Those po­si­tions of trust may be break­ing the law

A few days ago, the Om­buds­man pre­sented to Par­lia­ment a copy of his plan – called (and this is em­bar­rass­ing), the Om­bud­splan – for next year.

The Malta Independent on Sunday - - DEBATE & ANALYSIS -

It in­cludes some very in­ter­est­ing in­for­ma­tion about the highly con­tro­ver­sial prac­tice of ap­point­ing favourites to ‘po­si­tions of trust’, which are state-paid jobs or sinecures. The Na­tion­al­ists in gov­ern­ment had a very strict rule on ap­point­ing peo­ple on a ‘trust’ ba­sis. Very few were per­mit­ted; the min­is­ters who wished to ap­point them had to seek clear­ance from higher pow­ers in the public ser­vice, and if the an­swer was no, then it was no. At most, a Cab­i­net min­is­ter might have been per­mit­ted a per­sonal as­sis­tant and a com­mu­ni­ca­tions as­sis­tant ap­pointed from out­side the public ser­vice on a trust ba­sis. But more fre­quently, these trusted peo­ple were picked out from among those who were em­ployed in the public ser­vice al­ready, and merely moved to the min­is­ter’s of­fice, at no ex­tra ex­pense to the public purse.

The in­com­ing Labour gov­ern­ment changed all that start­ing from March 2013. De­spite Muscat’s cam­paign prom­ise to choose ap­pointees to state com­pa­nies and or­gan­i­sa­tions by an open call, the very op­po­site hap­pened. The dis­tri­bu­tion of sinecures un­der the guise of ‘trust po­si­tions’ be­gan in earnest from Day One. It has con­tin­ued un­abated and, at this point, it has be­come al­most im­pos­si­ble to keep track of the abuse. Every per­son who worked for the Labour Party’s tele­vi­sion and ra­dio sta­tions back in 2013 ap­pears to have been put on the state pay­roll since then, along with the party’s cam­paign aides and ac­tivists. Then there are the party hench­men and cronies, given ‘po­si­tions of trust’ large and small, but mainly large. The past four-and-a-half years have been an ex­er­cise in what is, ef­fec­tively, the dis­tri­bu­tion of the spoils of war. It is an old-fash­ioned as it comes: the equiv­a­lent of what used to hap­pen when an in­vad­ing monarch handed out parcels of newly con­quered ter­ri­tory to the knights and barons who rode into bat­tle with him. And the Labour Party is sup­posed to be lib­eral and pro­gres­sive.

Now the Om­buds­man is set to chal­lenge all this, say­ing in his re­port that he has re­ceived “au­thor­i­ta­tive ad­vice” that these so-called po­si­tions of trust are “ir­reg­u­lar”. I am glad that he has de­cided to take up the mat­ter, be­cause the sit­u­a­tion is noth­ing short of ap­palling. The ‘po­si­tion of trust’ ap­pel­la­tion is now be­ing used as a trap­door through which the Labour Party, us­ing the gov­ern­ment, is put­ting armies of peo­ple on the state pay­roll, from clean­ers to dog-han­dlers all the way up to chief ex­ec­u­tive of­fi­cers put in charge of sig­nif­i­cant state bod­ies with­out an open call for ap­pli­ca­tions or a proper re­view and in­ter­view process.

Yet the Con­sti­tu­tion of Malta clearly reg­u­lates how peo­ple from out­side the public ser­vice should be re­cruited into it. An­thony Mif­sud, the Om­buds­man, points out in his re­port that the Con­sti­tu­tion lays down how any re­cruit­ment from out­side the public ser­vice should not dis­crim­i­nate be­tween peo­ple based on their po­lit­i­cal be­liefs. A ‘po­si­tion of trust’ is the an­tithe­sis of this, be­cause the very jus­ti­fi­ca­tion for it is that cer­tain po­si­tions can only be filled by in­di­vid­u­als who are trusted pre­cisely be­cause of their po­lit­i­cal be­liefs. If a Cab­i­net min­is­ter se­lects his per­sonal as­sis­tant from within the public ser­vice based on po­lit­i­cal be­liefs that are shared with his, that is not anti-con­sti­tu­tional. But if the Cab­i­net min­is­ter picks his per­sonal as­sis­tant from out­side the public ser­vice be­cause of his po­lit­i­cal be­liefs, then that most cer­tainly is an­ti­con­sti­tu­tional. Those last three state­ments are not quoted from the Om­buds­man’s re­port, but are my own in­ter­pre­ta­tion.

The Om­buds­man also re­minds Par­lia­ment in his re­port that any such re­cruit­ment from out­side the public ser­vice has to be made “in the gen­eral in­ter­est of the public ser­vice”. This would def­i­nitely elim­i­nate all those ap­point­ments of for­mer Su­per One TV staff. That suc­ces­sive gov­ern­ments have filled ‘po­si­tions of trust’ from out­side the public ser­vice does not make the prac­tice le­git­i­mate, the Om­buds­man says, be­cause the Con­sti­tu­tion does not pro­vide for the em­ploy­ment of peo­ple from out­side the public ser­vice on a po­si­tion-of-trust ba­sis, and no other piece of leg­is­la­tion can su­per­sede the Con­sti­tu­tion in this re­gard. In other words, Par­lia­ment can­not leg­is­late to al­low for po­si­tion-oftrust re­cruit­ment from out­side the public ser­vice.

An­thony Mif­sud is not the first Om­buds­man to bring this up. Joseph Said Pul­li­cino, his im­me­di­ate pre­de­ces­sor, had called for a par­lia­men­tary de­bate about it. Noth­ing has been done be­cause it suits the gov­ern­ment to do noth­ing about it. Put­ting peo­ple on the state pay­roll is one of the ways it has won votes and its large elec­toral ma­jor­ity. So, what about the Op­po­si­tion? Un­for­tu­nately, I now get the idea that the Op­po­si­tion doesn’t wish to do any­thing about it ei­ther, be­cause it has seen that the tool could be just as use­ful to it as it now is to Labour. Per­haps Adrian Delia could take up the mat­ter on one of his first for­ays in Par­lia­ment? Af­ter all, he is such a man of in­tegrity and doubt­less will not be think­ing of giv­ing Censu l-Iswed a po­si­tion of trust if ever he gets to walk up those fa­bled steps as prime min­is­ter.

The Om­buds­man, An­thony C. Mif­sud

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