The Government’s White Paper on Parliament, published recently, proposes the establishment of a parliamentary service and a Parliamentary Commissioner on Standards. Both are very laudable steps in the right direction.

Absence amounts to dereliction of duty which should be punished with the severity it merits- Kevin Aquilina

A parliamentary service would detach the administration of the House of Representatives from the public service so that the administrative arm of the House would enjoy full autonomy from the Executive and be answerable to the Speaker.

Indeed, one must credit the current Speaker, Michael Frendo, for having taken a number of initiatives which affirm Parliament’s autonomy from Government. One of them was the removal of ‘gov’ from the address of the House of Representatives’ website.

Cosmetic as this may appear, it is impregnated with significance. Also, for the first time in parliamentary history, the House of Representatives is publishing Parliamentary Notices (as distinct from Government Notices) in the Government Gazette.

The White Paper continues to develop this much needed thinking to strengthen the House of Representatives’ autonomy from the Government in the interests of a proper functioning separation-of-powers doctrine.

In Malta we already have a number of services. The public service, the security service and the military service (the Armed Forces of Malta) are all established by different laws. The White Paper is now proposing to add a parliamentary service which will enjoy a separate and distinct legal personality. This service will “provide administrative and support services to the House of Representatives”, its members and committees.

Being a consultative document, I propose six ways in which the Bill can be further improved.

First, clause 32 of the Bill refers to article 133 of the Criminal Code concerning the disclosure of secret information. However, article 133, although still extant on the statute book, has been superseded over time in particular, to a very great extent, by the Official Secrets Act. Hence, the reference in clause 32 of the Bill needs updating.

Second, if a Member of Parliament is found to be in breach of the Code of Ethics, only three sanctions can be applied in terms of the Bill: a severe reprimand and admonition by the Speaker; censure by the House; and suspension for one month from attending House sittings.

I totally disagree that an MP in breach of the Code of Ethics should be suspended from attending House sittings because it is an inderogable duty of a Member of Parliament to participate fully in House business. Such a ‘punishment’ would only be to the benefit of those MPs who irresponsibly absent themselves from House sittings.

If at all, attendance for Parliamentary sittings should be set out in the law as an inderogable duty that an MP owes to constituents. MPs who do not attend regularly should be punished, and a pecuniary punishment should be applied. If not, the two other punishments listed in the law would probably have no deterrent effect.

Third, the Speaker should be empowered by law, even if need be through an amendment to the Constitution, to withhold an MP’s honorarium for up to one year, depending on the gravity of the case, and should the MP fail to attend on a regular basis when the honorarium is withheld, he or she should be made to refund the equivalent amount of honorarium for all those sittings missed.

Fourth, as MPs, including ministers, sometimes fail to attend House business, evidenced when the House adjourns for lack of a quorum, the absent MPs should be fined €500 for each sitting missed. After all, this is why they receive an honorarium and that is what accountability is all about. This measure would undoubtedly introduce rectitude and seriousness in the House. Exceptions to this rule should apply only when the defaulting MP has already obtained the Speaker’s approval to be absent from a sitting for a very valid and exceptional reason such as ill-health certified by a medical practitioner on oath before the Speaker.

Pairing should not be introduced as a measure to skip House business. The law needs to ensure that the House – which as a part-time Parliament is already handicapped – functions properly and efficiently. It must be made clear to all MPs that attending sittings is not something capricious but a duty owed to the electorate and that absence amounts to dereliction of duty which should be punished with the severity it merits.

Fifth, an MP who is repetitively found to be in breach of the Code of Ethics should be expelled from membership of the House and not allowed to be a candidate in any election, either indefinitely or for a period of time, say at least 10 years. Amendments to the Constitution would be required in this respect. The same applies for MPs who fail to file their annual financial returns by the due date.

Finally, the Committee of Privileges should not be the decision-making body for breaches of the Code of Ethics. This is because, being a Committee of the House, members will not vote objectively but in line with their Whip’s direction. The decision would end up being political and partisan; each time an MP is accused, colleagues from the same party on the committee would be more interested in exculpating their fellow MP rather than seeing justice served in the public interest.

One cannot expect a different behaviour in view of the institution of the Whip. This is all wrong and the matter should not be allowed to degenerate in this way. Otherwise, the punishment meted out would end up being a very feeble and ineffective one.

This will create a mockery of the Commissioner for Standards, already considered a toothless and irrelevant institution. The seeds of failure of this office are already ingrained in the Bill. Any accusation of breach of the Code of Ethics, to be successful and proper, should be decided by the organ of State competent to decide these matters.

And this is not the House of Representatives or one of its committees. Justice is administered and dispensed by the courts and it should be the Constitutional Court, the highest in Malta, that, as a court of original jurisdiction, ensures an accused MP is afforded a fair trial and that he or she is not judged by peers on purely political partisan grounds, with the injustice that this would bring about to the due and proper administration of justice in Malta.

Procedures doomed to fail from the very outset should be avoided. It is better not to have a Commissioner for Standards than to have a dysfunctional one, just for the sake of boasting of having one.

Prof. Aquilina is Dean of the Faculty of Laws at the University of Malta.