Government and the Opposition have in tandem turned the parliamentary appointment procedure of the second Commissioner for Standards in Public Life into a farce.
First, they both engaged in behaviour unworthy of their office that is not in the national interest when they failed to agree on a suitable candidate for this post as the Commissioner for Standards in Public Life Act dictates them to do.
Second, when the Opposition shot down the candidate proposed by government, it failed to give robust and public reasons for such objection. If, as was reported in the media, the objection appears to have been that under the leadership of the government nominee, the former Chief Justice Joseph Azzopardi, the number of pending cases increased considerably in the Constitutional Court and the Court of Appeal, the Leader of the Opposition did not back such flimsy assertion by any published report or statistics to support this contention. Nor did he consider that unequivocally our judiciary have more cases per capita then certain other foreign courts. Nor has he taken stock of the legislative output of Parliament and Brussels that continuously dish out new laws like cheesecakes, such that a judge’s task continues to increase manifoldly, both in terms of quantity and of complexity.
Third, as a tit-for-tat reaction, the government did not appoint a new Ombudsman even though both government and opposition had agreed on the appointment of a suitable candidate for this post nearly four months ago, surely since 18 November 2023, when a motion to that effect was tabled by the Prime Minister in the House. But, wonder of wonders, the Leader of the House did not find a slot to place it on the House agenda before 6 March 2023. Government has unreasonably tied the appointment of an Ombudsman with that of a Commissioner for Standards in Public Life as though there is some natural linkage between these two offices of state, when these offices are totally unconnected to each other.
However, because of this spiteful attitude of government, the office of the Ombudsman continued to be held on an acting basis by the previous incumbent whose term of office expired nearly two years ago. Through this disgraceful behaviour, the Prime Minister showed that he: (i) is far from qualifying as a statesman; (ii) has put political partisan interests before the national interest; (iii) has put personal pique with the Leader of the Opposition above good governance and the rule of law; and (iv) showed how petty, unprofessional, and inefficient he is when administering one of the highest offices of the state – that of Prime Minister – by failing to seriously and promptly fill a vacancy in such an important office of Parliament for nearly a two year period.
As both government and opposition, for their petty reasons that do not serve good governance but maladministration, had not agreed on the appointment of a Commissioner for Standards in Public Life, the cases for investigation at this office continued to increase without however being investigated, let alone concluded. Nearly six months have passed since the resignation of Malta’s first Standards Commissioner. Of course, this course of inaction might be convenient for government as with no Standards Commissioner in office, there is nobody who can authoritatively pen embarrassing reports against government ministers, parliamentary secretaries, and backbenchers. But this hiatus will be short lived. Once the Standards Commissioner starts delivering, the reports will come out all in one go, rather than being spaced to give the government breathing space, so much so that government will be besieged by more bad publicity relating to its members’ dismal breach of ethics, thereby putting more pressure on government. For admittedly government cannot boast of an impeccable record for ethics and rule of law observance. But, provided the FATF, the Council of Europe, and the EU continue to remain asleep in their rule of law oversight of Malta, government would have won the day.
The Standards in Public Life Act has been amended very recently to introduce an anti-deadlock mechanism whereby government can have it its own way when making an important appointment as that of Standards Commissioner. It could do so because the office of Standards Commissioner and the relative appointment procedure has not been constitutionally established; in fact, it is established by ordinary law. It is not the purpose of this piece to identify all the deficiencies in this law but suffice it to say that the Commissioner is a neutered one as that office has no real efficacious power. It tends to be more ornamental, so that government can boast that democracy exists in Malta at least on paper and that Malta is not an autocratic state. But this is far from the truth: Malta is nothing but a paper democracy, a lip service democracy, not a real democracy. It is an autocracy with the Prime Minister as King and Cabinet Ministers as oligarchs.
Indeed, it is the parliamentary committee for standards, not the Parliamentary Commissioner, that decides upon the reports referred to it by the Commissioner. Needless to say, the parliamentary committee operates on the constitutional principle, not of good governance as one would expect in a democracy, but on the convoluted pragmatic partisan principle of ‘your rub my back and I will rub your back’, an emerging principle of constitutional mediocrity and solidarity amongst code of ethics violators which leads to a guaranteed absolution of any responsibility for one’s misdeeds through collegial partnership.
Ideally, no law should establish an anti-deadlock mechanism for that is symptomatic of immaturity in the conduct of discussions between the Prime Minister and the Leader of the Opposition who are called to decide upon appointment to offices of state in the public interest. But Malta being Malta, where political immaturity forms part of our political class’s DNA, our politicians being what they are, makes an anti-deadlock mechanisms imperative as otherwise there would be no resolution to discord in state appointments. The anti-deadlock mechanism used to appoint the second Standards Commissioner nevertheless has contributed to divide the country for, instead of the Prime Minister and the Leader of the Opposition engaging in fruitful, mature, and serious discussion on who should be appointed Standards Commissioner, they have made a farce of this institution of state.
Through the anti-deadlock mechanism, the government has appointed, by imposing on the opposition, its own preferred candidate that has been objected to tooth and nail by the opposition for three consecutive times by a vote in the House. This does not augur well for a fruitful cooperation between the opposition and the Standards Commissioner bearing in mind that the latter is an Officer of Parliament and has to work hand in hand both with government and opposition.
It also places the appointee at a considerable disadvantage from day one. It reminds me of past times where President Ċensu Tabone was boycotted by the Labour opposition or where the Nationalist Party elected MPs refused to take up their seats in Parliament for around two and a half years allowing a total carte blanche for a Labour government to rule and legislate without an opposition in the House. For whatever the Standards Commissioner, as a government appointee, will recommend or decide upon will be seen suspicious by the opposition who have confirmed threefold that they have no trust in that person, irrespective of whether their reasons are well grounded or border on the trivial. There is thus bad blood between these two institutions of state that is surely not conducive to a healthy working relationship.
The solution to avoid a repetition in the future of this impasse, once we have appointed immature persons as Prime Minister and Leader of the Opposition who have failed miserably at guaranteeing the common good, is to dispossess them from making such appointment hoping that one day they will grow up, abandon immature behaviour, recognise the importance of their office, and start dealing with matters of state in the public interest, not in the partisan interest of the political party they hail from. Until this learning and educative process takes its toll, it should be the President who represents the unity of the state that should appoint the Standards Commissioner.
Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta