The Public Service Commission (PSC) is a remnant of British colonial rule. Established in 1939 in line with similar commissions set up in other crown colonies, it was trusted with the duty of advising the governor of Malta on issues relating to the selection and appointment of civil servants.
Notwithstanding the establishment of the PSC, the imperial government maintained its discretion over public offices to be able to expunge any disloyalty particularly from the higher offices. In fact, the actual selection and appointment of candidates lay with the governor, subject to the general overriding powers of the British Secretary of State for the Colonies.
No provision was made for the appointment of the PSC in Malta’s 1947 Constitution and it was only 13 years later that the PSC was re-appointed by the governor according to a new Constitution that took effect 16 months earlier. By the enactment of the 1960 PSC regulations the commission was given a more executive role with the added responsibility of advising on disciplinary issues and dismissal of public officers.
The administrative secretary, as the head of the public service at that time, however retained control over data that PSC could base its recommendations upon while at the same time held the right to reject a decision or proposal of the commission. In reality, the PSC did not have actual plenary authority over appointments while no absolute certainty existed that the information it required would be made available.
These serious constraints and obstacles made it difficult if not impossible for the commission to safeguard the interests of the civil service and to mete out justice and fairness in the execution of its duties.
With the advent of the country’s Independence, the PSC was entrenched as an independent statutory body in terms of article 109 of the Constitution which was adopted as a legal order on September 21, 1964. The Constitution assigns the function and responsibility to the commission of making recommendations to the prime minister, in whom the ultimate power is vested, on appointments in the public service and disciplinary control including removal from public office.
The Constitution lays down an obligation on the PSC to guide itself solely by the best interests of the public service and of the nation generally. The Constitution also protects the PSC from the institution of legal proceedings against it before any court over the validity in which it performs any of the functions vested in it by or under the Constitution.
The PSC has always considered the longstanding practice of recruiting political appointees in ministerial secretariats directly on the basis of trust as being widely justifiable to give ministers a sense of repose, even though the recruitment of public officers solely on the basis of trust invariably deviates from the legal terms of the Constitution. However, in 2007 the Nationalist government went a step further when it arrogated to itself a power that belonged to the PSC and went explicitly against the commission’s direction by granting an indefinite status to persons who had been employed on the basis of trust without even informing the commission.
The Labour government found the way already paved by the previous administration to continue with the practice of unconstitutional employment of public officers in positions of trust
Subsequently, in 2011 the same government extended the engagement of persons on the basis of trust to other positions in the public service outside ministerial secretariats. This practice was officially introduced by means of a circular issued by the Office of the Prime Minister that permitted the engagement of persons in the public service on a ‘person of trust’ basis supposedly in exceptional cases.
However, in practice ministers were given the green light to approve requests for engagement in specific positions by direct recommendation.
These positions served to bypass the merit principle by eliminating the competitive exercise through the issuing of a call for applications under the guidance of the commission as required by the Constitution. The irregularity of these appointments was componded even further by the fact that incumbents were being given fully fledged public offices without any reference to the Public Service Commission on the grounds that they has been performing administrative duties.
Ironically enough, even domestic staff engaged at the Prime Minister’s residence in Girgenti were included in these public offices.
In its annual reports for 2011 and 2012, the PSC expressed its concern about this unconstitutional practice but the government proceeded with its violation of the Constitution and bulldozed over the commission.
Two months before the last election the Nationalist government once again granted an indefinite status to persons who had been employed on the basis of trust as it had done earlier in 2007. On becoming aware of what had taken place the PSC objected to the method adopted by the government and contended that the granting of such an indefinite status had been ultra vires and invalid in the first place.
Following its rise to power, the Labour government found the way already paved by the previous administration to continue with the practice of unconstitutional employment of public officers in positions of trust. Despite Labour’s pre-electoral promise of meritocracy, equal opportunities and transparency, this abusive and illegal employment practice exploded to unprecedented levels, even exceeding the guidelines established by the government itself.
The number of staff given positions of trust with the secretariat of the Prime Minister alone exceeded the number provided for by more than three times. Such trusted staff included individuals implicated in a number of scandals involving thousands and even millions of euros in corruption that have sunk the Office of the Prime Minister to its lowest levels.
The PSC cannot just look the other way when it is aware that appointments and promotions in the public service, government agencies and other governmental entities are being given to individuals simply because they have helped a political party or a person to power, at the detriment of suitably qualified and competent candidates. It is both a constitutional and moral obligation on the part of the present members of the PSC to investigate and remedy such existing political discrimination.
The PSC must also not overlook its responsibility to enquire into the exercise of disciplinary control by heads of department and to investigate whether such delegated authority is being abused or misused. It would be immoral on the part of the commission to keep back from recommending to the Prime Minister to withdraw the authority delegated to a head of department to exercise disciplinary control when he or she has abused of such authority.
Eight months ago I personally brought to the attention of the PSC various cases of abuse of authority in the exercise of disciplinary control at St Vincent de Paul Residence. Subsequently, I spoke publicly about these cases where I explained that a different yardstick had been used for different employees.
While a consistent reluctance was shown to take any form of disciplinary action against workers at the residence known to support the ruling government party, even when they committed serious offences, drastic action was taken against workers of a different political inclination for much less serious offences.
Disappointingly, it took three months and several reminders to get a simple reply from the commission that it was investigating the cases. Following that, my requests about whether the investigation had been concluded were totally ignored. This is unacceptable by any standard of good administrative practice and does not reflect well on the integrity of the PSC.
Sadly enough, the best interests of the service have not always prevailed following the recomendations made by the PSC to the British governor in the old colonial days and subsequently to the prime minister after Malta became independent. Rather, the British governor and the prime minister have given greater importance to how one could best exploit the situation to the advantage of the imperial government or the political party in power.
The players may have changed but the game remains the same.
Denis Tanti is a former assistant director (industrial and employment relations) in the Ministry for Health.