The recent parliamentary agenda has been dominated by two major events: the resignations of Carmelo Mifsud Bonnici from minister responsible for home affairs and Richard Cachia Caruana from Permanent Representative of Malta to the European Union.

In both cases, an opposition motion was tabled in the House of Representatives which, when voted upon, lead to the resignation of the two gentlemen thanks to the vote of government backbenchers.

What is however different in these two cases is that while the former was a Cabinet minister, the latter was not. So the legitimate question which arises is: Can the opposition present a motion in the House of Representatives to remove an ambassador from his public office?

Mr Cachia Caruana was Malta’s Ambassador to the EU who attended, on a permanent basis, Cabinet meetings. Indeed, in Malta a practice has evolved for Prime Ministers of all colours to allow non-ministers to participate in Cabinet meetings.

Under the Labour government, the General Workers’ Union sent two representatives to Cabinet meetings.

Under the Nationalist government, Mr Cachia Caruana attended, on a permanent basis, Cabinet meetings.

On the other hand, interestingly enough, parliamentary secretaries, who are junior ministers, have no automatic constitutional right to attend Cabinet meetings even though, in practice, they do so when matters falling under their responsibility are discussed.

There can therefore be said to have arisen a constitutional convention whereby the Prime Minister, the chair of Cabinet, may invite on a permanent basis non-Cabinet members and non-members of Parliament to attend Cabinet meetings on a permanent basis.

Apart from attending Cabinet meetings, Mr Cachia Caruana was also a permanent representative, that is, an ambassador. According to article 111(1) of the Constitution of Malta, “power to appoint persons to hold or to act in the offices... (of ambassadors, high commissioners and principal representatives of Malta in any foreign country) and to remove persons so appointed from any such office shall vest in the President, acting in accordance with the advice of the Prime Minister”. The next question to be asked is whether Mr Cachia Caruana was a public officer. According to article 124(3)(ii) of the Constitution, Mr Cachia Caruana did not qualify as such because he was not selected to be Malta’s permanent representative from the public service. Hence, his appointment was not made from among career diplomatic staff at the Ministry of Foreign Affairs or from public officers in other departments and agencies within the public service but his appointment was political in nature.

From the above it results that Mr Cachia Caruana was a permanent representative appointed from outside the public service and a permanent Cabinet participant.

In so far as his formal removal from office of permanent representative of Malta to the EU goes, it should be the President, in accordance with the advice of the Prime Minister, who should remove him from office. As to attendance at Cabinet meetings, this decision is essentially in the discretion of the Prime Minister and his ministers.

The natural question that arises here is whether the House of Representatives may request a permanent representative to resign his office. If the permanent representative happens to be a career public officer then the answer appears to be in the negative due to the doctrines of ministerial responsibility and the anonymity of the public service.

In the case of a career public officer, it is the competent minister who should face the music in the House and, if at all, it should be the minister’s head that should be sought.

However, there may still be cases where a public officer may be subject to some form of censure by the House. For instance, such would be the case before the Public Accounts Committee when such public officer is found to be flouting financial regulations or, in the case of a chief executive of an agency appointed under the Public Administration Act, where s/he falls foul of his/her duties.

So there can indeed be cases where the House may take action against a public officer notwithstanding the doctrines of the anonymity of the public service and of ministerial responsibility.

What about ambassadors? The situation cannot and should not be different. However, in such case, the Prime Minister will then have to formally advise the President of Malta to remove such ambassador from office.

This is because the Constitution does not contain a provision to the effect that when an ambassador is to be removed the Prime Minister is not subject to the direction or control of any other person or authority, the House of Representatives being an example of such an authority. If the Constitution had a provision of this effect, then it would not have been possible for the House to seek Mr Cachia Caruana’s resignation.

So this was, historically speaking, the first and, possibly, not the last, time when a political appointee resigns from office in the same way that a minister or parliamentary secretary so resigns following a vote of no confidence.

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