The report ‘PM’s legal advisor, not strictly for legal matters’ (June 14) raises compelling food for thought. Although the main thrust of that piece was that Prime Minister Joseph Muscat has appointed MP Robert Abela as his legal advisor, with the right to attend Cabinet meetings, should such appointment be allowed once the government’s legal advisor is the Attorney General (AG)?
Under both Nationalist and Labour administrations, legal services have been contracted out by the government to private law firms and advocates in private practice. So there is nothing new here. It is much of the same all disrespectful jamboree to the constitutional office of the AG.
Yet this raises a more pertinent question as to whether such contracting out – usually by direct order – should be a ministerial prerogative (as currently it is and unfortunately divesting the AG of his authority) or whether it should be entrusted to the AG’s Office.
Legal services should never be contracted out directly by ministries but should fall under the exclusive responsibility of the AG’s office. Otherwise political partisan considerations are taken into consideration which might not necessarily be in the public interest but of the political party in government such as paying back blue- or red-eyed boys and girls for having helped the party in government get elected.
The article raises other fundamental issues pertinent to State governance. This is because conflicts of interest in Malta tend to be institutionalised and allowed to flourish with impunity rather than being extirpated.
Over the years, Cabinet meetings have been attended by non-Cabinet members, that is, persons who are not ministers. I am not referring here to the cabinet secretary, civil servants in his office, parliamentary secretaries or other civil servants who might irregularly be called upon to attend a Cabinet meeting. All these officers of the State are bound by official secrecy and are part of the machinery of government. Nor am I referring to the Prime Minister’s chief of staff.
What I have in mind are those persons who attend Cabinet meetings, not one-offs, but frequently, who can practically be considered to be permanent non-Cabinet resident invitees.
Under the premiership of Dom Mintoff, two General Workers’ Union representatives attended Cabinet. When Eddie Fenech Adami was Prime Minister and his chief of staff became Malta’s principal representative to the EU (and continued to be so under Lawrence Gonzi), the principal representative continued to participate routinely at Cabinet meetings.
There should be a clear line of demarcation between government and party. The party should not – institutionally – be privy to State secrets
Under Prime Minister Alfred Sant, the deputy leader of the Labour Party George Abela attended Cabinet and the same practice was adopted by Joseph Muscat in his first legislature, with Toni Abela who was then the deputy leader. In the current legislature, the constitutional practice is continuing but it is Robert Abela who is attending Cabinet together with Louis Grech, former deputy prime minister and deputy Labour leader.
This constitutional practice has developed over time – to the worse of course – and has embraced General Workers’ Union representatives, deputy leaders of the party in government, and political appointees (Louis Grech and Richard Cachia Caruana as permanent representative).
The latest inroad which continues to exacerbate negatively the Constitution is that of appointing a sitting government back bencher as the Prime Minister’s advisor with the right to attend Cabinet meetings.
In the case of Robert Abela, contrary to his father George and Toni Abela, he is (at least at the time of writing) not a deputy leader of the Labour Party. But, contrary to all the persons mentioned above, Robert Abela is in a totally different position than them – he is an MP.
Two questions need addressing. First, should party members be allowed to attend Cabinet meetings? Second, should an MP who is neither a minister, nor a parliamentary secretary, but a government backbencher be invited to attend regularly Cabinet meetings? The answer to both questions, bearing in mind the constitutional doctrines of the separation of powers and of separation of government from the political party in government, require a negative answer.
In the former instance, there should be a clear line of demarcation between government and party. The party should not – institutionally – be privy to state secrets; nor should it be perceived to be dictating the shots to government. Even under Nationalist administrations we have had cases where the party was giving directions to government ministers.
One case which surfaced was when PN secretary general Paul Borg Olivier, by mistake, had wrongly addressed a compromising e-mail to Jason Micallef, Labour secretary general, which was intended for government ministers. It was an e-mail gone wrong but the contents whereof demonstrated the lack of separation between government and party.
As to the second question, a government backbencher should never form part of Cabinet. Now in the case of Robert Abela, although constitutionally speaking he is not a Cabinet member, his regular presence at Cabinet meetings makes him privy to all government business transacted during such meetings.
Where should his loyalty lie? To Cabinet or to the House? He entertains a conflict of interest as, contrary to all other previous Cabinet invitees, he is also an MP. How can he criticise the government in the House when he is participating in the discussions which lead to decisions taken at Cabinet which, for instance, his constituents might well be up in arms against?
But this is not the only institutionalised conflict of interest. For there are others which, under both Nationalist and Labour administrations, have been institutionalised through legislation.
Take the laws which allow government backbenchers to participate in the governance of the country.
In terms of article 3(3) of the Members of Parliament (Public Employment) Act, MPs can serve in government departments and as MPs criticise in the House the same policy adopted by the department they serve, even if that policy has been developed with their input, if not directly on their advice.
In terms of the Functions of Members of Parliament (Various Laws) Amendment Act, 2013, government backbenchers can chair public bodies which are answerable to themselves in the House.
Clearly there is a misrule of law in the above instances, one which runs counter to the constitutional principles of separation of powers and separation of government from political party in government. Yet the political parties in the House have only provided lip service compliance with the Constitution.
When it comes to brass tacks, they just simply rebuke the Constitution with all the disrespect it deserves, at least from their perspective.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.