursed are well known. It is an expenditure from the public purse, so there should be no secrets about it. It is in the public interest to know how the public purse is being managed at all times.

First: the objectives of the payments should be crystal clear. When holders of political office take up their post, generally, they take leave from their current employment or close their private offices if they are professionals. Their job prior to assuming political office may be lost by the time they relinquish office. On the other hand, losing contact with their professional environment will generally place them in a difficult position to reintegrate when their term of political responsibilities draws to an end. 

Hence the objective of these so-called golden handshakes is to compensate for the fact that the holder of political office cannot go back to his/her former job or professional environment. He or she will generally have to start from scratch or almost. Not all cases are identical and hence the criteria drawn up should allow for some leeway. Do they? We do not know as to date these criteria are considered as some state secret!

The objective of the payments made is to ease the transition of the holder of political office back to a normal life.

The second point is to establish who should apply these criteria. From what is known through reports in the media the matter is regulated by the Office of the Prime Minister (OPM), either directly or through the Cabinet office. This is not on.

Ideally the criteria should be applied by an authoritative person or body separate and distinct from the OPM. The OPM has a finger in the pie, generally, in all the circumstances leading to the appointment to political office or to the dismissal therefrom. It should therefore not be in a position of sugaring resignations with promises of generous hand-outs.

The third point is then to establish the quantum payable.

From what is known, locally, this is established at a month’s salary for every year’s service, subject to a minimum payment of a six-month salary. It is not known whether eligibility is pegged to a minimum period in office.  These payment rates are substantial when compared to those in other jurisdictions. In addition to having smaller payments other jurisdictions subject such benefits to a minimum period in office, generally of not less than one year.

There are also a number of other serious considerations which need to be made. Should loss of political office as a result of an unfavourable election result have the same impact as being dismissed from office or being forced to resign as a result of unethical or unacceptable behaviour?

Specifically, should ending your political appointment in disgrace be rewarded? It should definitely not be so.

These are some of the issues which transparency brings to the fore. We need to discuss them seriously and only then can they be applied ethically and fairly.

It is for these reasons that earlier this week I have requested the Auditor General to investigate the golden handshakes being paid out by the Office of the Prime Minister to former members of the Cabinet. The payments made and the criteria applied should be examined meticulously.

Good governance should be our basic guide.

published in The Malta Independent on Sunday: 9 January 2022

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

Il-qrun tal-politiku

 

Bħalissa hawn ħafna stejjer dwar il-qrun. Hawn min jiddeletta li jkun jaf il-qrun ta’ kulħadd. Jieħu pjaċir ixandarhom. Il-mistoqsija ta’ dejjem hi jekk il-qrun tal-politiku hux ta’ interess pubbliku.

Uħud minn dak li qed jixxandar bil-kitba jew fuq il-medja soċjali ilu li xxandar fl-aħbarijiet trasmessi fil-widnejn. Jiġifieri dak li qed jitperreċ illum ilu magħruf għal numru ta’ nies.

B’mod ġenerali l-ħajja privata tal-politiku m’hi affari ta’ ħadd. Mhux kulħadd jaqbel ma dan għax hemm min jidhirlu li min hu fil-ħajja pubblika jirrinunzja għal kull forma u xorta ta’ privatezza. Naħseb li dan m’għandux ikun.

Pero’ nifhem li hemm ċirkustanzi li f’kunflitt bejn il-privatezza u l-interess pubbliku dan ta’ l-aħħar għandu jirbaħ. Id-diffikulta hi dwar meta jkun fl-interess pubbliku li issir invażjoni tal-privatezza. Min irid ifettaq dejjem isib xi ħaġa biex biha jiġġustifika l-invażjoni tal-privatezza.

Imma l-affarijiet mhux sempliċi daqshekk.

Dejjem huma meħtieġa provi li ma jħallu l-ebda dubju li hemm interess pubbliku. Fost affarijiet oħra, per eżempju, jekk jeżistu provi ta’ abbuż ta’ poter, ta’ misapproprijazzjoni ta’ fondi pubbliċi jew ta’ korrużżjoni jiena naħseb li invażjoni tal-privatezza tal-politiku tkun ġustifikata.

Imma l-invażjoni tal-privatezza tal-politiku m’għandhiex issir biex taqta’ l-kurżita’ taz-zekzika.

Allura irridu nistennew u naraw kif ser jiżviluppaw il-libelli li saru iktar kmieni illum dwar il-qrun li ġew imxandra. Naraw jekk dak li ntqal kienx fl-interess pubbliku jew le li jingħad. Huwa biss f’dak il-waqt li nkunu nistgħu ngħidu jekk dak li ġie ippubblikat dwar il-qrun tal-politiku hux ġustifikat jew le.

Lobbying risks corruption

 

In a democratic society, lobbying is a potentially legitimate activity. It involves the communication of views and information to legislators and administrators by those who have an interest in informing them of the impacts of the decisions under consideration.  It is perfectly legitimate that individuals, acting on their own behalf, or else acting on behalf of third parties, seek to ensure that decision takers are well informed before taking the required decisions. Obviously lobbying should not be the process through which the decision takers make way for the representatives of corporations to take their place.

Free and open access to decision takers is an important matter of public interest. It is perfectly legitimate but ought to be regulated and the resulting information adequately and appropriately disclosed. The difficulty, as always, is where to draw the line. It must be ensured that society protects itself against the corruption risks involved in lobbying when this is secretive and unregulated.

The manner in which Dalligate is unfolding in the EU institutions clearly underlines this preoccupation.  The European Institutions have lobbying rules.  The basic issue of Dalligate is in my view not whether former EU Commissioner John Dalli resigned or was dismissed. Rather, in line with the Code of Conduct for Commissioners, the issue is whether he “acted in a manner that is in keeping with the dignity and duties” of his office when meeting with lobbyists away from the Commission offices, unaccompanied, and such that what went on during the meetings is not documented but known only to a couple of persons. Even if everything said in such meetings was above board, the fact that they were held is itself unacceptable. John Dalli claims, most probably correctly, that he was entrapped by the tobacco industry. Being so naive as to facilitate his own entrapment, it was right that he should go without a whimper. Instead we were regaled with theatrics which have served no useful purpose, not even for John Dalli.

All this is further compounded by the additional very serious allegation that representatives of the tobacco industry met with other senior officials of the EU Commission without these meetings being disclosed and documented.  Emily O’Reilly Ombudsman of the European Union is currently carrying out an investigation at the request of Corporate Europe Observatory on fourteen such meetings.

Corporate Europe Observatory, a watchdog based in Brussels and campaigning for greater transparency and accountability in decision taking, estimates that in Brussels alone there are around 30,000 lobbyists. Compare this to the around 24,000 staff employed by the European Commission as on 31 December 2013 and you get a glimpse of what’s going on in the corridors of Brussels. Lobbying in Brussels is a billion euro industry which seeks to influence and at times deflect political decisions. The regulation of lobbying seeks to place a spotlight on the source of influence and hopefully to counter attempts to derail or deflect political decisions.

There is a continuous debate in the EU institutions on fine tuning the rules regulating lobbying. In 2011 the European Parliament approved an “Inter-institutional agreement on a Common Transparency Register between the Parliament and the Commission”. This register provides for the voluntary registering of lobbyists active in the EU institutions. It is hoped that during the current EU Parliament’s term the registration of lobbyists in Brussels will be a compulsory matter. This may happen when the issues raised by Dalligate are finally addressed, possibly within the next few months.

Closer to home, a Parliamentary Select Committee has concluded its workings on Standards in Public Life. The Select Committee generally did a good job. It produced a final report which Mr Speaker laid on the Table of the House on the 24 March 2014. The report, including the proposed legislation attached to the said report, deals with the behaviour of Members of Parliament (including members of Cabinet) and persons appointed to positions of trust in the public sector (including statutory authorities) primarily with reference to their declaration of assets as well as with reference to a Code of Ethics which has been in force since 1994.  Surprisingly there is no direct reference to lobbying in the workings and conclusions of the Parliamentary Select Committee.

Lobbying, as is normal, is very much existent in Malta too. It would be appropriate if it is addressed by ensuring that it is regulated, documented and disclosed where appropriate. However it seems that currently there are no plans to regulate lobbying in Malta. If we are really serious on tackling corruption at its roots it would be better if the need to regulate lobbying is urgently reconsidered. Together with legislation on the financing of political parties, the regulation of lobbying would create a quasi complete tool-kit in the fight against corruption.

published in The Times of Malta – 21 July 2014