Standards Commissioner George Hyzler is insisting that any job given to backbenchers constitutes a blatant conflict of interest.

“How can backbench MPs function effectively as members of such committees if they are dependent on the government’s pleasure for their livelihood?”, he said in a report published today.

He was replying to what principal permanent secretary Mario Cutajar said in response to an original report compiled by Hyzler in July.

On 5 July 2019 the Commissioner issued a report in which he expressed the view that the practice of giving government jobs to backbench MPs is fundamentally wrong.

On 11 November 2019 the Principal Permanent Secretary published a response in which he argued that there is nothing wrong with this practice.

In his report today, the Commissioner for Standards explains in clear and direct terms why he disagrees with the Principal Permanent Secretary’s views. The Commissioner says that the issues at stake are not obscure legal matters of concern only to lawyers. “They are fundamental issues that concern every citizen of this country,” he says.

“I have carefully considered the arguments put forward by the Principal Permanent Secretary and his legal advisors, but I am unable to agree with them,” Hyzler states.

“The Principal Permanent Secretary and I seem to be departing from different standpoints. My goal is to promote the raising of standards by improving upon the principles that underlie our Constitution, whereas the government, as shown in the Analysis, is attempting to justify the status quo.”

The Principal Permanent Secretary argues that the concept of separation of powers does not really apply to Malta because it is not part of the British model on which Malta’s Constitution is based. Hence, there is no reason why backbench MPs should not carry out their function as members of parliament and serve government simultaneously.

“I consider this argument to be incorrect because:  The independence of Parliament from the government is a very important principle in the UK – so much so that the UK has a limit on the number of MPs who can be appointed ministers and the number of ministers who can vote in Parliament at the same time.

In Malta, as in the UK, the government of the day is accountable to Parliament, which should keep the government under scrutiny. Backbench MPs play a very important scrutinising role, particularly as members of the various parliamentary committees such as the Public Accounts Committee or the Standing Committee on Public Appointments.

How can backbench MPs function effectively as members of such committees if they are dependent on the government’s pleasure for their livelihood? This is an obvious conflict of interest.

“The Principal Permanent Secretary’s analysis, based on legal advice, seems to suggest that somehow I advocated absolute separation of powers. I certainly did not suggest that the powers of the different organs should be held and exercised in watertight compartments. On the contrary, there should be checks and balances. It is precisely the elimination of one of these checks through the engagement of backbenchers with the executive that I criticised in my report."

Cutajar argues that the Constitution allows the government to employ persons on trust, that is to say without a selection process that is based on merit. Hence, he argues, there is nothing in the law to prevent MPs from being given such appointments.

"This argument is flawed because: Article 124 of the Constitution defines non-military posts in government employment, with specific exceptions, as posts in the public service of Malta. Article 110 requires such posts – again with specific exceptions – to be filled on merit under the scrutiny of the Public Service Commission. None of the exceptions in either article caters for appointments on trust.

While it is correct to state that persons of trust are being appointed on oneyear contracts, articles 110 and 124 make no distinction between permanent and one-year appointments. The Constitution still regards the latter as appointments in the public service. The Principal Permanent Secretary also argues that persons of trust are not public officers (public service employees) because their appointments do not go through the Public Service Commission. This is the opposite of what is stated in the Constitution. According to the Constitution, appointments are to be made through the Public Service Commission because they are appointments in the public service, not vice versa, Hyzler says.

The Principal Permanent Secretary draws a comparison between members of the governing boards of public entities and public officers who lecture at the University, Hyzler writes. The Constitution itself permits the latter to engage in politics. On this basis he sees no reason why the boards of entities that are “altogether operational in nature” should not include MPs.

"In my view this argument is incorrect because: There is no comparison between board members and University lecturers. Board members can be better compared, if at all, to senior officials in the public service, because both have management responsibilities. Even the Principal Permanent Secretary agrees that senior officials in the public service should not be members of parliament.

The laws governing various public entities specify that the responsible minister can issue instructions to the entity on matters of policy only. This is intended to keep politics out of entity operations. Putting MPs on the boards of entities, with the power to decide on operational matters, is in blatant conflict with this principle, Hyzler says.

Full reply here