I had intended my press release of January 9, replying to the previous Department of Information statement, to be my final word on the issue of the Malta Community Chest Fund, L-Istrina, and the enrolment of the MCCF with the Commissioner. However I had not anticipated The Times article MCCF "Cannot Enroll As An NGO" of Saturday, January 9, which needs an answer to clear the public confusion it must have created.
The first point that must be clarified is that the long comment quoted in the article was not, as the impression may have been given, an answer to the Attorney General but the contents of the press release alluded to and should have been treated separately from the article.
The second is that I was never informed about the consultation requested by the President of the time in September 2008, nor was the advice referred to by Dr Silvio Camilleri copied to me. I have still not seen it to date. Knowledge of it only came to me in a letter from the President's Office of August 17, 2009. The AG's advice was quoted but not copied to me. The letter was sent to my legal consultants and, subsequently, their written advice was forwarded to the President's Office on September 22. My legal advisors' view is that the MCCF qualifies to enrol if the administrators, including the President, use the facility provided by the law to make declarations confirming they will act independently of the State, or provided it changes parts of its statute indicated to it by them. My legal consultants' advice was extended, at my request, to the relation between the MCCF and l-Istrina. I received an acknowledgement but no reply to this letter.
If the AG's advice to the President is unequivocal (as The Times article seems to indicate), then the way forward is to resolve this difference of interpretation. This can happen, in my view, if the MCCF unequivocally declares itself a state organisation in its statute. The matter of the legality of the PBS granting it its facilities to L-Istrina will not then arise. My office will in the future deal with the MCCF as a state organisation, or part of the state. This is what, however, I hoped would not happen.
First because I had hoped that the MCCF (and not just the MCCF but other organisations with a government interest) would want to take advantage of the four-year window in the law to amend its present status as a part state organisation, thus making it unequivocally eligible for enrolment as a voluntary organisation. This would, for obvious reasons, be better for its public image (it is very odd, to say the least, that a state organisation mobilises volunteers and collects public funds). Second, as a state organisation it would be obliged to conform with the law requiring it to benefit only voluntary organisations that are enrolled with the Commissioner and this could be a major restriction for it to achieve its goals. This was the advice on l-Istrina communicated to the President's Office.
On the other hand, as an enrolled voluntary organisation the MCCF would qualify for state benefits and could distribute the proceeds from its activities to whichever organisation it likes. The proviso, of course, is that enrolment brings the organisation within the legislative scheme of the Voluntary Organisations Act for transparency and accountability, a scheme which is developing in collaboration with the voluntary sector. But this would still be the case, perhaps even more so, as a state organisation, since the state is not above the requirement of public accountability as defined by the laws applicable to the State. These include procurement rules, submission to the Auditor General and other like systems, which are not tailored to the realities of voluntary organisations.
This statement, I hope, makes my position clear and I am drawing a line under the whole matter which has taken an inordinate amount of my time and energy. I should not, as a Commissioner, be wasting it struggling to bring the MCCF, the Church organisations, and the government on board to collaborate with the spirit of the law, to promote a culture of transparency and accountability in the collection, distribution, or application of funds, particularly when from public donations or state benefits (i.e. our taxes). They should be the ones leading by example.
Prof. Wain is Commissioner for Voluntary Organisations.