One of the salient recommendations of the Daphne Caruana Galizia inquiry's report was that "abuse of office" be included in the criminal code as a crime.
This ensures that public officials are appropriately held to account for misconduct committed in connection with their official duties.
Misconduct in public office is not defined in any statute. That notwithstanding, it is inherently a serious criminal offence in that it requires that a public officer acting as such wilfully neglects to perform his or her duty and/or wilfully misconducts him- or herself to such a degree as to amount to an abuse of the public's trust in the officeholder without reasonable excuse or justification.
The recommendation went further, suggesting that one could legislate for two specific criminal offences, one being that of corruption in public office, namely where a public office holder knowingly uses or fails to use the public position or power to achieve a benefit for oneself or others or to the detriment of someone else, where that behaviour would be considered seriously improper by a "reasonable person," unless it can be demonstrated that such conduct was, in all the circumstances, in the public interest.
The other is that of breach of duty in public office, namely where a public office holder is subject to and aware of a duty that arises only by virtue of the functions of the public office, is in breach of that duty, and in doing so is reckless as to its consequences.
At the same time, one should ensure that the fault and seriousness threshold for imposition of criminal liability is set at an appropriate level while being accompanied by the promotion of fairness and consistency in charging and prosecution practice.
This requirement ensures that public officeholders are not subject to prosecution in politically motivated or vexatious circumstances and that cases are only pursued where the appropriate thresholds are met.
Yet, Prime Minister Robert Abela, by committing himself to protecting civil service and government entity workers from being taken to court in their personal capacity, is taking the already rampant impunity to the next level.
The €400 million saga
While, on the domestic front, the PN and PL have been bickering over who should or can sue for the recovery of funds handed to Vitals and Steward Global Healthcare as part of the state hospitals concession, abroad, the picture emerging is certainly not a rosy one for any chances of success in getting back those €400 million fraudulently syphoned off Malta's public finances garnered from the ordinary citizen's tax payments.
Much precious time was lost on the domestic front until we had a landmark court judgment ruling that the state advocate can act independently of any government direction to recover funds regarding the fraudulent hospitals concession.
Still, the state advocate has not yet sprung into action. He could have become Malta's Gladiator III.
Till then, the government and the opposition had remained locked at loggerheads, with the official government line being that international arbitration proceedings are already underway.
In the meantime, on May 6, 2024, Steward Health Care System LLC and 166 of its affiliated debtors (collectively, the "Debtors") each filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas. The cases are pending before the Honourable Christopher M. Lopez.
We still do not have the full picture of subsequent developments. The Bankruptcy Court had last set the deadline for filing proofs of claim for Friday, December 20, 2024.
To compound matters, the ongoing arbitration proceedings between Steward Healthcare and the Government of Malta remain shrouded in secrecy. Despite the government's claim that it had initiated these arbitration proceedings, it transpires that the emergency arbitration was brought to the International Chamber of Commerce by Steward Healthcare because of the escalation of the termination dispute.
With this current state of things in this ongoing saga, there can be a legitimate and reasonable fear that the contended €400 million will end up being written off as a bad debt, as there is hardly any basis or promise of ever being wholly collected.
Should we ever arrive at such an unsatisfactory situation, will any high-ranking government officials and ministers shoulder political responsibility and, more importantly, the respective legal and financial liabilities?
A system of government for Gozo
Nationalist Gozitan MP Chris Said has come up with the idea of devolving the powers of the Gozo ministry to an elected council enjoying executive powers and enshrining Gozo's regionality in our Constitution.
Reacting thereto, the Labour Party said that Said's proposal would result in confusion and huge bureaucracy to the detriment of Gozo and Gozitans. This notwithstanding, we had Minister Anton Refalo stating Gozo should have more autonomy and be given a special regional status in the Constitution.
As things stand at the moment, following the Regional Councils set up in 2011, Region Gozo only has the power to make bye-laws for the purpose of carrying out its functions and is responsible for performing functions that are established by the minister under regulations made following consultation with the Local Councils' Association.
In substance, Chris Said's proposals resemble very closely that part of the Italian Constitution whereby regionalities are enshrined and granted a special legal regime of autonomy. They are empowered to protect the interests of their respective communities.
Be that as it may, the Italian experience has presented numerous uncertainties and challenges that are not expressly addressed by the constitutional law but are indirectly affected by the constitutional specification of the State's exclusive competence over sensitive national aspects and the State and the regions' concurrent jurisdiction over those same aspects.
Still, once two prominent Gozitan politicians from both sides of the House seem to be in agreement, due consideration must be given to these proposals in an objective and non-partisan manner as they have the potential to radically alter Region Gozo's current legal status.
Dr. Mark Said is a lawyer.