Author: Jacques René Zammit

Categories
Politics

The Auditor General’s Report and KSU

On the 3rd July 2012, the Auditor General presented the Report ‘University of Malta – Concession of parts of University House to the Kunsill Studenti Universitarji’ to the Speaker of the House. The report had been commissioned by the Parliamentary Public Accounts Committee. You can access the report here. Here is a summary of the report as may be found on the website of the National Audit Office:

The Auditor General presented to Hon. Speaker the Report ‘University of Malta – Concession of parts of University House to the Kunsill Studenti Universitarji’ which was commissioned by the Parliamentary Public Accounts Committee. The investigation addressed the concern from two separate, but inter-related, perspectives:

a) a legal/conceptual deliberation of the concession and the eventual use made of the conceded property; and

b) an analysis dealing with the leasing and related operations as run by the Kunsill Studenti Universitarji (KSU), coupled with the University of Malta’s (UoM) involvement in this regard.

The Report concludes that as KSU was never granted any title over the conceded property, it was not in a position to lease out parts of same. Shortcomings on the part of UoM, especially the failure to regularise the position over years, are also discussed.

The Investigation also revealed deficiencies in the manner with which KSU manages the leasing function, with processes deployed not being best practice and not being conducive to accountability and transparency. UoM’s reluctance to deploy a control and monitoring function to ensure its property, as conceded to KSU, is being made good use of, is also reported upon.

National Audit Office (NAO) recommends that steps be immediately taken to ensure the status quo does not prevail, and that a regularisation process be embarked upon. Apart from the definition of a legal framework, an administrative supporting framework and a set of documented procedures should be designed and deployed.

On a wider scale, the Report voices NAO’s concern that the Disposal of Government Land Act does not preclude autonomous (public) bodies from disposing of immovable assets without the monitoring of competent authorities.

I read the report and was immediately inspired to prepare a counter-report that would consist of my observations and comments on the Auditor General’s operation and finding. The main inspiration for my writing the report lies in the fact that I see this kind of review as a misuse of the institutional structures of our nation. This misuse is symptomatic of a deeper malaise that has come about with the abuse of the higher institutions of our country that is in turn based on a misconstruction of such principles as are intrinsic to a system functioning on the basis of the rule of law.

J’accuse has already documented why the recent happenings in Parliament proved to the public that the principles and traditions of our hybrid legal system were being flaunted and sacrificed for political expediency. The request for the investigation into the matters existent between KSU and the University by Owen Bonnici was misguided because it took the matters of an autonomous public body and made them the business of government. This request came from the same corner of the progressives who were scandalised when somebody went running to the police for the latter to censor publications on campus. They are also the same corner of progressives who periodically call upon “the powers” to censor or even shut up bloggers and opinion writers.

This is the kind of Malta that believes that just because you have “freedom of expression” then that means that when exercising that expression you must be automatically right. It is the Malta of rash proposals to restructure a judicial system and attempt to sound like some modern day Hammurabi when the very same “reformers” seem unable to decipher the basic tenets of constitutional politics.

But back to Owen’s request for investigation. The Auditor General had a job to do once the Public Accounts Committee requested him to do it. He gave them a report that we found to be scantily based on (a) the reply to an earlier parliamentary question and (b) the legal advice of a party that had a direct interest in the outcome of the investigation. In the end J’accuse finds that the whole investigation is ultra vires and goes beyond any of the powers that the National Audit Office has.

Incidentally this is not a defence of the practices of the KSU executive whenever they are procuring services for Students’ house. I am fully aware that they have to operate in a minefield of legal uncertainty and that they also have to watch their back from a University Council that might be hungry to reclaim its rights on Dar l-iStudent. Which is why the executive is duty bound to be more transparent in its economic operation and this transparency must always show a student union that is working for the greater good of the student body.

The purpose of the J’accuse report is not only to point out the anomalies of the Auditor General’s findings but also an attempt to highlight the dangers of confusing the roles of our institutions of review. I hope that that purpose will be achieved.

Click here to read J’accuse’s report in reply to the Auditor General’s Investigation.

Categories
Politics

Out in the streets

The shtf.tv series is back with an akkuzablob inspired by recent events in Malta.

Categories
Euroland Politics

The vote abroad

The Bill to amend the General Elections Act gets its first reading on Monday. Among the most “innovative” of measures is the introduction of a “rolling register” allowing persons who turn 18 on the eve of an election to vote. What is conspicuous in its absence is any improvement with regard to the status of voters based abroad. This, my friends, is 2012. Malta is a member of the European Union and a huge proportion of its nationals have opted to make use of the rights of workers to free movement. A large number of Maltese are now gainfully employed as fonctionnaires within the European institutions.

I will not even entertain for one second any objection that goes in the way of “you cannot vote for Malta’s government if you do not live there”. It is rubbish, xenophobic and populist in so many ways. Take French voters for example. In the last elections France had a new constituency for Northern Europe. French expats were entitled to vote in places such as London. The Number of registered voters in the UK were around 75,000 with approximately 23,000 turning out for an evenly split vote between Sarkozy and Hollande (about 11,900 vs 11,500 votes). The United Kingdom allows its citizens to register for voting abroad with a sort of 15-year expiry date (to register to vote as an overseas voter you have to have registered to vote in the previous 15 years).

Our neighbours Italy also famously have an expat constituency- remember Cassola? Now I am prepared to accept the argument (grudgingly) that Malta is not yet ready to dedicate a seat in parliament to its expat constituency but it is downright impractical to persist with the current situation of rent-a-planeload voting instead of having the rational solution of voting in embassies.

What counts for Mater Dei and old people’s homes with more than 30 residents should surely count for BeNeLux, London and maybe Paris. No?

Categories
Constitutional Development

Ordinary Salaries & Extraordinary People

Labour’s latest rant about Richard Cachia Caruana and his salarial status within the government structures has provided the world with proof, if any was needed, that the PL still sits uncomfortably with its usurpation of parliamentary power for a very private lynching affair. Following a statement by the Labour communications office we read the following comment by the unnecessarily anonymous “Labour Party Spokesman” (best not be able to identify who is behind the latest excuse for politicking):

“Can the Prime Minister explain which civil servant takes a terminal benefit and transitional facility,” a Labour party spokesperson told MaltaToday. “This is proof that Cachia Caruana was not just any civil servant but is the equivalent of a minister. Labour is right when saying Cachia Caruana is accountable to the scrutiny of parliament, because he is not a civil servant like the others.”

The telling bit is the last sentence. Labour (or in any case its anonymous spokesperson) is painfully trying to square the circle of “accountability of civil servants”. The motion presented in parliament by Luciano Busuttil et al flew in the face of all parliamentary convention and practice. Labour would love to seem to be partisans of the doctrine of parliamentary sovereignty and have gone to great lengths to sing to the tune of “strengthening democracy’s greatest institution”. When push comes to shove though, political expediency easily trumps parliamentary convention.

On the law

Our constitutional system is a hybrid one. We do not have the “historic” unwritten constitution in Diceyan terms and questions of supremacy are (currently) controversially divided between the written constitution and parliament. What we definitely have inherited from UK jurisprudence is the system of parliamentary conventions. In Dicey’s words:

“(A) set of rules (that) consists of conventions, understandings, habits or practices which, though they may regulate the conduct of… officials, are not in reality laws at all since they are not enforced by the courts”. (The Law of the Constitution)

Among those conventions is that of “ministerial responsibility” that can be both “individual” or “collective”. The modern form of ministerial responsibility is based on two ports – (1) a minister’s political or administrative competence, (2) a minister’s personal morality. The original application of the competence rule held ministers answerable to Parliament for every action undertaken by their department’s civil servants. Ministers took credit for civil servants’ achievements and were expected to resign for any grave errors committed by their staff. The corollary to this is that individual civil servants would not face parliamentary scrutiny or public criticism for their own failures.

In time the expanding nature of government administration led to an adaptation of this conventional rule. The effect of this adaptation was not however that of bringing civil servants within the ambit of parliamentary scrutiny but rather the additional requirement of proof: that a Minister was aware of the or personally involved in a particular decision before being forced to resign.

On the person

In the Cachia Caruana case (can we call it parliamentary impeachment or would that risk opening another can of legal worms?) we clearly have a bypass of the convention of Ministerial responsibility. Parliament dragged a civil servant (ordinary or extraordinary is irrelevant) before it and proceeded to vote. Even if we set aside the fact that the actual accusation was never proved (the Wikileaks accusation did not, if you pardon the pun, hold water) and that the vote was carried merely in Sicilian vendetta style we are still left with an even more important consideration. The Labour party motion blatantly ignored all forms of parliamentary convention for the sake of political expediency.

We now have the baying hounds drawing attention to Richard Cachia Caruana’s remuneration. Forget the return of Maltese relativism for a moment. The issue is much more serious constitutionally speaking. The current trend among the Labour party is to highlight their dedication to the real constitution – the real parliament they say, not the multi-million building in Valletta. They have shot tirade upon tirade at the party in government for supposedly diminishing the role of parliament. When it came to turning the parliament into a vehicle of political expedience the very same Labour party had no qualms but to ride roughshod over any semblance of parliamentary convention. It did not even bother to pretend.

The afterthought has led to a sort of backtracking. It is now crucial for Labour to try to prove that RCC was a kind of Minister – not a civil servant. It is crucial because that way they think that they would save their face. What they are actually doing is providing further proof that their knee-jerk activity acting as a second-fiddle to Franco and JPO.

Then again what do you expect from a party that seems to be determined to introduce the very progressive system of government by facebook?

 

Categories
Constitutional Development

The Evils of a Party System

Albert Venn Dicey Vinerian Professor of English Law at the University of Oxford in the 1880s authored one of the classics on the British constitutional system entitled “Introduction to the Study of the Law of the Constitution”. Dicey’s groundwork on English constitutional history and principles may be described as legendary. In this post I would like to summarise/list part of an unpublished lecture by Dicey that was prepared in July 1898 – in the hope of provoking a discussion on the merits and demerits of the UK party system as inherited by us in Malta.

The lecture was called “Memorandum on Party Government” and he deals with the pros and cons of the party political system as developed within the British constitutional structure.

In section C of this lecture he outlines the “Inherent Demerits of Party System” as follows:

1. It makes impossible consideration of measures on merits.

2. An Opposition which cannot carry out its own policy maims & renders abortive the policy of the Government.

3. The Party system involves a waste of capacity.

4. The Party system leads to an exaggeration of the points on which the whole of one party, e.g. the Tories, are supposed to agree & to be opposed to the whole of their opponents, e.g. the Whigs.

“(…) it is still true that the party system intensifies the tendency of politicians & their followers to look upon their own side as the party of the good, & upon the opposite side as the faction of bad men, whence, among other evils, results the sort of political hypocrisy which leads men of sense & merit to overlook or palliate the decline in moral principle of a party which they have at one time held, perhaps rightly, to represent public virtue.

The patent evils, in short, of the Party system, even at its best, are that it presents men from considering measure on their own merits, that it produces the kind of vicious compromise by which an opposition maims a policy which it cannot resist, that it involves a waste of political capacity, that it exaggerates the differences which divide one party from another & promotes the idea which is often false, & at best only partially true, that one party in the State has a monopoly of public virtue.”

In the next section (D) Dicey expounds “The Conditions Necessary for the Beneficial Action of the Party System” and he divides them into four broad conditions, namely:

1. All parties in the State must be loyal to the Constitution.

2. The distinction between the two parties in the State must depend upon real differences of principle.

3. Parties must not be kept together mainly by personal interest.

4. There must if possible exist only two important parties.

5. The nation must take a real interest in Politics.

And what happens when these conditions fail? Well here is Dicey’s answer:

“(…) all these evils may be summed up under one head whenever they exist they mean that parties are degenerating into factions, that is to say that they have become or are becoming, bodies of men not bound together by community of principles but either by self interest or by the feelings of partisanship“.

Finally Dicey also suggests two obvious ways of mitigating the negative effects of the party system:

1. The judicial & administrative bodies of the country should be kept as far as possible from the sphere of the Party.

2. Large questions of general policy should whenever possible be so determined that they may be placed outside the realm of the party.

Categories
Politics

Toroq fil-baħar

Il-fekruna għażlet il-Ġnejna biex tħalli erba’ bajdiet fir-ramel qabel lebbtet lejn il-baħar frisk u nadif ta’ l-ewwel jiem tas-sajf. Ma naħsibx li jeżistu fuljetti informattivi li jitqassmu fost il-fawna Mediterranja li jgħarrfu lil klijenti prospettivi dwar l-aħjar post fejn titfa’ bajdtek u tħalli ‘l uliedek jittantaw xortihom. Is-sinjura Fekruna ma tistax tistħajjilha f’xi kont ta’ Lewis Carroll tikkonsulta l-brochures splendidi tal-Malta Tourist Association iħeġġu l-koppji fkieren żgħar jiġu bi ħġarrhom jrabbu familja (jew mill-inqas iħalluha tfaqqas) ġewwa l-gżira ta’Pawlu.

Għażlet il-gżira ta’ Franco u ta’ Richard minn jedda il-fekruna. Forsi kien att ta’ disperazzjoni – kif iktar tispjega fatt li kien ilu ma’ jseħħ mis-sittinijiet? Il-fkieren kienu donnhom ddikkjaraw bojkott tal-gżira meta raw n-nies jindifnu fil-miżbla. “Le xbin tlaqna lejn l-Ellespontu u l-gżejjer tagħha hawn m’hawnx ħlief oqbra imbajda u qniepen.” Għadda ż-żmien u l-fekruna donnha tittanta xortiha. Ilna minn żmien Rio ’92 ma nduqu soppa tal-fkieren. Issa illegali. Għaldaqshekk kolloxsew. M’hemmx ċans li t-tfal tagħha jispiċċaw f’xi bouillabaisse post-modern f’xi ristorant mibni fuq il-foreshore kifsuppost.

Kienet taf forsi bil-programmi estensivi ta’ Joseph? Saret taf li ħadd ma hu se jitħalla joqgħod lura f’Malta progressiva? Kienux is-sireni progressivi li saħħruha bil-kant ta’ Tagħlim, Taħriġ u Xogħol? Ifhem, l-Ellespontu kien ilu ma jbandal hekk minn żmien Xerxes. Għadhom sa’ llum jiddu f-widnejn il-fkieren il-ħoss tal-frosta inkazzata u rrabbjata tfaqqa’ fuq wiċċ il-baħar. Illum hemm problemi oħra. Flus ma hemmx. Futur ikreh. Aħjar immorru Malta fejn minkejja kull sforz tal-iżolani li jitfgħu il-knaten fuq saqajhom l-affarijiet jidhru mexjin sew.

Imma żgur sinjura fekruna? Tifhimnix ħażin. Wara kollox ħaqqek grazzi talli għażilt gżiritna biex tiżra t-tama u l-ħajja. Imma din mhux gżira ta’ ward u żahar. Ilna nitfgħu knaten fuq saqajna. Fil-parlament mhux talli ma kibrux fjuri imma issa intlejna kakti u tingiż. Mhux dik l-agħar sinjura, l-agħar x’ħin tara l-kilba għall-poter u d-dominju tal-assurd. L-assurd iqarrabna wisq mad-dinja ta’ Carroll u Vargas Llosa. Ħarġu l-iskieken, sinnewhom sew u d-demm iċċarċar fuq l-artal ta’ l-ugwaljanza.

Għax f’din il-gżira sinjura fekruna l-ilsna tal-bejjiegħa tal-ħolm jidilkuk bil-għasel tal-wegħda ta’ prosperita. Jgħannu l-għanja tal-ħelsien mill-jasar immaġinarju li għaġġnu f’moħħom biex bħal speċi jiġġustifikaw il-qagħda tagħom. Imma mill-kliem għall-fatti hemm baħar jaqsam. U x’baħar dak. Il-progress f’dan il-pajjiż ma jfissirx li tqiegħed lil kullħadd f’kundizzjoni li jtejjeb ruħu. Ma jfissirx meritokrazija. Il-progress għandu l-minġel f’idejħ u jekk int tajjeb iżżejjed, jekk b’ħilitek inqtajt mill-folla issibu jistennik – u b’daqqa waħda jaqtagħlek saqajk. Hekk… issa ġejt daqs ħaddieħor. U hekk kullħadd l-istess. Kullħadd kuntent. Progress achieved.

“Prosperity or egalitarianism — you have to choose. I favor freedom — you never achieve real equality anyway: you simply sacrifice prosperity for an illusion.” – Mario Vargas Llosa

Żgur sinjura fekruna li se tħalli ‘l uliedek hawn fostna? Iva ħallejna gwardjan magħhom lejl u nhar biex żgur ix-xorti xxaqleb favurihom. Bil-bouncer 24/7 fuq ramlet artna. Imma barra minn fuqhom li jikbru u jitgħallmu u jsiru intelliġenti. Barra minn fuqhom li b’ħilithom isibu xogħol imħallas tajjeb. Għax hemm isibuħ il-progress jistenna bil-minġel ileqq f’idu. Minġel ikreh li jixxejjer bid-dagħdiha tal-għira u l-inkapaċita tal-injurant. Jekk hemm bżonn nipprostitwixxu parlament sabiex nitkażaw jekk taqlax iktar mill-President . Hemm aħna sinjura fekruna… imbasta ħadnilek ħsiebhom sakemm nibtu… imma jżabbu jmorru aħjar minna.

Wara kollox x’iriduhom dal-flejjes kollha? Bil-flus tagħmel biss toroq fil-baħar, u x’iżżobb se nagħmlu bihom dat-toroq eh?

Aqdef ja bagħla aqdef.