Issue link: https://maltatoday.uberflip.com/i/455578
maltatoday, SUNDAY, 1 FEBRUARY 2015 9 News Show MPs government contracts, says parliamentary Ombudsman JAMES DEBONO THE parliamentary ombudsman, Chief Justice Emeritus Joseph Said Pullicino, is proposing a "protocol" through which the government will be in a position to share commer- cially sensitive information with the opposition in parliament while en- suring that it is not divulged to the public. Speaking to MaltaToday, Said Pullicino insisted that while "there should be no reason why Parliament should not be fully informed of the contents" of agreements signed by the government, he recognised that in a limited number of cases this in- formation can be transmitted "in a limited and restricted manner". While the "non-disclosure" of in- formation should be the exception and never the rule, he refers to cases where agreements contain sensitive information, which cannot be di- vulged to the public either because of the national interest or to protect the commercial interests of those signing the agreements. In these limited cases the Ombuds- man is proposing that this informa- tion is transmitted to the Leader of the Opposition or to the Select Com- mittees of the House while adequate safeguards are in place to prevent it from being divulged to the public. Over the past months the govern- ment came under increased criti- cism for not publishing the power purchase agreements with Electro- gas and Shanghai Electric Power. So far the government has only pub- lished a 15-page agreement with Shanghai Electric Power, which con- tains no details on how Enemalta will purchase energy from the privatised BWSC plant. The government has so far not pub- lished its agreement with Henley and Partners, the main concessionaire of the Individual Investor Programme. The government has replied to calls by the Opposition to publish its agreement with Auotobuses Ur- banos De Leon by saying that this will be published at the "opportune time". When contacted by MaltaToday for his views on whether these con- tracts should be published, Ombuds- man Joseph Said Pullicino refused to comment on specific commercial agreements, which are "subject to a healthy political controversy". Instead he limited himself to out- lining a number of general princi- ples, which should regulate "good public administration", and to mak- ing proposals to fine tune laws regu- lating freedom of information. Disclosure should be the rule Said Pullicino insists that providing information should be the rule, and withholding it the exception: turn- ing the 'right' of the public to be in- formed, into the 'duty' of the execu- tive to inform the public. Since the executive is answerable to Parliament, MPs should therefore have the right to be fully informed by the government to be in a posi- tion to judge, approve or disapprove of the actions of the executive. "At that level the balance of the right to be informed in case of doubt should be tipped in favour of disclosure," he says. But Said Pullicino recognises that the right to be informed, like all oth- er basic rights, is not absolute. He referred to constitutional and statutory limitations, specifically meant to protect the national inter- est. The executive may withhold information when it is still involved in negotiations with a third party. "At that stage, it should be guided by public interest and is entitled to take any measure it deems fit to en- sure that negotiations would not be prejudiced by untimely disclosure." But once an agreement is finalised it should, in principle, be made avail- able to Parliament within a reason- able time and submitted to public scrutiny. "The underlying constitutional principle should clearly be that the electorate, through their representa- tives in Parliament, have the right to know what agreements that affect their lives have been concluded by the executive, entrusted by them to administer public affairs." He also calls for a definition of "national interest", the only grounds he says can be used to justify non- disclosure. "It has to be adequately proved that substantial harm would result to the national interest if the document is published and that non- disclosure to avoid such prejudice is in the national interest." In the case that agreement could contain commercially sensitive in- formation, access should only be refused when there is no overriding public interest that requires disclo- sure. And then, only parts of the requested document covered by this exception should not be disclosed. "The law needs to determine with more precision the parameters with- in which non-disclosure would be justified in the public interest," Said Pullicino said, calling on the govern- ment to revisit the Freedom of Infor- mation Act "to bring it in line with more progressive legislation". Parliament should always be informed He also adds that there is no rea- son why MPs should not be fully informed of such agreements even when they contain commercially sensitive information, as long as the information is transmitted "in a lim- ited and restricted manner". "I have suggested that one way to strike a correct balance between the interests of all parties involved would be to have a protocol that would es- tablish how such information could be transmitted to the Opposition leader or Select Committees of the House." The information can be transmit- ted "under confidentiality", exclud- ing this information "from being in the immediate public domain". An example is the Malta Citizen- ship Act, which provided that the Leader of the Opposition was to be a member of the Monitoring Commit- tee to monitor the workings of the Individual Investor Programme. "It does not seem proper that Par- liament or at least the Leader of the Opposition is not privy to commer- cial agreements… when it is not only the government that is fully aware of the contents of these agreements but also top civil servants, executives of public authorities, consultants and technocrats." Sharing information on commer- cial agreements within limits, he adds, is "one of the most effective ways to prevent and combat corrup- tion in the management of public af- fairs". jdebono@mediatoday.com.mt JAMES DEBONO TA' Cenc hotel owner Victor Borg has been given a permit by MEPA's Appeals Tribunal to install bollards to prevent vehicular access to the Kantra beach. Originally Borg had applied to place a timber gate, completely closing ac- cess to a path linking the Ta' Cenc Hotel to the Kantra Beach, where the hotel's lido is located. Borg had also erected two pillars without a permit on the same site. In 2013 the Planning Directorate successfully invoked the Structure Plan's policy, securing public access to the coastline, to block the appli- cation. The Structure Plan allows free and unhindered public access around the coastline adjacent to the sea and at the top of cliffs. Borg argued that this policy did not apply to this development "since the land in question is in private owner- ship and there is no right of passage to the public over such land". The authority's legal office disa- greed with this view, insisting that this policy also applies to private land. MEPA's appeals tribunal has now partially reversed this decision by asking Borg to present new plans within the next 30 days for the in- stallation of bollards to block access to vehicles. A €100 fine was also imposed as a penalty for the erection of the two pillars which must be removed with- in six months. The tribunal justified its decision saying that the Structure Plan policy is superseded by a local plan policy which defines this particular passage as a "pedestrian path". Therefore, the tribunal claims that MEPA should simply protect access for pedestrians while allowing Borg to block access for vehicles. By overturning the previous deci- sion, the tribunal has ensured that Borg will not have to submit a com- pletely new application, as is normal practice when a permit is refused and a new proposal is proposed. In his appeal the developer justified blocking access to the beach by re- ferring to the use of the path by jeep safaris, go-carting and off-roading. The picturesque Kantra is a small peninsula jutting out on one side of Mgarr ix-Xini, with Fessej Rock and the Comino Channel as a backdrop. The site is known to attract several scuba diving clubs. Green light on Kantra beach bollards from MEPA appeals tribunal Ombudsman charts sensible way of sharing national contracts with House of Representatives Free and unhindered public access around the coastline even on private land Ombudsman Joseph Said Pulliicino (centre) – Disclosure should be the rule