Positions of trust: a constitutional quagmire

The Constitution does not recognise non-public service positions of trust. It instead provides for the establishment of the public service, that is, ‘the service of the Government of Malta in a civil capacity’. 

The words ‘in a civil capacity’ have to be contradistinguished from service ‘in a military capacity’. Military service is therefore excluded from the provisions of the Constitution. 

Public service includes ‘service in the office of judge of the Superior Courts, service in the office of Auditor General and Deputy Attorney General, service in the office of magistrate of the Inferior Courts and service in the office of a member of the Malta Police Force’. Civil servants fall within the wider category of ‘public officers’. The offices of principal representatives abroad (such as Ambassadors and High Commissioners) are public offices. 

Cabinet Members (who do not form part of the public service) are assisted in the performance of their duties by Permanent Secretaries, heads of departments of government and other public officers. 

Permanent Secretaries and heads of departments of government have to be chosen from amongst public officers and, in the case of heads, from amongst ‘senior public officers’. 

Permanent Secretaries are appointed by ‘the President acting in accordance with the advice of the Prime Minister after the Prime Minister has consulted with the Public Service Commission’. Heads of departments of government are appointed by the Prime Minister after consultation with the Public Service Commission’. 

Unless the Constitution otherwise prescribes, public officers are appointed in terms of the Constitution by the Prime Minister acting on the recommendation of the Public Service Commission. 

The Constitution allows appointments to public office to be made only according to its provisions. Civil service appointments are made in terms of section 110(1) of the Constitution. There is no other procedure recognised by the Constitution which allows employment with the government other than in terms of the provisions of the Constitution. 

The Constitution distinguishes: (a) between civil servant public officers and non-civil servant public officers; and (b) between a ‘public office’ and ‘a body’ referred to in section 110(6). Employment with such a body is not tantamount to employment in the civil service or in a public office. On the contrary, it constitutes employment outside the public service. In the case of such body, the Public Service Commission has no role to play; in the case of non-civil service public offices, the Public Service Commission might in certain cases be consulted or provide its recommendation but can never proffer binding advice. In the words of the Constitution:

‘Recruitment for employment with any body established by the Constitution or by or under any other law, or with any partnership or other body in which the Government of Malta, or any such body as aforesaid, have a controlling interest or over which they have effective control, shall, unless such recruitment is made after a public examination duly advertised, be made through an employment service.’

The Constitution further empowers the Prime Minister, ‘in respect of recruitment to public offices from outside the public service’, to be made, if not by the public service, ‘only through an employment service provided out of public funds which ensures that no distinction, exclusion or preference is made or given in favour or against any person by reason of his political opinion and which provides opportunity for employment solely in the best interests of the public service and of the nation generally’.

To recap. The Constitution distinguishes between two types of state employees: (a) public officers who can be civil service public officers or non-civil service public officers; and non-public office employees employed by the bodies referred to in section 110(6).

Positions of trust are regulated by section 15 of the Employment and Training Services Act. It is the Employment and Training Corporation (ETC) which is designated as ‘the employment service provided out of public funds’ as aforesaid. In the case of positions of trust, the ETC can recruit persons to fill positions of trust ‘for a definite time’. Failure by the ETC to make the necessary recruitment implies that ‘the department or other employer may recruit the employees required in virtue of such other arrangements as the Corporation may authorise in any case or class of cases’. Positions of trust have been resorted to both by Nationalist and Labour governments even if unconstitutional.

The Public Service Commission (PSC) has commented upon, in its 2011, 2012 and 2013 annual reports, recourse to positions of trust by the public service. In its 2011 report, it wrote that:

As a matter of longstanding practice, staff in ministerial secretariats are recruited directly on the basis of trust, without resort to calls for applications. This is justifiable since Ministers need to have staff in their secretariats in whom they can repose their full personal confidence. However, the regularisation exercise highlighted a number of instances in which appointments on trust were used to fill administrative, managerial or technical positions. This gave rise to a concern on the Commission’s part that appointments on trust could be used to avoid issuing calls for applications for vacancies that should be filled on the basis of merit.

Moreover, the Constitution makes no provision for the engagement of staff in positions of trust, so the legality of this practice could be questionable even where ministerial secretariats are concerned.

The Commission came to the conclusion that mechanisms need to be put in place to ensure that appointments on trust are legal, and are not used to bypass the merit principle.

The PSC reported in its 2012 Annual Report that the matter remained resolved, except in one case relating to the filling of posts of Judicial Assistants. The Commission commented that:

Staff engaged on trust are normally employed on the basis of definite contracts, with no entitlement to permanent employment. This mitigates the irregularity of such appointments in constitutional terms, since those engaged are not permanent additions to the Government payroll. However, the case of Judicial Assistants showed that positions of trust could be transformed into Public Service posts at the stroke of a pen, without reference to the Commission. The irregularity of appointments on trust would be compounded if, in this manner, the staff in question were to be given an entitlement to permanent employment.

The situation seems to have deteriorated as in its published Annual Report for the year 2013, the PSC states, with regard to the grant of indefinite status ‘to regularise the positions of persons who had been employed in an irregular manner or on the basis of trust’ that ‘the administration had arrogated to itself a power that belonged to an independent external authority, namely the Commission. Thus the administration’s decision to grant indefinite status has been ultra vires and invalid in the first place’.

Notwithstanding these strong pronouncements by the Commission, it has failed repeatedly over the years to take the bull by the horns to ensure that those same provisions of the Constitution, which the Commission itself is called upon to enforce, are strictly and unreservedly complied with.

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta