The exercise of power

No one knows when the cases instituted against politicians, civil servants and consultants involved in the Vitals/Steward scandal will come to a definitive end. I reckon it will take many years as justice in Malta is a very slow process. I think Edward Scicluna is wrong to hope that his case will be definitely over - appeals and all - before his term of Governor of the Central Bank elapses, but that is just one detail of the story.

The decision to persecute those who allegedly broke the law has opened the proverbial can of worms. Whatever the conclusion of these court proceedings will be, just the fact that this judicial process exists will change for ever the way Maltese politicians and civil servants behave and interact in future.

Incidentally when former labour minister Lorry Sant was accused of corruption the magistrate declared the case was time barred and dismissed it, as he was legally obliged to do. Now only a statue in Paola reminds us of the deceased Labour politician.

Today, however, the time barring possibility no longer exists because a few months after being appointed prime minister, Joseph Muscat had changed the law to remove such time-barring in cases of corruption. At the time, Muscat pretended to have a clean pair of hands and changed the law to sustain this perception.

Moreover, the Panama Papers revelations were something deemed practically impossible. But, as sod’s law says: if it can happen, it does. Wonders never cease in Malta’s poltical history.

The relationship between the Cabinet and the civil service was originally somehow built on the British model. The British model evolved since Malta became independent in 1964, but the situation in Malta did not.

In the Borg Olivier years after Independence, the top civil servants wielded power. Borg Olivier wielded power almost only when a political issue was involved, but he left the general running of the state machinery to the civil service. This is not to say that his ministers did not have a way of persuading the civil service to follow their ways, but the civil service could still put the brakes to stop any minister who tried to change drastically their old trusted ways.

Mintoff changed all that. He left the system theoretically as it was on paper, but made a mess of the relationship between ministers and the civil service. He trusted his so-called kitchen cabinet - which included the Attorney General Edgar Mizzi - and no civil servant dared give him negative advice on whatever he had decided. Mizzi was useful in concocting the legal framework supporting Mintoff’s decisions. He excelled at that job.

When the PN won the 1987 general election, Fenech Adami found an unmotivated and dishevelled civil service. He took pains to reform it but the effect of the Mintoff years could never be blotted out. The clout that the civil service lost under Mintoff was never reinstated, even though the Fenech Adami administration always let the civil service do their job mostly without undue pressure.

In the light of what had happened in Mintoff’s days, the law was changed such that the Permanent Secretaries of Ministers and Directors of Departments were given the right to ask the minister for instructions in writing whenever they felt they disagreed with some ministerial decision and its follow-up. Good idea but impossible in practice. As far as I know, no civil servant ever used that law and ministers’ wishes were respected in any case. The problem with that legislation was that in the event of the minister being asked to give some particlular directive in writing, the relationship between the politician and the civil servant deteriorated and, moreover, the minister could always find ways of assigning the official to different pastures.

The details of the Mintoff mess were cleared but the situation was never ideal.

In truth, Malta needs a better law regulating the relationship between the Cabinet and the civil service. But this remains a dream as, in practice, everybody prefers the current wishy-washy relationship which gives a lot of elbow room to both sides.

In the Vitals/Steward case, accusations have been meted out against both politicians and civil servants. Up to now, no one understands where the responsibility of the civl servants ends and that of Cabinet ministers begins. They overlap in a hotch-potch of incredible proportions and complications.

The nature of this relationship should be regulated by law as currently, it is not clear.

Shall I dare hope that this kind of legislation is enacted in future?

Perhaps something positive will result as a reaction to the Vitals/Steward scandal.

Pushback: Finnish style

In autumn 2023, Finland saw an influx of migrants trying to cross from Russia into the country. They came from distant countries, such as Somalia, Iraq, Yemen and Syria, and were encouraged by the Russian authorities to make the trip. This was perceived to be a concentrated effort by the Kremlin to sow chaos in Finland and led to Finland closing all crossing points.

Fearing a repeat of that phenomenon, in May, the Finnish government enacted a new law that, in exceptional situations, will empower border guards to stop asylum seekers from crossing into Finnish territory and refuse the registration of their applications for international protection.

In fact, since the closure of all crossing points, irregular arrivals have plunged to zero, leading to questions on whether the far-reaching law was needed in the first place.

The bill prompted legal and migration experts as well as humanitarian organisations to consider it a blatant breach of European and international norms. Many - including the Finnish Refugee Council - have deplored the fact that, for all intents and purposes, Finland has legalised migrant pushback.

The Geneva Convention, the Convention Against Torture and the EU's Charter of Fundamental Rights are considered the main shield against the practice of pushback, but the new Finnish law hardly registered on their radar.

The European Commission, which is obliged to ensure that national legislation respects EU norms, has - up to now - remained silent in the debate, while investigating the Finnish move as well as the steps taken by Hungary to close its borders to migrants.

This brings me to ask: What if Spain, Italy, Malta and Greece decide to enact a similar law, making pushbacks legal? What will the EU Commission say?