Parliamentary Secretary Ian Borg really should not have jumped for joy as quickly as he did this week in the wake of the Permanent Commission Against Corruption’s report on his property development machinations.

The junior minister appears to believe he has been let off the hook in the wake of the PCAC conclusions of its investigations into Dr Borg’s Santa Katerina development permit. 

In a nutshell, the junior minister was not absolved from wrongdoing simply because the PCAC’s report found there were no charges under the Commission’s specific remit that would stick. What the Commission found was that the parliamentary secretary’s actions did not constitute corruption under the Criminal Code. What he did, whether it was criminal or not, was completely unethical and unacceptable on any yardstick – let alone that of a junior minister.

The Ombudsman has described his methods in applying for and obtaining a development permit as ‘devious’: he used another’s name to hide the fact that he was the de facto owner. Two years before Dr Borg’s permit was approved, according to the Ombudsman’s own report, the person who owned the land before had applied for a permit, but had been refused permission. The junior minister then bought the land and another nearby parcel, development policies were conveniently changed thanks to what the Ombudsman described as a ‘deliberate’ error on the part of someone at the Malta Environment and Planning Authority, and Dr Borg got his permit.

This week’s PCAC findings come less than a month after this newspaper exclusively published the Ombudsman’s own findings from what was a parallel investigation into the process and policies followed by Mepa in granting the controversial permit.  The Ombudsman had found that Dr Borg used a ‘devious method’ when filing the application and that Mepa had resorted to ‘facilitating’ and used ‘deliberate’ actions to ensure the permit was granted.

But according to the Prime Minister, action, if any, would be taken in Dr Borg’s respect only after the PCAC report, but the truth of the matter is that the PCAC investigation is trumped by that of the Commissioner for the Environment and Planning in the Office of the Ombudsman, a constitutionally-appointed body.

And while Dr Borg, and presumably the government at large, is celebrating his supposed exoneration, they are jumping for joy prematurely. And in so doing, it seems that the Prime Minister, through his lack of action so far, is selectively choosing which report to base his actions on.

The fact of the matter is that, in reality, not much has changed after the PCAC report. In fact, the PCAC’s first conclusion was that it accepted the Ombudsman’s report with its conclusions and recommendations, which were annexed with the PCAC’s own report.  In its second conclusion, the PCAC said that it “has not found any evidence to the degree required by the Criminal Code (beyond reasonable doubt) ... which can lead to the conclusion that a crime has been committed or that there has been an attempt to commit a crime or some form of complicity in a crime according to any of the articles mentioned in Article 6 of Chapter 326 by any of the witnesses in front of the PCAC”.

The conclusion does not rule out the possibility, or even the probability, that a crime may or may not have been committed – only that evidence of one under the Commission’s specific remit was not found. Nor does it pass moral judgement on the matter – a critically important aspect for a politician that is being conveniently ignored.

The PCAC’s report states that while this conduct does not fall within the scope of the 13 specific articles of law that fall within the PCAC’s corruption remit, the PCAC did not have the competence to state whether such behaviour falls under other legal dispositions, whether in the Criminal Code or in other criminal provisions in other special laws. Therefore, it is now entirely within the responsibility of the Minister of Justice, perhaps acting through the Office of the Attorney General, to determine if any other criminal action may be taken against Dr Borg under any other laws.

Standards of political accountability and good governance dictate that Dr Borg should have been sent packing as soon as the Ombudsman’s report was published. 

Moreover, based on the PCAC’s report, it is not even technically correct to state that the PCAC has exonerated Dr Borg from any criminal or other legal responsibility in the case. The ‘devious’ conduct as described in the Ombudsman’s report is ethically unacceptable and totally condemnable for anyone, let alone a parliamentary secretary.

Surprisingly, while the PCAC’s report dealt with the ‘devious’ comment in the Ombudsman’s report, it did not deal with the comment on ‘deliberate’ action on the part of Mepa. Consequently, the PCAC’s report does not shed any light on what may have motivated such ‘deliberate’ action on the part of what should be an autonomous planning regulator, especially considering how Mepa had rejected the previous two applications in the area in earlier years.

In the same vein, there is a defiant Mepa which persists in its rejection of the Ombudsman’s conclusions and recommendations concerning the permit issued on Borg’s property following a “grave error on the part of the MEPA”, as the Ombudsman put it. 

Mepa is refusing to submit to the moral authority of the Ombudsman, a constitutional office that exists mainly to protect ordinary citizens from the abuse of power by the government, its members and its agencies.

While it is entirely democratic for Mepa to form its own interpretation of planning policy, to make its submissions to the Ombudsman during investigations as in this case, and to voice its opinion publicly, it is also completely unacceptable that it insists on a confrontational approach towards the Constitutional authority of the Ombudsman. 

With Mepa being accused of having committed a grave but intentional error that paved the way for Dr Borg’s permit to be granted, Mepa cannot now expect to be the judge in its own case.

The PCAC itself, in its report, submitted to the superior authority of the Office of the Ombudsman, noting that whereas the Ombudsman was a Constitutional institution, the PCAC was not. The PCAC also noted that the decisions of the Ombudsman cannot be contested in court, and less so by the PCAC itself because it was not empowered neither by the Ombudsman Act nor by the PCAC Act to do so. 

The PCAC therefore, neither reviewed nor disputed the decision of the Ombudsman, but instead proceeded to accept the Ombudsman’s report in its entirety. 

If the PCAC accepted the Ombudsman report and made it its own, there is no reason why Mepa does not follow suit. At this point, Mepa must “review the permit and reassess the application by applying the existing policies in the same manner as in PA 1637/12” as recommended by the Ombudsman.

Short of such voluntary action, the Prime Minister must, at the very least, ask Mepa to respect the Constitutional authority of the Ombudsman and order the whole permit to be reviewed from scratch, if it is to avoid another bad governance saga that will come back to haunt it.