Edward A. Mallia, Attard
The auditor 'audited'? (1)
Like John Ebejer (November 7) I am not a legal person, but unlike him I am not even a planning person. Yet logic and keeping track of an argument are not qualities restricted to legal or planning persons. Even a common or garden citizen, not too concerned with covering his back, can make useful contributions.
Mr Ebejer makes a perfect start, by quoting the law on the function of DCC boards. The critical phrase says "the function of the DCC board is to take a decision on any development application". However, from that clear take-off point, Mr Ebejer moves quickly on to the tricky ground of unofficial and unminuted meetings between applicants and DCC board members. Such meetings are free of legal sanctions, he argues, as there is no intention of taking any decision, and because the number of DCC members present (at one point Mr Ebejer suggests that just the DCC chairman is there) does not constitute a quorum. The requirement that all DCC board meetings be held in public does not apply, as these sessions are not DCC board meetings - hardly a very clever way to get round the law. Without any written record of such meetings, there is no hard evidence that either assertion is actually true.
Then after further disclaimers about his (and the Mepa auditor's) lack of legal expertise, Mr Ebejer quietly torpedoes his own (leaky) boat. He says, "In truth (sic) it is the responsibility of Mepa's case officer to meet the applicant". However - an award-winning aspect of Mepa management this - "some Mepa case officers are averse to holding such meetings", so it is perfectly above board for DCC members to stand in for the case officer, as long as there are not too many of them, no decisions are taken and, one can add, no minutes of the meeting are kept. In that way, the DCC board function - for people attend these meetings by virtue of their DCC board membership - moves from public decision, to (potential) conniving (with applicant), to (certain) persuasion of and (possible) pressure on case officers, particularly the shy violets among these latter. This excellent way of going about things has the added virtue that "difficult" members of DCC boards may never be "invited" to these unofficial meetings and indeed may not even know that they had taken place. Any briefing, in the absence of minutes, can be distorted, inadvertently of course. The "absent" member could be placed at a disadvantage, and even completely outflanked at the public DCC board meeting. Who does the "inviting" anyway? Or do DCC board members invite themselves? Is there a system of rotation? What is it based on?
The accused and now acquitted former board members do deserve some sympathy for being made scapegoats. They acted like sheep rather than goats; and their intention was to protect the case officer, lest he dash his foot against some orlando furioso. The people in the dock should have been those who, by hinting at future but imminent preferment, and by unexplained presence at "consultation" meetings that seem to have cleared up no "obscurities" and to have led to no "improvements", exerted pressure on them.
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john ebejer
Nov 12th 2009, 08:33
@ Carmel Cacopardo
pg 19 of the Court decision: “ Illi ghalhekk jidher illi dawna l-laqghat setghu isiru b’mod legittimu u ma jidhirx illi kien hemm xejn irregolari fihom …..” (Translation: “It is therefore apparent that these meetings could be legitimately held and there does not seem to be anything irregular …….. “)
I do not agree that they lead to different conclusions – they are a different view of the same reality. Not only does the Court not confirm the auditor’ s view that such meetings are irregular or illegal, but it describes them as legitimate and notes that they had become standard practice.
Carmel Cacopardo
Nov 11th 2009, 22:18
@ John Ebejer ;
Whilst as you quote on page 23 of the decsion it is stated that “….laqghat li kif diga inghad jidher illi huma perfettament legittimi.” [that is, "...... meetings which as already stated are perfectly legitimate"] at no point in the decision is this consideration made. In fact on page 17 the following is stated "… jidher ghalhekk illi dawna it-tip ta’ laqghat huma prassi normali fi hdan l-Awtorita’ [ "... it appear therefore that these meetings are normal practice within the Authority].
Now these two statements lead to completely different conclusions.
john ebejer
Nov 11th 2009, 20:53
@Adrian Borg Cardona
1. The prosecution contended that the accused were not entirely sure that such meetings were legal so much so that “the Prosecution started to refer to these meetings as clandestine.” This was one of the two main points on the basis of which the prosecution decided to proceed with the case. (pg 14/15 of the Court decision). For the Prosecution the matter was very relevant. This notwithstanding, the Court chose to describe such meetings as “perfectly legitimate.” (pg 23).
2. I am not aware that government intends to prohibit such meetings but I will give you the benefit of the doubt. It is a normal process for legislation to be updated on the basis of knowledge and experience gained. If the law is changed to prohibit such meetings, it does not in any way imply that “….they were never authorised” as you suggest.
3. Such meetings were not stopped because the legal advice was that they were not illegal; an advice which was subsequently confirmed by the Court in the Mistra decision.
john ebejer
Nov 11th 2009, 20:38
@ Carmel Cacopardo
Item (e) on page 23: “….laqghat li kif diga inghad jidher illi huma perfettament legittimi.”
Carmel Cacopardo
Nov 11th 2009, 17:31
John Ebejer places the words "perfectly legitimate" within inverted commas indicating a quote from the Court's decision. I have gone through the whole decision and cannot find the said quote. Maybe John Ebejer could enlighten readers with the source of his information. If this is not possible would John Ebejer consider correcting his submission ? As in my view the Court's decision states something else which leads to a completely different conclusion.
Adrian Borg Cardona
Nov 11th 2009, 17:04
Mr. J. Ebejer: The Court did not decide anything of the sort. The issue of whether such meetings are legitimate or not was never an issue to be decided by the Court. The statement by the Magistrate is just her opinion and nothing else. There is a difference in what a Magistrate reasons or opines and what is the actual judgment. You will be pleased to know that in the proposed MePA reform such meetings will be prohibited because in reality they were never authorised. What amazes me is how nobody in authority stopped such meetings. Now I wonder why?
john ebejer
Nov 11th 2009, 10:01
I thank Prof Mallia for his feedback.
The auditor said that such meetings are illegal. The Court’s decision is that such meetings are “perfectly legitimate”
In my article I referred to the DPA to explain why I think the auditor’s legal interpretation is incorrect.
The points made by Prof Mallia do not relate to legal interpretation. If he thinks that such meetings should not be held then he should lobby for the legislation to be changed accordingly.
I wrote elsewhere and reiterate. It is the responsibility of case officers to discuss the application with the applicant. The failure of some case officers to do so is part of the problem, as is some case officers tendency to interpret policy in an excessively restrictive manner.