Issue link: https://maltatoday.uberflip.com/i/761508
27 maltatoday, SUNDAY, 11 DECEMBER 2016 Editorial MaltaToday, MediaToday Co. Ltd, Vjal ir-Rihan, San Gwann SGN 9016 MANAGING EDITOR: SAVIOUR BALZAN EXECUTIVE EDITOR: MATTHEW VELLA Tel: (356) 21 382741-3, 21 382745-6 • Fax: (356) 21 385075 www.maltatoday.com.mt E-mail: maltatoday@mediatoday.com.mt Quote of the week Positions of mistrust "In the EU we have established democracy, the rule of law, dignity and protection of human rights, the fight against hate speech, racism, and anti-Semitism. If that makes me part of the establishment, then I am proud to be part of it." – EP President Martin Schulz in Malta As the Foundation for Tomorrow's Schools saga has indicated, the current practice of appointing 'persons of trust' to sensitive public service positions is highly prob- lematic. In that case, Edward Caruana – a former canvasser and personal driver of Education Minister Evarist Bartolo – was appointed head of procurement at FTS; already a false start, as such positions should be answerable to the permanent secretary, not directly to the minister. Matters were greatly compounded when it was discovered that the permanent sec- retary, Joe Caruana, was Edward Carua- na's brother. This connection only came to public notice because of a complaint about alleged irregularities in an FTS public procurement process. This is a recipe for disaster. The FTS needed the permanent secretary's ap- proval for direct orders and other poten- tially controversial decisions. It is clearly unwise to permit such a clear conf lict of interest in such a sensitive matter. Moreo- ver, the fact that the procurement officer was appointed on a 'person of trust' basis arguably made it difficult for the minis- ter to take decisive action when notified. But had Caruana been an ordinary civil servant, and not an appointee, the deci- sion would have fallen to the permanent secretary... i.e., his own brother. This is why there should be a healthy arms-length distance between the differ- ent offices, and a clearer, more transparent system of checks and balances in place. Moving away from the FTS issue itself: the very concept of 'persons of trust' is in itself legally questionable. Prof. Kevin Aq- uilina, dean of the Faculty of Law, recently described the situation as 'a constitutional quagmire'. The Constitution allows appointments to public office to be made only according to its provisions. Civil service appoint- ments are made in terms of section 110(1) of the Constitution. There is no other procedure recognised by the Constitu- tion which allows employment with the government, other than in terms of the provisions of the Constitution. The Constitution distinguishes: (a) between civil servant public officers and non-civil servant public officers; and (b) between a 'public office' and 'a body' referred to in section 110(6). Employment with such a body is not tantamount to em- ployment in the civil service or in a public office. On the contrary, it constitutes employment outside the public service. In the words of the Constitution: 'Recruitment for employment with any body established by the Constitution or by or under any other law, or with any partnership or other body in which the Government of Malta, or any such body as aforesaid, have a controlling interest or over which they have effective control, shall, unless such recruitment is made af- ter a public examination duly advertised, be made through an employment service.' The Constitution further empowers the Prime Minister, 'in respect of recruitment to public offices from outside the public service', to be made, if not by the public service, 'only through an employment service provided out of public funds which ensures that no distinction, exclusion or preference is made or given in favour or against any person by reason of his politi- cal opinion and which provides oppor- tunity for employment solely in the best interests of the public service and of the nation generally'. Prof. Aquilina notes that: "As a matter of longstanding practice, staff in minis- terial secretariats are recruited directly on the basis of trust, without resort to calls for applications. This is justifi- able since ministers need to have staff in their secretariats in whom they can repose their full personal confidence. However, [a 2012 Public Service Com- mission] regularisation exercise high- lighted a number of instances in which appointments on trust were used to fill administrative, managerial or technical positions. This gave rise to a concern on the Commission's part that appoint- ments on trust could be used to avoid issuing calls for applications for vacan- cies that should be filled on the basis of merit." To make matters worse, the PSC's annual report for 2013 noted that: "to regularise the positions of persons who had been employed in an irregular manner or on the basis of trust [...] the administration had arrogated to itself a power that belonged to an independent external authority, namely the Commis- sion. Thus the administration's decision to grant indefinite status has been ultra vires and invalid in the first place". In other words, the government's re- sponse to a PSC complaint about the le- gality of 'persons of trust', was to remove the issue from the PSC's remit. Needless to say, this is the very oppo- site of a solution to the problem. What is needed are stronger rules and strict limitations on such appointments. The current arrangement only serves as a conduit for canvassers and street-leaders to be given plum posts. These are people whose loyalties are not to the State, but only to the minister. It is fair to argue that chairpersons and CEOs may be appointed by the political class since they require persons of trust who are also competent and capable. But such appointments should always be made answerable to a parliamentary committee of MPs, who should carry out grillings of the candidates and regularly scrutinise their work. In an atmosphere where public trust is constantly eroding, only full trans- parency can deliver a better and more honest service.