It is not the intention of this piece, due to lack of space, to enter into a detailed discussion of all the articles contained in the Lands Authority Bill, Bill No 166 of July 6, 2016. I will instead restrict myself to two points: the office of Chief Audit Officer and the autonomy from government of the Lands Authority Board of Governors.

The Lands Authority Bill has an interesting provision related to the establishment of the office of Chief Audit Officer (CAO). The latter is appointed by the Board of Governors of the Lands Authority, a new office to be established by the Bill.

The CAO will be responsible for the running of the Internal Audit and Investigations Directorate. He is answerable for his findings to the chief executive officer and the Board of Governors of the Lands Authority, those same persons that he might be called upon to investigate.

The Bill does not however explain whether the CAO can be removed from office, by whom, for what reason and whether there is any review mechanism in such instances. Nor does it establish the relationship which the CAO should enjoy with the Auditor General. Nor does the Bill provide for any security of tenure for the CAO.

This officer’s method of appointment should not vest in the same body he is called upon to audit. If the CAO is to act serenely and autonomously from the Board of Governors, the latter should neither appoint, dismiss nor discipline the CAO.

Nor should governors establish the conditions of employment, salary package, performance bonus and other perks which he should enjoy. Otherwise there would inevitably be a relationship of subjugation and dependence by the CAO on the Board of Governors.

For the new office of CAO to be effective, he should be appointed, disciplined and removed by the Auditor General and the CAO’s boss should therefore be Parliament through the Auditor General.

Indeed, the CAO should be an Office of Parliament in the same way that Commissioners for Administrative Investigations who fall under the set-up of the Parliamentary Ombudsman, themselves ombudsmen for a specific sector, should be an officer of Parliament.

The chief audit officer’s method of appointment should not vest in the same body he is called upon to audit

Should the CAO feel threatened by the Board of Governors, the chief executive officer of the Lands Authority or any other officer or employee thereof, the CAO should have direct access to the Auditor General who should be required by a specific provision of the law to report in writing directly to the House of Representatives or to any Standing Committee which the House may designate for the purpose of dealing with such reports such as the Public Accounts Committee.

The latter committee should be empowered to enforce its decisions by means of a specific provision to that effect in the Lands Authority Act.

Otherwise if the CAO is left in a situation of complete dependence on and subordination to the Board of Governors, then this office will be a useless office which reports only to the Board of Governors who might simply opt to ignore his findings, more so when they might be the protagonists, not to say, culprits, in the CAO’s investigation.

It would not be worth the salary disbursed to this officer unless, of course, it is government’s policy to set up this office as a smoke screen to be used to conceal actual plans or intentions under the travesty of good governance. I sincerely hope that this is not the case though the provisions in the Bill are not conductive at dissuading me from entertaining this perilous thought.

The second point concerns the Lands Authority’s Board of Governance. It is composed of a chairperson appointed by the Prime Minister, a deputy chairperson appointed by the minister, two members of Parliament (one nominated by the Prime Minister and the other by the leader of the Opposition), a person nominated by the Planning Authority, another person nominated by the Environment and Resources Authority, and four other members appointed by the minister conversant in auditing and corporate management, an architect and an advocate.

All members are appointed by the government either directly (through the Prime Minister or the minister) or indirectly through government-appointed bodies such as the Planning Authority and the Environment and Resources Authority.

The presence of two politicians on the Board of Governors is not understood as it confuses the constitutional role of MPs with that of administrators. All these persons are removed from office by the Prime Minister or minister on the grounds or reasons set out in the Bill.

The minister may give directions in writing of a general character to the Authority and if it fails to comply therewith, “the Prime Minister may make an order transferring to the minister in whole or in part any of the functions of the Authority”.

This provision renders the law and the Authority it proposes to set up a dead letter if and when the Prime Minister so decides. There is no need to carry out any parliamentary investigation to establish whether the minister’s direction and the Prime Minister’s allocation of the Authority duties to the minister were legal or not. Nor is there is need of parliamentary intervention to attempt to understand why the Authority has not complied with the minister’s directive which might, after all, be outright and unequivocally unconstitutional, illegal, unpractical to implement, or the Authority might simply not have the necessary resources – human, financial, spatial, etc. – to carry it out.

The Authority is bound to transmit a copy of its minutes to the minister even if certain matters it might be discussing might be of a confidential nature and not in the interest of good governance to have its minutes passed on to the minister where it is discussing what stand to take against an alleged irregularity committed by the minister which the Authority is being given legal advice to contest.

It is not understood why the minister should be in receipt of confidential information held by the Authority or why the Prime Minister is empowered to take over all the functions of the Authority and assign them to the minister.

Not only so, there is not even a requirement that when a step is taken, it is rendered public through a Department of Information media release, a government notice in Government Gazette or laying on the table of the House of such order during the first sitting of the House after it is made.

It is clear that, in this respect, the government does not cherish openness, transparency and good governance. Yet government is still in time to redress these anomalies and to ensure that while the Authority is autonomous from government the CAO is afforded the best legal tools to function in an effective and serene way, even if government has opted to pass the Bill through all the stages in the House with excessive celerity without allowing the public to express its serious concerns on certain aspects of the Bill.

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