We hear ad nauseam how ministers will be held personally responsible for their unscrupulous spending spree of our tax money.
We’ve already had the case of Mater Dei: where Skanska was engaged to build a hospital – its first ever – and was so inexperienced in the matter that it never crossed their minds that a hospital also needs a medical school and a mortuary.
Now we have the tender for the extension of the Delimara power station, entrusted to Scandinavian firm BWSC, and once again it will be the first project to utilise the chosen technology.
So who will be responsible if things go wrong? How and when can a minister be held personally responsible in cases such as these?
By the looks of things, it seems our ministers can never be held personally responsible for anything at all, as they continue to ride roughshod over us, as they did by signing the contract with BWSC – in the process, accepting a €300 million penalty should the government renege on its commitment, without awaiting the conclusions of the Auditor General.
In other words, there is now only one place for the Auditor’s report: the wastepaper basket.
Individual ministerial responsibility means that a Cabinet minister bears the ultimate responsibility for actions of his or her ministry or department. It is not the same as collective ministerial responsibility, which states that members of the Cabinet must publicly approve of its collective decisions, or resign.
In the case of the power station tender, the Prime Minister told us that it was a cabinet decision to sign the contract, notwithstanding the fact that the Auditor’s report on the tender was not complete.
The philosopher Alexander Brown, in his book ‘Personal Responsibility’, shows that the subject is more slippery than politicians imagine. How should society determine whether someone’s circumstances mean that they are deserving of its support rather than its condemnation? The philosophical literature, as Brown shows, generates a ‘bewildering array of criteria’ for making such a basic judgment.
Fairness stands at some remove from social utility, and more remote still are concerns about the self-respect of the individual. These incommensurables complicate the discussion of responsibility, though not, of course, among practising politicians.
Furthermore, Brown notes that philosophers distinguish carefully between ‘brute luck’ (over which nobody has any control) and the misfortunes (so-called) which arise, at least in part, through risk-taking or poor decision-making.
However, in practice it is not always easy to draw this particular line.
When there is ministerial responsibility, the accountable Minister is expected to take the blame and ultimately resign. This means that if waste, corruption or any other misdemeanour is found to have occurred within a ministry, the minister is responsible even if the minister had no knowledge of these actions.
A minister is ultimately responsible for all actions by his or her ministry, even without knowledge of an infraction by subordinates. If misdeeds are found to have occurred within a ministry, the minister is expected to resign. It is also possible for a minister to face criminal charges for malfeasance under his watch.
How this works in practice is very confusing. The people are confused about the responsibility they expect from their elected representatives.
Responsibility has a distinctive, if somewhat imprecise, set of meanings in Maltese political life, and is not as simple as the media reporting of a government scandal, or a particular minister’s expenses.
We have adopted the British constitutional theory: that of the notion of ministerial responsibility, which means that it is the ministers, not civil servants, who answer to Parliament for the deeds and misdeeds of the State.
Responsibility is a compound term within which might be detected shades of answerability, accountability and culpability. In practice, ministers rarely take the blame for the mistakes of civil servants. Ministerial resignations for failures of departmental policy, such as the resignation of the former Minister of Justice over the advice he was given to recommend a presidential pardon to a drug trafficker do not happen any more.
Nothing is perceived to be wrong if a minister does not act according to the code of ethics for Ministers in Malta; if reports consistently say how prison is inundated with drugs, it is not the responsibility of the Minister; if there is a conflict of interest in the power station tender, it is not the responsibility of the Minister; if that sub-contractor declared that he was doing the works for the Minister in his villa for alleged services to the contractor, there is nothing wrong with that. Just as there was no ministerial responsibility in the VAT fiasco, which cost the State millions of euros.
I invite you to come to court and see for yourselves how these cases are being tackled and I invite the politicians to tell us how the VAT regime has changed since the scandal and what measures have been introduced in order to try and avoid another scandal.
But in Malta, the only reason the Prime Minister deems serious enough to warrant a ministerial resignation is when a minister lapses in his or her personal life. Gross failures of policy, on the other hand, are not a cause for resignation.
We are used to thinking of responsibility as something that applies to ministers, not to members of parliament. Indeed, it is MPs to whom ministers are accountable within the system of parliamentary sovereignty. Furthermore, MPs can’t technically resign their seats: they cannot leave Parliament in mid-session and this raises questions about what we might mean constitutionally by the responsibility of our MPs.
Furthermore, while MPs can be voted out by their constituents at general elections, they are not the delegates of their constituencies, but their representatives, and as such are expected to exercise independent (or, in practice, party-whipped) judgment in the interest of the nation as a whole.
We also have parliamentary self-governance which is the necessary corollary of parliamentary sovereignty and which many of our MP’s still have to learn what it means. Many of the MP’s are more absent than present, we do not know whether they are genuine when they pursue a cause or whether they are being paid to do it, those Ministers and Parliamentary Secretaries and MP’s who do not declare their assets go unpunished and in nutshell the concept of parliamentary sovereignty has been under threat for some time.
In Malta it is impossible to hold a minister responsible: even if a workman dies at his place of work and this place of work is the office of the Minister we do not bring a minister to book.
On the other hand, if this were to happen in a private company the employer is charged with involuntary homicide. I am not saying that this should not be the case, but what I am saying is that the laws applies to all ranks and there should be no favour.
At present in Australia there is a very strong debate going on with business groups adding pressure to hold ministers liable for workplace deaths, arguing they should bear the same responsibility as company executives.
This happened after the death of four people working in the government’s $2.45 billion household insulation program and the Environment Minister Peter Garrett is at the centre of this controversy as the victims worked for his ministry.
Although the principle of individual ministerial responsible is considered essential, as it is it is seen to guarantee that an elected official is answerable for every single government decision. In recent years some commentators have argued the notion of ministerial responsibility has been eroded in Malta.
While the doctrine is a constitutional convention there is no formal mechanism for enforcing the rule. Today ministers frequently use ignorance of misbehaviour as an argument for lack of culpability.
The government has taken the habit of appointing its own inquiry which is a direct influence on the independence of the judiciary. And while the Opposition argues that it will hold the minister personally responsible (and in the case of BWSC, all the Cabinet), the electorate feels increasingly helpless in all this.
How about discussing this subject on Bondiplus, Lou?
Any comments?
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