One of the main ingredients of Robert Abela’s unofficial Cabinet approved policy of misrule of law is abuse of power. Another is arrogance.

In today’s contribution I deal with a recent abuse of power and arrogant behaviour by Minister Owen Bonnici in relation to the legal notice approving the establishment of the Centre of the Maltese Language uniquely intended to employ Norma Saliba as its Executive Head without recourse to a call for applications lest she should not be selected in the absence of any qualifications she possesses in the Maltese language.

The National Council for the Maltese Language has correctly stood its ground against ministerial bullying. Indeed, the minister first presented the Council with a fait accompli and then expected them to bow their head and approve whatever he commanded. The Council has, however, correctly rubbished the minister’s arrogance and abuse of power.

In a Department of Information press release issued on 31 August 2023 (PR231287), this Department states that the consultation required of the minister responsible for the national language – Minister Owen Bonnici – had taken place with the Council through the ministry’s permanent secretary. The DOI admits this black on white. Another tactical mistake! Article 24 of the Maltese Language Act, when requiring consultation with the Council, mandates that such consultation must be carried out by the minister and not by any other person whosoever, including a permanent secretary.

What is interesting about the DOI press release is not much its attempt to tarnish the reputation of the Council but what it fails to say. Whilst government is maintaining that consultation was carried out with the Council and that the Council’s President did not oppose what the ministry through the permanent secretary wanted the Council to swallow down its throat, the most important evidence of such consultation was not published.

Interestingly enough, the DOI failed to publish the letter that the permanent secretary wrote to the Council together with the text of the draft legal notice being consulted upon. Nor was any document published by the DOI to the effect that the permanent secretary was acting on instructions of the minister and was carrying out a consultation process. Nor did the DOI press release publish the reply received from the Council or the minutes of the Council whereby it would have emerged that the Council met specifically to discuss the draft legal notice that it was being consulted about and provided its feedback thereupon. The reader might ask why was the DOI press release not thorough enough as one would have expected? The reply is very simple. No consultation had taken place, except perhaps in the minister’s mind when he was dreaming in cloud cuckoo land, as the publication of such incontrovertible evidence above-mentioned, had it existed, would have clearly and unequivocally proved that consultation had taken place.

 

Instead, the only official evidence so far published by the minister himself is the legal notice itself that omits to mention that such consultation had taken place and that such legal notice has not been signed by a Council’s representative. If this were the case – which it was not – the DOI would have rushed to publish with its press release the approved legal notice with the Council President’s signature.

Subsequent to the DOI’s press release, the Sunday Times, on 2 September 2023, published WhatsApp chats between ministry officials and the Council’s President. The ministry’s intention behind the publication of these chats must have been to give the impression that consultation had taken place, if not also to intimidate the Council and to put pressure thereupon to succumb. It is quite odd for official consultation mandated by law to be carried out – unorthodoxly – via WhatsApp instead of through official written correspondence where copies of that correspondence are filed and minuted in the appropriate government file.

Since when has the public service adopted WhatsApp as a means of communication between the service and other entities? Perhaps the Principal Permanent Secretary could clarify this new procedure. Is this the seriousness of how consultation obligated by law takes place today? At any rate, if these WhatsApp chats are the consultation process to which the DOI press release is referring to, then they do not satisfy – in terms of the Maltese Language Act – the dictate of the law in so far as consultation is concerned. On the contrary, by its own admission, the ministry is unequivocally informing us that no consultation in the form required by the law has taken place once consultation has to be between the minister and the Council, not between a permanent secretary on behalf of a minister and the Council.

This emerges clearly from a reading of article 24 of the Maltese Language Act. The least that the minister could have done was to officially write himself to the Council to consult therewith on the proposed (illegal) regulations establishing the Centre of the Maltese Language and for subsequently appointing thereupon Norma Saliba as its Executive Head. However, he failed to do so as otherwise the DOI would have been the first to publish such letter and perch it all over the internet for one and all to see. When the law entrusted the consultation procedure to the minister and not to the permanent secretary that was clearly for obvious reasons.

First, consultation on draft legal notices is not a civil service administrative task but a ministerial political task. A reading of both the Constitution and the Public Administration Act nowhere state that (a) ministers can delegate to permanent secretaries consultation tasks with entities falling within their respective ministry; and (b) permanent secretaries are authorised to perform ministerial consultation exercises without a minister’s written or tacit act of delegation. The minister should have never involved his ministry’s permanent secretary in such delicate task as it goes beyond her responsibilities. She is a civil servant not a politician.

Second, it is not for the permanent secretary to negotiate with the Council the terms of a legal notice as there is no law that gives her such power.

Third, the legal notice was not going to be signed by the permanent secretary but by the minister. Hence, the final say was not that of the permanent secretary but of the minister who was totally detached from the consultation process.

Fourth, there is no provision in the Maltese Language Act that defines the term ‘minister’ to include a permanent secretary or any other person. Consequently, the minister could not delegate the consultation task to a permanent secretary. We all know of the legal maxim that a delegate (in this case the minister) cannot in turn delegate his authority to another person without parliamentary approval (delegatus non potest delegare). For the minister is parliament’s delegate.

Fifth, the law in Malta that allows a minister to delegate his/her powers is the Ministers (Delegation of Functions) Act. In terms of article 3 thereof, a minister may delegate his functions to a parliamentary secretary, but never to a permanent secretary. He could have legally delegated such task to the parliamentary secretary in his ministry but failed to do so.

Sixth, since when is official consultation carried out via WhatsApp where no record of these messages is stored in the appropriate ministry file? How will such messages be filed and subsequently placed at the National Archives? Finally, prior to making available those chats for publication, did the government obtain the consent of the Council’s President to do so? What has happened to the secrecy of consultations under article 133 of the Criminal Code? Such chats should have not been published once consultation is out of its very nature a secret process, not only because there is a legal requirement against their publication but even out of courtesy. This apart from the fact that the permanent secretary should not have been privy to such consultations, let alone leading them. But the main point is that these chats do not amount to consultation in terms of law. Hence, the Council is correct to state that there was no consultation.

When the minister delegated his powers to the permanent secretary in his office, he was abusing his powers as he has no such power of delegation. When the permanent secretary carried out the alleged ‘consultation’ with the National Council for the Maltese Language, if this truly was the case as the DOI has failed to publish the relative written correspondence (the informal WhatsApp chats were published by the Sunday Times), that have no legal currency in terms of article 24 of the Maltese Language Act, the permanent secretary was abusing of her office as she has no authority vested in her by the Maltese Language Act to consult the Council on policy matters that the law – correctly – reserves to the political head of the ministry, even if she might have well been directed to do so by the minister.

The minister has no power to delegate the consultation process and consultation is not an administrative civil service matter. In other words, whatever ‘consultation’ (sic!) had allegedly taken place between the permanent secretary and the Council, whether through official written documentation or WhatsApp chats, the outcome is one and the same – they are all null and void as such ‘consultation’ (sic!) runs counter to the provisions of the Maltese Language Act that assigns such function uniquely to the minister, a function which nonetheless he failed in his legal duties to carry out himself in breach of the law as attested by the DOI press release itself and the legal notice he signed.

There is no doubt that this is a magna kawlata kawlatorum legally speaking for out of all the government documents released so far and those in the public domain – the legal notice itself, the DOI press release, and the WhatsApp chats, all clearly and unequivocally point in the direction that, as the Council is stating, there has been no consultation between the minister himself and the Council. There is no shred of evidence to this effect and this irrespective of the illegality of the regulations and the Executive Head’s selection and appointment all decided – wrongly of course – by the minister.

Now if the minister were a humble man, which clearly he is not as otherwise no DOI press release would have been issued other than one accepting full and unconditional responsibility for the gaffe on his part, he should have revoked the legal notice as the Council asked him to do in its judicial protest and did what parliament required of him – to properly consult the Council. But the minister is his own enemy: he has cornered himself and is slamming all doors that can redeem him in his own face, is entrenching himself in his own castle whilst disposing of all the keys of the padlocks he used to barricade himself therein leaving no possibility of escape. In this way, he remains blocked in a mouse trap entirely of his own creation.

Political maturity dictates that he accepts fault, apologizes to the Council for his abuse of power and arrogant behaviour, sincerely and honestly admit that the consultation procedure was legally and administratively flawed and – once still in time before the Council institutes a court case against him – revoke the legal notice that does not enjoy a shred of legality. After all, we all commit mistakes, some more than others and some more serious than others. Otherwise, he will corner himself and have no way out.

I am already seeing the minister in the witness box being asked about the consultation he himself carried out with the Council and to provide written documentation to this effect. I am also seeing the permanent secretary in the witness box being grilled on the legal authority she enjoyed to carry out the consultation on behalf of the minister. Perhaps she can quote a provision of the Public Administration Act to support her action or some directive issued by the Principal Permanent Secretary under that Act. How can these, and other pertinent questions of maladministration, be convincingly replied to?

What will now happen if the minister does not backtrack and do the most honourable, proper, and decent thing to do, is that he will inevitably drag the Council into a lawsuit unwanted by it but imposed upon it by the minister in the same way he wanted to impose Norma Saliba on the Council. Precious time and money allocated to the Office of the State Advocate to defend an indefensible and lost case right from its inception will be spent and, all things being equal, he will never win the court proceedings. But to satisfy his ego, arrogance, and abuse of power, he will leave the matter drag on and on in the courts until he is finally judicially and publicly humiliated first in the court of first instance then at appellate stage. All this when he could have revoked the legal notice and did the right thing.

Of course, as this was an abusive and arrogant act on the part of the minister, the Council should not only sue the minister in his official capacity but also personally so that once the case is decided against the minister, it will be the minister (not the State Advocate) who will have to fork out the expenses incurred by the Office of the State Advocate to conduct the said litigation and to cover all the expenses incurred by the Council. This is what ministerial accountability is all about. There is ample case law to this effect. The good thing is that it will be the court that will liquidate the damages in question and the Council can recoup them from the minister’s salary/assets through judicial proceedings. If, in the meantime, the Centre of the Maltese Language would have started functioning, then it would be the Accountant General who would have the right to recover all abusive and illegal disbursements made directly from the minister’s salary/assets in relation to the operation of the Centre, including the salary and perks paid to the Centre’s Executive Head. And if the Accountant General fails to perform his duties, the Auditor General will hold him to account. But all this could be avoided if the minister had one iota of political acumen.

The minister’s chances of winning this case are similar to that of a drowning man exasperatedly attempting to clutch at a straw with an irremediable possibility of success. It is better for the minister to admit defeat, revoke the illegal notice and in full compliance with the rule of law start the consultation process mandated by law once he does not have the decency of accepting political responsibility and resign on this embarrassing political irresponsibly crude abuse of power. After all, honesty is the best policy that justifies U-turns that are a characteristic trait of the Labour government when used for a good purpose. If Robert Abela grew a conscience in the Jean Paul Sofia board of inquiry after several months in denial, if the whole cabinet grew a temporary conscience till the next election when they withdraw their abortion decriminalization bill that would have permitted abortion up to one second before delivery, why should not Owen Bonnici follow his boss’s and cabinet’s good albeit belated examples? Hopefully Robert’s, Cabinet’s and Owen’s expiation will serve as a lesson on how not to govern for the present and future cabinets.

One final point. The minister advised the Council to seek advice from the minister’s own advocate – the State Advocate – or from the justice minister’s own lawyer. Will not these both entertain a conflict of interest? How can the State Advocate defend the minister in court proceedings instituted by the Council against the minister and then advice the Council on those proceedings? Will there not also be a breach of the Code of Ethics of Advocates on the part of the State Advocate? But on this point of conflict of interest by the State Advocate, the discussion will have to be reserved for another piece.

 

Kevin Aquilina is Professor of Law, at the Faculty of Laws, University of Malta