Minister Owen Bonnici appears to have been contaminated by the cowboy virus that the Prime Minister is purposefully spreading amongst his Cabinet ministers. Sources close to the Superintendent of Public Health’s Office have declared that no vaccine has yet been found for this virus that, although not deadly, is the main contributing factor in government’s misrule of law. The World Health Organization is far from declaring this virus to have reached the level of a global pandemic even though it has infected other states, notably those that have no respect for democracy, dictatorial states, and failed states, not to mention other banana republics of the Maltese flavour. Thank God for the Prime Minister that this virus is not listed in article 244A of the Criminal Code as an infectious disease that can be knowingly transmitted as this act is punished by a four to nine year term of imprisonment. Nor to-date is there a known requirement to wear masks during Cabinet meetings or to keep social distancing not to be afflicted by this pernicious virus.
In full loyalty and truthfulness to his boss, Minister Owen Bonnici is implementing the unwritten Cabinet policy of misrule of law. He has tried to make it his undeclared task to excel therein. In a nutshell, this policy is all about ignoring the law and essentially doing whatever one wants with no shackles attached by the rigour of the law. This is known as Cabinet’s cowboy policy. In the past, this approach of governance, the epitome of bad governance, was associated with Louis XIV’s famous words: L’état c’est moi: ‘I am the state’, the implication being that the King was above Parliament and that the latter could not interfere in what the Monarch did.
That was the era of absolutism. Indeed, for those who are not history enthusiasts, there is no need to go back to 13 April 1655 when these words were pronounced to appreciate their meaning as they materialised only a few weeks ago in Malta. We all remember the now pioneering colossal u-turn in Maltese parliament history, a first that deserves full mention in the Guinness Book of Records. This is when, after the Labour Party in Parliament overwhelmingly crushed in the most disrespectful way to the victim concerned an Opposition motion to call an administrative inquiry into the death of Jean Paul Sofia, the King – not in Parliament as the expression goes way back in history but – outside of Parliament proclaimed that L’état c’est Robert!. This meant that notwithstanding a parliamentary approved resolution defeating an opposition motion, government has had second thoughts thereupon. Cabinet, in full contempt of the parliamentary resolution proclaimed itself superior to the House of Representation. This is what Robert’s Law is all about.
Through great ingenuity that makes Albert Einstein’s theory of relativity pale into insignificance, government managed to overturn in a unparliamentary fashion its own previous held position in the House of Representatives, ignored and contradicted the parliamentary majority decision in the House in its favour, and affirmed what the government had for whole months before been totally denying, leading to nothing but a colossal u-turn that is now written down in the annals of Maltese parliamentary history. In this way, history has repeated itself, not in King Louis XIV’s French autocratic regime but in the ‘democratic’ banana republic of Malta that (supposedly) respects the rule of law.
The only solace that the Prime Minister can draw from this historical event of national pride and importance for his Cabinet is that his Ministers are all sheepishly following suit, competing together to excel more than their Prime Minister at it, and are now adopting unquestionably this legacy inherited from Joseph Muscat of whom the Prime Minister is the loyal continuation thereof lock, stock and barrel. Perhaps it might not be a bad idea after all to amend the National Holidays and Other Public Holidays Act and celebrate U-turn Day as a national holiday instead of Independence Day, Republic Day, and the whole list of other national holidays that we have as though two are not enough for a tiny island as Malta. At least we would celebrate only one national day!
Robert’s cowboyish attitude is now enshrined in Cabinet policy and practice. Of course, the Prime Minister, as the first amongst equals, remains the main exponent of this government adopted and cherished policy of misrule of law but ministers, desirous to be seen by the Prime Minister as being his carbon copy, lest he might opt for a reshuffle of ministerial duties and ditch some of them out, have followed suit.
The latest episode in this direction is that of Minister Owen Bonnici. The crux of the matter is that the Minister approved regulations without consulting thereupon with the National Council for the Maltese Language in terms of the law that establishes that Council. Was it a genuine mistake? I very much doubt. An oversight perhaps? It does not appear at face value to be so. Incompetence? Surely this cannot be excluded. Or simply abuse of power? I hope not!
When the law mentions the term ‘consultation’, it requires the carrying out of a procedure that normally starts with the minister concerned sending out the draft Legal Notice to the person or body to be consulted. The latter, following discussion in its internal structures, will decide on the matter and convey back its feedback to the minister concerned.
Once the minister decides to move on, the draft legal notice is sent for legal vetting and, once cleared, to Cabinet for its approval. Before doing so, however, the legal notice must be signed by the minister concerned and by the person or body consulted once it must be stated in the Legal Notice that such person or body has been consulted.
Now although the Nationalist government had once decided that all legal notices, before they are published in the Government Gazette, had to be approved by Cabinet, this is not a correct procedure for there is no law in Malta that mandates it. Thus, if a legal notice emanates from a public corporation and the Cabinet disagrees with its contents, Cabinet has no right to consider the legal notice, let alone approve it, reject it, or request that it be changed. Cabinet’s approval adds nothing to the validity of the legal notice and Cabinet’s rejection is purely and simply an illegality, an abuse of power pure and simple. If a public corporation or an independent authority or office has law making powers vested in it directly by Parliament, Cabinet abuses its powers if it were to stop that authority or office from publishing that legal notice in the Government Gazette in the way that body would have approved it. Even the Director of the Government Printing Press and/or the Director of Information (whoever is competent in the matter) will be in breach of law and abusing of his/her powers should s/he refuse publication of a legal notice duly approved by the authority or office empowered by law to approve it but does not have Cabinet approval. For Cabinet approval is nothing but an administrative procedure that runs contrary to the law.
By the way, nor is the Prime Minister’s signature required ad validitatem (to make it valid) on legal notices unless it happens to be a legal notice that is made by the Prime Minister himself. Although the Prime Minister’s signature will not invalidate a legal notice (the more signatures there are the merrier!), in the same way that if Cabinet approves a legal notice, that approval does not invalidate the legal notice, all this procedure is totally unnecessary. As we say in Maltese, this is all ‘xogħol fil-bażwa’. But politicians delight themselves in being considered important where their signature is needed, even if it works out to be legally entirely superfluous. It is a case where the Labour Cabinet fell hook, line and sinker for this Nationalist Cabinet decision.
That Cabinet is inferior to Parliament in terms of the Constitution is well known. But in Malta, this constitutional provision works out in the obverse way. Parliament is inferior to Cabinet. As seen from the above example drawn from a Nationalist administration and as has been seen lately when the Labour government decided to totally ignore the resolution that they voted for in the House to overturn it without even having the decency to go back to the House and present a counter-resolution to have it reversed, as parliamentary practice dictates, what happens on the ground is literally beyond comprehension. Indeed, it is a situation where the law says one thing (normally good) but what actually happens is the opposite (normally bad).
Returning back to Owen’s failure to consult, it is pertinent to point out that the Minister himself acknowledges and declares that he has not held any consultation with the Council in the legal notice itself. This is because, contrary to established procedure, there is no reference in Owen’s legal notice to the fact that he is making the regulations ‘in consultation with the National Council for the Maltese Language’, thereby admitting that no such consultation has even took place and thereby being in breach of article 24 of the Maltese Language Act that mandates such consultation. This is what is known as the argumentum ex silentio, that is, the argument from silence: once the legal notice does not state that consultation has taken place, contrary to established procedure, then this silence in the legal notice is indicative that no consultation has taken place. For if it really did, it would have been declared to be so. One maxim of statutory interpretation upheld consistently by our courts is that where the law wants to make a point, it makes it, and where it does not want to make a point, it remains silent (ubi lex voluit dixit, ubi noluit tacit).
Of course, if consultation was carried out: (1) it would be so stated explicitly in the legal notice itself as proof thereof; (2) the legal notice would be signed by the Chair of the National Council for the Maltese Language; (3) there would exist a paper trail of written correspondence on the draft legal notice between the Council and the Minister; (4) the minutes of the National Council for the Maltese Language would reflect the consultation that would have taken place and the Council’s feedback thereupon; and (5) the Cabinet paperwork (the Minister’s Memorandum to Cabinet and the signed legal notice) would have also reflected such fact. I thus look forward to a Department of Information press release publishing the above correspondence and information to put my mind at rest that all was done above board and that the post of Executive Head was not invented out of the blues (or reds?) on Castille instructions simple to appease an unmeritorious red-eyed government sympathiser.
That this was a rushed drafted legal notice is clear not only from the omitted consultation requirement ingredient – that would take time to conclude but was not possible as the minister was in such a rush to appoint the person his boss indicated – but also from the mismatch between the Maltese and the English versions of the legal notice. Perhaps the minister responsible for justice can explain whether the legal notice was vetted by his ministry before approval by Cabinet and published in the Government Gazette. For if this was the case, then why does the English version of the legal notice not reflect the Maltese version?
There was thus a triple blunder from government’s side: the Maltese language minister, the justice minister, and the Prime Minister.
Interesting, in so far as the selection of the Executive Head of the Centre of the Maltese Language is concerned, the pertinent provision approved by Minister Bonnici, typical of the Muscat-Abela legacy of ministerial arrogance, favouritism, and abuse of power, reads as follows: ‘4. (1) The Executive Head shall be appointed by the Minister. (2) The Minister may issue a public call before appointing a person as Executive Head. The Minister shall ensure that the selected person has professional qualifications, skills and competences through which he can fulfil his role’.
It is the minister who decides whether to issue a public call for applications or not. Note the word ‘may’ not ‘shall’. If the minister elects to fill the office of Executive Head on a partisan basis, that is, not on meritocracy grounds but favouritism dictated by Castille, then the minister proceeds without a call for applications as was the instant case. Meritocracy, that much flaunted cry of Joseph Muscat when Leader of the Opposition, has gone to the dogs. In the instant case, the Minister, as legislator, appointed himself under his own regulations judge, jury, and member of the selection board and all this without any input by the National Council for the Maltese Language for whom the Executive Head must serve. All this happens when the Maltese Language Act already establishes a procedure in Part III (Officers and Employees of the Council) for recruitment of staff with the Council. According to that law (article 14), it is the Council – not the minister – which appoints staff to serve the Council.
But in the minister’s legal notice – clearly in breach of the Maltese Language Act, it is the minister who appoints the Executive Head to serve the Council. Even the terms and conditions of employment are to be established by the Council in terms of that Act, surely not by the minister through a legal notice. The minister has therefore created an unnecessary parallel institution simply to implement a Castille directive and appease a Labour Party sympathiser, a legal notice that runs counter to the Maltese Language Act itself and all this done for purely partisan reasons not for the benefit of society. Hence, the minister has a lot of explanation to make to convince the reader that he acted correctly. Furthermore, the legal notice is null because it imposes a charge on the revenues of Malta when there is no authorization to that effect by Parliament. The latter authorises the Council, not the minister to employ officers with the Council and to dictate to the Council whom to appoint. All the monies disbursed so far under the legal notice for the said Centre, as proposed by the legal notice, once the latter does not comply with the parent act, are simply an abuse of power and must be refunded in full.
The morale of this story is clear. Bad governance at its best. No compliance with legal provisions. Flagrant breach of legal provisions. Abuse of power in not carrying out the mandatory consultation procedure. Breach of the rule of law. Establishing a parallel recruitment procedure by legal notice in breach of the primary law. Authorizing disbursement of expenditure in breach of the primary law. No accountability and transparency of decisions taken at ministerial level. No respect for Parliament, whose laws are being subverted, and for its established institution – in the instant case, the National Council for the Maltese Language. The Council was not involved in the approval process of the legal notice in question, nor in the appointment of the Executive Head. Favouritism in how the Executive Head of the Centre of the Maltese Language was chosen. No call for applications. No selection procedure except for the Minister handpicking whoever he deemed fit for the post in the most non-transparent and unaccountable manner. Who spoke of conflict of interest and absolutism? Does not all this hark back to the times of King Louis XIV? But even if the Council were to approve the legal notice, that does not absolve the minister from the mistakes in the legal notice for what is null from the very beginning (ab initio) cannot produce any effect (quod nullum est nullum producit effectum). It also means that the appointment of Executive Head is in breach of the Maltese Language Act and, consequently, null and void.
My question is: could maladministration and bad governance be worse than this? The answer is an emphatic ‘No’. A final appeal from my end: Prime Minister and Ministers – please learn from Owen’s kawlata kawlatorum as he has raised the standards of maladministration and bad governance to unprecedented heights such that it will make it impossible for you to surpass him to comply with your government’s policy of misrule of law. Quite an arduous challenge indeed! I am sure, nevertheless, that I will not be disappointed even if, unfortunately, Owen will lose his pride of place and primacy at the cabinet table by being defeated by a more entrepreneurial cabinet minister vying for the misrule of law limelight. But bad publicity is always better than no publicity at all for a politician for it keeps him in the news – even for the bad reason – whilst giving the false impression that he is doing the right thing. But then, in government, who really cares what is right and wrong?
Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta