A parliamentary motion of censure can be directed against the government understood in the widest sense, according to law faculty dean Kevin Aquilina.
However, Prof. Aquilina admitted he had doubts on whether Parliament could discuss a motion of censure against a person holding a position of trust. He referred to the Public Service Commission’s views that positions of trust were not in line with the Constitution.
“It appears that a person who holds an unconstitutional appointment on a position-of-trust basis might not fall under the definition of government, understood in the wider sense, and might not be open to a motion of censure.
“What may, however, be censured is the unconstitutional appointment on a position-of-trust basis, with far greater implications for the government than the censure by Parliament of one person holding such a position,” he noted.
In contrast, a constitutional expert, who preferred to remain unnamed, said that people engaged on trust basis should be more subject to parliamentary motions of censure than public officers. “The latter are subject to the Public Service Commission’s oversight and disciplinary mechanisms provided for by the Constitution. This does not apply to those engaged on a positions of trust.”
He added that, while Parliament could censure any individual paid by public funds, it was not clear whether the House could demand his/her resignation. “I believe that Parliament may censure them but then it’s up to the minister to dismiss or not.”
It is not the first time Prof. Aquilina has touched upon the legal niceties of parliamentary influence over government appointees. Back in 2012, he had written about similar issues surrounding a no confidence motion in then-Ambassador to the EU Richard Cachia Caruana.
The former chairman of the Justice Reform Commission, lawyer Giovanni Bonello, called procedures by Parliament against unelected persons “a grey area” given that the powers of the House, established and listed in the Constitution, did not indicate any authority that could pass a vote of no confidence in public servants.
The Constitution expressly protects those who serve in a public office from interference by the Executive and by Parliament. It is only the independent Public Services Commission that has any jurisdiction to determine their discipline and termination of office.
“However, our Parliament follows the British model, which functions in virtue of parliamentary conventions and precedents. After the [Richard] Cachia Caruana vote, it may well be that the position has now changed,” said Dr Bonello, a former European Court of Human Rights judge.