Positions of mistrust

As the Foundation for Tomorrow’s Schools saga has indicated, the current practice of appointing ‘persons of trust’ to sensitive public service positions is highly problematic. In that case, Edward Caruana – a former canvasser and personal driver of Education Minister Evarist Bartolo – was appointed head of procurement at FTS; already a false start, as such positions should be answerable to the permanent secretary, not directly to the minister.

Matters were greatly compounded when it was discovered that the permanent secretary, Joe Caruana, was Edward Caruana’s brother. This connection only came to public notice because of a complaint about alleged irregularities in an FTS public procurement process.

This is a recipe for disaster. The FTS needed the permanent secretary’s approval for direct orders and other potentially controversial decisions. It is clearly unwise to permit such a clear conflict of interest in such a sensitive matter. Moreover, the fact that the procurement officer was appointed on a ‘person of trust’ basis arguably made it difficult for the minister to take decisive action when notified. But had Caruana been an ordinary civil servant, and not an appointee, the decision would have fallen to the permanent secretary... i.e., his own brother.

This is why there should be a healthy arms-length distance between the different offices, and a clearer, more transparent system of checks and balances in place.

Moving away from the FTS issue itself: the very concept of ‘persons of trust’ is in itself legally questionable. Prof. Kevin Aquilina, dean of the Faculty of Law, recently described the situation as ‘a constitutional quagmire’. 

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 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’.

Prof. Aquilina notes 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, [a 2012 Public Service Commission] 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.”

To make matters worse, the PSC’s annual report for 2013 noted that: “to regularise the positions of persons who had been employed in an irregular manner or on the basis of trust [...] 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”.

In other words, the government’s response to a PSC complaint about the legality of ‘persons of trust’, was to remove the issue from the PSC’s remit.

Needless to say, this is the very opposite of a solution to the problem. What is needed are stronger rules and strict limitations on such appointments. The current arrangement only serves as a conduit for canvassers and street-leaders to be given plum posts. These are people whose loyalties are not to the State, but only to the minister.

It is fair to argue that chairpersons and CEOs may be appointed by the political class since they require persons of trust who are also competent and capable. But such appointments should always be made answerable to a parliamentary committee of MPs, who should carry out grillings of the candidates and regularly scrutinise their work.

In an atmosphere where public trust is constantly eroding, only full transparency can deliver a better and more honest service.