Ministerial accountability is a pious wish in our constitutional system of government. This is because there are no clear guidelines in constitutional law to ensure the prevalence of ministerial accountability so that collective ministerial responsibility as we have known it to date is eventually replaced by a more transparent, open, democratic and fair doctrine: that of ministerial accountability.
Indeed, the doctrine of collective ministerial responsibility enshrined in article 79(2) of the Constitution has been sometimes resorted to in the past as a stratagem to nullify ministerial accountability. Because of the doctrine of ministerial responsibility, Cabinet ministers and backbenchers are obliged to defend the maladministration of Cabinet ministers, even if ministers or MPs on the Government’s side might not necessarily endorse on a personal level Cabinet or ministerial maladministration.
It does sometimes happen that ministers responsible for maladministration, rather than taking the honourable decision to step down, instead find solace in the doctrine of ministerial responsibility once they know that if they have erred, even if grossly, fellow ministers and MPs hailing from their own political party have no other political option but to bail them out in Parliament.
As this doctrine tends sometimes to work out in practice, collective ministerial responsibility reduces itself to a question of governmental survival rather than governmental accountability.
In a country where few are those ministers who admit to maladministration – even if it not necessarily always carried out by them but by their subordinates in the public sector – the culture of resignation in the public administration (ministers and the leadership in the public sector) have found it very difficult to take its roots on Maltese soil.
The latest Auditor General’s report continues to harp on the same chord: financial maladministration in government.
It appears that the necessary command and control structures in ministries are not in place and have never been from what the Auditor General finds over the years.
Corrective measures should be taken by the Principal Permanent Secretary and permanent secretaries to ensure that maladministration is not the rule in the public service but the exception.
In order to foster ministerial accountability as opposed to ministerial responsibility, I am proposing that the matter should not be left on the political level but should be given a legal form. This can be done through the enactment of a law that sets out six levels of ministerial accountability, namely: (a) redirecting the question to the relevant minister; (b) providing all relevant information; (c) providing full explanations; (d) taking any remedial action; (e) accepting personal culpability or (f) resignation.
Redirecting the question to the relevant minister applies where the matter falls outside a minister’s responsibility and is redirected to a ministerial colleague or other government or non-governmental entity with responsibility for that particular business of government.
Providing all relevant information is appropriate when the only requirement is for the minister to provide some factual information concerning a matter within an area for which he has responsibility.
At times, ministers procrastinate, especially when answering parliamentary questions, in providing timely information to members of Parliament/s requesting such information, especially if the information happens to shed light on government maladministration or embarrasses the Government. Sometimes, not only days, weeks and months are taken to answer a parliamentary question but even years.
Ministers at times do not seem to be sensitive enough to the fact that it is their constitutional duty to answer parliamentary questions within as reasonably a short time as possible.
Providing a full explanation is where, in order to discharge responsibility, a minister gives an account of the events or actions taken but where no corrective or remedial action is required. It does happen that sometimes an explanation may set the record right and answer the legitimate preoccupations of the press in the performance of its democratic public watchdog function.
When ministers or people in authority remain silent speculation thrives. At times, it is very convenient to hide behind secrecy and confidential provisions in Maltese law without taking the necessary steps to amend or repeal, or suggest the repeal or amendment, in certain circumstances, of such provisions.
Taking any necessary remedial action concerns instances where some action was, or is required in response to events that have occurred, or decisions have been taken by a minister or any subordinate, which require some corrective or remedial action. However, when such actions are indeed taken, they should be followed up by the necessary timely information being given to the public and the media.
Ministers are expected to accept personal culpability for their own acts and omissions and for those of their advisers and persons in authority in the public service and public sector falling under their ministerial portfolio and other instances in which they have participated or of which they were aware or should have been aware.
In determining whether a minister is personally culpable, ignorance of a matter does not excuse the acts or omissions of the minister where the minister should have known or should have ensured the matter was drawn to his/her personal attention. Without limiting the circumstances in which ministers should have known of any matter, they are deemed to have the knowledge of their heads of department and others who report directly to them within the public sector and all members of their personal staff.
Resignation is appropriate where a minister has lost the confidence of the House of Representatives or of the Prime Minister in the minister’s capacity to satisfactorily discharge the responsibilities of office.
If a vote of no confidence is passed by the House of Representatives in a minister s/he is expected to resign immediately after the vote is taken. Should s/he fail to do so, the Prime Minister would be right to reshuffle Cabinet in a very short period after the taking of the vote of no confidence in a minister and pass on to advise the President of Malta in terms of article 82 of the Constitution to remove the minister who has been found not to enjoy the confidence of the House of Representatives.
The Government should be prudent in these cases and not appoint such former minister or other person who has lost the confidence of the House of Representatives in any other public office in the public service or public sector, at least until the end of the legislature in question.
The above six principles of ministerial accountability should be written down in the law to become binding as they are of the essence to the governance of society rather than being left to political convention that allows a minister to run scot free even when thousands of euros are squandered by such minister or by staff falling within his/her ministerial portfolio as detailed in the Auditor General’s reports day in, day out.
Financial and administrative accountability needs to be instilled in our laws rather than leaving the matter to be addressed, very much unsuccessfully at times, by the Government.
Moreover, the necessary disciplinary proceedings should be instituted against those public officers and public sector employees who are caught squandering public money and public officers who held responsible.
While ministers should be obliged to resign from office in the case of maladministration within their ministry, the carrying of political responsibility has to be accompanied by the taking of disciplinary measures where public officers and public sector employees are concerned, including the right to reimburse the Government where monies have been found to be squandered by ministers, public officers and public sector employees.
Proper financial accountability should be enforced through the full rigour of the law and the gaps that exist in this respect in the law need to be seriously tightened up.
Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.