A government is as strong as the power it gives to its country’s institutions and people to review or challenge its decisions or acts.
Democracy, the power to the people, for the people and by the people, has been proven along the years to be the best method of governance provided two fundamental rules are kept in place. First, that the power is not vested in a single person but is separated in three organs (the Executive [the government], the Legislative [Parliament] and the Judiciary [court]) and that mechanisms are in place so these three organs perform checks and balances on one another.
That is why the drafters of the most important democratic constitutions worldwide went into great detail and forged mechanisms whereby each branch “checks and balances” the other branches of the state. A judge, for instance, has the unique power to declare a law (a product of the legislature) as being null and void, thereby exerting control on the excesses of the Legislative branch. At the same time, the Legislative branch is empowered to exert control of the Judiciary by being able to impeach a judge.
The mechanisms giving rise to the constitutional checks and balances are the essence of a healthy democracy.
In Malta, the Executive is, undoubtedly, a giant when compared to the other branches of the state. The Legislative branch is a sort of giant-killer, a David who, in exceptional occasions, has the power to kill Goliath by declaring it lost the trust – directly by means of a motion or indirectly by dismissing a financial Bill – in a member of the Cabinet or the government as a whole once every blue moon.
In the “in-between cases”, however, in all those important cases where oversight, transparency and double-checking is required, the government simply makes use of the majority it has in the Legislative branch and basically carries the day.
Few were the instances in our young democratic history where governments rose to the occasion and set up new mechanisms whereby the democratically elected Legislative body could investigate a decision by the government.
One important mechanism was that contemplated under the 1942 House of Representatives (Privileges and Powers) Ordinance, as subsequently amended and reinforced, which transposed into positive, written law the inherent power of the House to order the attendance of witnesses and experts before it to give evidence or an opinion on any matter relating to or connected with the Government of Malta or on any matter regarding which the House considers it in the public interest to have that information.
Contrary to what Minister Austin Gatt said in public, to the effect that witnesses who appear before Parliament have no protection whatsoever, the Ordinance provides a considerable degree of protection for people giving evidence in front of the House or one of its Committees. In fact, it refers to four key provisions in the Code of Organisation and Civil Procedure that regulate the rights of witnesses summoned by a court of law (S 566, 588, 589, 590(1)), including the all-important provision that gives the outright right to witnesses not to answer questions that might incriminate them.
The minister’s charge that, had people been summoned before the PAC, the opposition would have done what they liked is simply a shallow, dismissive analysis.
In the case of the BWSC, the request was simply for a number of key people to be summoned in front of the PAC to be questioned and grilled on one of the most substantial expenditures made from public money.
In a twist of fate, during a recent PAC sitting, Dr Gatt provided some new facts, all of which merit serious analysis by the Committee, not least the point of whether one of the bidding companies (Bateman) had had illicit access to information within Enemalta. This proves the opposition’s point even more strongly – a profound analysis can only be done by calling the key witnesses involved in the project!
The minister also charged on various occasions the PAC is not an investigating committee but simply examines accounts. Nothing, of course, can be dangerously further from the truth.
First, Standing Orders give the PAC certain powers, including to examine accounts and reports. Even more importantly, it can inquire (not examine but inquire) into public expenditure. The verb “to inquire” is defined as 1. to seek information by asking a question; 2. to make an inquiry or investigation.
Secondly, leading constitutional authors have all dismissed as pure rubbish arguments by people who tried to belittle the role of the PAC. J.F. McEldowney’s analysis of the PAC in Westminster would suffice. He describes it as the “doyen” of select committees with no other select committee having the “same authority, clarity of remit and breadth and depth of advice available to it”.
William Gladstone himself, the father of the PAC in the middle of the 19th century, warned of the danger of limiting the powers and functions of this Committee.
Thirdly, now that the European Commission declared that insofar as it is concerned, the whole Delimara power station extension process complied with article 10 of Directive 2004/12/EC, it is more important to bring out the truth and nothing but the whole truth, within the limits of the law.
The realisation that for a bunch of people who have a lot of things to hide the government decided to throw such an important mechanism to the gallows is indeed sad and dangerously undemocratic.
owenbonnici@onvol.net
Dr Bonnici is the opposition spokesman for youth and culture and a member of the Foreign and European Affairs Committee.