The Malta Independent 16 December 2019, Monday

‘Nothing at law prohibits MPs from taking up government appointments’ - government

Kevin Schembri Orland Monday, 11 November 2019, 17:30 Last update: about 2 months ago

The government's legal advice is that there is nothing at law that puts members of parliament who take up a government appointment in some form of conflict of interest.

On the 5th of July 2019, the Commissioner for Standards in Public Life George Hyzler published a report on an investigation initiated by a complaint submitted on the 14th of January 2019 by MP Godfrey Farrugia. The Commissioner was asked to investigate whether the engagement or employment of backbencher parliamentary deputies as consultants or employees of the government or bodies set up by the law represented a conflict of interest or a breach of ethical or statutory duties. Among other things the Hyzler report proposes that members of Parliament should be disqualified from the House of Representatives if they accept contracts of any kind from the government or public entities. Similarly, MPs should not be allowed to accept appointments as persons of trust or as members of government boards and committees. 

On the 8th of July 2019, the Prime Minister tasked Principal Permanent Secretary Mario Cutajar with analysing the Commissioner for Standards in Public Life's report and coordinating this analysis both from a legal and administrative aspect.

The government published the full report by the Permanent Secretary, in addition to legal advice by Attorney General Peter Grech, and Constitutional Expert Ian Refalo.

The government said that its analysis found that the Constitution in no way prohibits Members of Parliament from being engaged by government, and said that the Constitution itself "allows for some public officials to hold a Parliamentary seat and gives the ability for Parliament to legislate and remove other prohibitions."

The government said that the analysis also highlights that since before Independence MPs were able to sit on public boards and entities.

While examining what goes on abroad, the government said, "the analysis explains that the Commissioner for Standards' report makes no distinction between the Permanent Public Service and temporary appointments, like those on the basis of trust, and does not consider regulations introduced to regulate these engagements."

"In this analysis of the Commissioner for Standards in Public Life's report, an in-depth examination of all the considerations which emanated from the report was given, and it was essentially found-even from the research conducted and the advice given - that when parliamentary deputies are engaged or appointed, in both cases temporarily on a trust basis, either to provide counsel to Ministers in public entities, or in boards of public entities, no breach of the Constitution is being made, no disavowal of the principles of the Constitution is taking place, no laws are being broken, and that one cannot say that there is a conflict of interest for the parliamentary deputies as so appointed."

Among the reasons listed for reaching the conclusion, are: that the Constitution is one based on the rule of law where, for instance, you have a Minister and a Parliamentary Secretary (the Executive) who are also parliamentary deputies (the Legislative); The Constitution itself is not so exacting so as to prohibit all those who are public officers or public employees from being parliamentary deputies, so much so that the Constitution itself provides for two exemptions with regard to cases where public officers cannot be parliamentary deputies, and, more than this, grants the power to Parliament to legislate in such a way either for public officers or employees to become elected as parliamentary deputies; The Members of Parliament (Public Employment) deals with and regulates situations where public officers are elected to Parliament, and nowhere refers to situations where a member of Parliament is given an appointment and/or temporary engagement within the public administration.

Other conclusions include that the engagement of parliamentary deputies on a trust basis, both to provide counsel or to serve in some other function within a Ministry or a public entity, are not structures in the permanent public service, but rather ones made on a temporary basis and which are then dissolved and terminated once the Minister who engaged the said individual ceases to remain in their position. "Regarding the appointment of parliamentary deputies on government boards and public entities, nowhere is it stated in the report itself that the law is being broken when these are appointed. From Independence to the present, a number of public entities have been set up which did not prohibit parliamentary deputies from serving on their boards."

This analysis, also considers that from the Commissioner for Standards in Public Life's report one might come up with proposals for change which should be discussed. As an example, the analysis mentions that "the experience of other countries with the same political and administrative system as ours shows that not only did they administratively regulate temporary engagements on a trust basis but that they also did so legally. In our country these engagements are already regulated administratively. The government has already stated that it agrees that there should be legislation in this regard. It is recommended that such legislation define these engagements in order to bring the matter to a close"

In addition, "it is further recommended that because historically no clear line emerges regarding the appointment of parliamentary deputies on boards of public entities, that the functions of every public entity be evaluated in order to determine when parliamentary deputies may or may not be appointed".

Read the full analysis here

Read the Attorney General's advice here

Read Ian Refalo's advice here

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