The engagement of Labour backbencher Glenn Bedingfield as parliamentary questions’ coordinator within the OPM fuelled controversy after it transpired that his job could have put his seat as an MP at risk. Other MPs are in a similar situation and it could be a problem for democracy. Keith Micallef examines the issue.

The Constitution provides for checks and balances by laying down a demarcation line between legislators (MPs) and the executive (ministers and parliamentary secretaries). The distinction is meant to minimise the risk of conflict of interest.

However, Labour’s decision to allow MPs to sit on State entities soon after it was elected to power in 2013 has blurred this division. Government backbenchers have been appointed heads of State bodies such as the Occupational Health and Safety Authority.

In legal circles the move raised eyebrows. “Will they serve their political master at Castille or strive to safeguard the autonomy of their authority, even at the cost of facing a political backlash?” one legal source told this newspaper.

Another concern is the manner of their appointment, which might not be in line with Article 110(6) of the Constitution stating that such posts should be filled through a public examination or through the Public Service Commission.

Clearly, there have been a number of instances where an MP has been engaged on a position-of-trust basis without a call. Apart from the OHSA, the appointments involved the Grand Harbour Regeneration Corporation as well as the Commissioner for Simplification and Reduction of Bureaucracy.

From a purely legal perspective, certain scenarios could lead to the unseating of an MP. Article 55(1) (c) of the Constitution states that a seat may become “vacant” if the MP is engaged on a contract of works with the government, unless exempted by Parliament.

However, if the MP in question discloses this fact to the Speaker “as soon as practicable” the House may, by resolution, exempt the MP from the provisions of the ban.

How can he be impartial and not entertain a conflict of interest as an MP?

Article 54(1) (b) is also very relevant to this debate. It states that “no person shall be qualified to be elected as a member of the House, save as otherwise provided by Parliament, if he holds or is acting in any public office or is a member of the Armed Forces of the Government of Malta”.

This provision, however, must not be viewed in isolation. According to the Members of Parliament (Public Employment) Act, enacted in 2004, only those with a salary higher than Scale 6 do not qualify to become an MP. However, this parameter can be amended by a simple parliamentary majority to stretch to any other salary scale. The government could simply amend the law, and change the applicable scale, if faced by an imminent attempt to mount a legal challenge to unseat an MP.

However, in such a case there could be serious repercussions. If, for example, the bar is raised to Scale 4, that would mean, at least on paper, that public officers in grades like the Assistant Attorney General and the Chief Electoral Commissioner could become eligible to contest elections.

In that case the separation between the Legislature and the Executive which is fundamental for any democracy would probably be dealt a serious blow.

MPs on government salary

There are at least four Labour MPs receiving pay cheques directly from the government for direct employment, possibly in breach of the Constitution’s provisions and of the principle of separation of powers between the legislature and the executive.

Glenn Bedingfield has admitted in Parliament that he is employed by the government as OPM coordinator for parliamentary questions, or at least held such a post until the end of last year. He was employed at Scale 5, meaning that he is in breach of the Scale 6 parameter.

Mr Bedingfield would not say whether he informed the Speaker in order to seek an exemption and the latter was not forthcoming either when asked if he had been contacted by the MP on the matter. Instead Speaker Anġlu Farrugia referred this newspaper to the declaration of assets which MPs must submit by the end of next month.

Another parliamentarian whose occupation could clash with his parliamentary seat is Labour MP Alex Muscat, the Prime Minister’s deputy chief of staff.

Asked if he had sought legal advice on his position and if he had flagged the matter to the Speaker, he said this newspaper had a wrong interpretation of the law. Yet he failed to cite any legal provision to back his stand.

“I am engaged on a definite contract within the Prime Minister’s Secretariat. This is a common contract of employment, though at a lesser level than other contracts of employment of other MPs with the public service and government entities,” he said.

Questions have been also raised about Stefan Zrinzo Azzopardi, as GHRC chairman, as well as Rosianne Cutajar who is the Commissioner for the Simplification and Reduction of Bureaucracy. Their conditions of employment and salary scales have not been made public. But the overriding concern is that these MPs have a conflict of interest – they cannot act as a check on the government they form part of.

Recently it also transpired that several contracts for legal services were granted to the law offices of Labour MP Robert Abela.

“How can he be impartial and not entertain a conflict of interest as an MP when he partakes and contributes to Cabinet discussions and is also privy to Cabinet secrets,” one legal source commented.

The need to preserve checks and balances, though, should apply to both sides of the House: the public office retained by PN MPs Kristy Debono at the Malta Gaming Authority and David Agius at the Malta Freeport Corporation are also questionable.

The case of Mabel Strickland

In 1953, MP Mabel Strickland (who was not in government) was unseated on the grounds that Progress Press, a subsidiary of Allied Newspapers Limited, of which she was chairman and managing director, had been awarded government contracts. These comprised the printing of Legislative Assembly debates, football pool coupons and agricultural vouchers.

Ms Strickland forfeited her seat in the wake of a landmark court judgment which said that her seat had to be vacated as it was in breach of the Malta (Constitution) Letters Patent of 1947.

The same court rejected a similar request made against Malta Labour Party MP Agatha Barbara. She retained her seat after the court deemed that her role as a Lotto Agent did not fall within the definition of public office and hence there was no conflict of interest.

A legal source yesterday described these cases as testament to the rigour adopted by the courts to protect the independence of the Legislative Assembly from the Executive, at a time when Malta was still a British colony.

“It clearly sets a strong example of how the same levels of protection should be applied nowadays – in a developed, post-independent democracy where the constitutional safeguards of checks and balances between the different pillars of democracy should be even stronger,” the source said.