Changeover and continuity

I was hardly surprised to read in a Sunday paper last weekend that the agreement between the government (or is it Enemalta?) and the ElectroGas consortium guarantees a minimum income to the consortium for 18 years. 

I was not surprised because any public-private deal such as this one would not work unless the private part that forks out the capital has an assurance that it will be given all the time needed to recoup the capital plus a return on its investment. Otherwise no such agreement is possible. Whether this particular agreement is fair on both parties is another matter: this assessment can only be made when all the details of the agreement are available.

The report concluded that Simon Busuttil’s ‘pledge’ to purchase electricity and gas from the cheapest sources if the PN is in power would therefore not affect the income of the ElectroGas consortium. 

Whether the report was a veiled attack against Simon Busuttil for making impossible promises or a not-so-veiled leak of what the ElectroGas contract says is a moot point. The matter, however, raises the important issue of continuity when the electorate decides to exercise its sovereignty and change the party in government. 

A change in administration may bring about drastic changes in the way the State is run but the State itself remains the same. A new administration cannot ignore contractual obligations made by the administration it has replaced because the contracts are made with the state or state agency that are still the same legal entity, albeit administered by a different set of people.

In other words, contracts made by a government can never be rescinded or ignored simply because a new different administration – that disagrees with the terms of the contract – is elected in office. Obviously, Simon Busuttil should never make promises that ignore this principle.

This is hardly news. Experience has shown over and over again that the continuity of the state is a legal imperative that cannot be ignored. On being elected in 1971 the new Mintoff administration decided to stop a number of contracts because it did not agree with some projects that the previous administration had embarked upon. Those who did not meekly accept this unilateral imposition sued the government in Court and won the day. Eventually the government had to compensate them for damages resulting from a breach of contract.

During the 16 years of Mintoffian administration (1971-1987) the PN in opposition made a number of ‘promises’ – some vague and some not so vague – to the effect that certain decisions of the government would be undone once it is in power. On taking over the reins of government in 1987, the new PN administration soon found out that embarking on new policies was one thing, while ignoring contractual and legal obligations was another.

I remember that in the case of one particular appointment in the upper echelons of the Civil Service on the eve of the 1987 election, the relevant shadow minister held a press conference to decry the appointment and solemnly declare that a new PN government would not recognise it and render it null and void. As it turned out, when the shadow minister became the minister he did no such thing: reversing a civil service appointment such as that particular one was legally impossible... and eventually the particular person – whom I do not need to mention – was still in the same post when the shadow minister turned minister left that particular ministry and moved to pastures new.

Transparency and secret deals

The topic of what happens when a new administration takes over after an election raises another issue: the current administration’s decisions to keep certain contracts secret rather than in the public domain. This is the case of the ElectroGas contract as well as in the case of substantial parts of the contract with Henley and Partners regarding the ‘sale’ of Maltese citizenship. The excuse is that these contracts contain commercially sensitive information that could undermine the contract itself if made public.

This could be true to a certain extent but, surely, there must be a way to ensure that the sovereign electorate knows what the government of the day has signed on its behalf, or at least is assured that a ‘secret’ contract is free of abuse. Therefore, as a matter of principle, all contracts that involve the spending of state finances should always be published.

The commercially sensitive parts of such contracts would normally involve amounts of money and percentages or mathematical formulas. These could be left out of the published versions of the contracts, but this is not enough. 

Whilst it is true that no quarter is given in Maltese politics and that our politicians are very often miserably petty and puerile, the alternation of power is the essence of democracy. Political parties should be at the service of the people and not for the selfish enhancement of the party members or of the parties themselves. It is therefore the duty of the government of the day to govern well in good faith and for the Opposition to oppose with loyalty as best as it can.

Keeping secret state agreements that somehow involve public financial matters should be a ‘no no’ for any government of any democratic country. That sort of stance attempts to hide the truth from the electorate that is entitled to know... and it is not even in the long-term interest of the party in government. After all, rather than government weakening the work of the Opposition, sharing knowledge with the Opposition can actually strengthen the hand of a government and help it to keep in check the rebels within its own ranks! 

How about a bipartisan parliamentary committee that ensures that the Opposition is aware of the parts of contracts that are not published? That would put the people’s mind at rest, even if all the members of such a committee would have to respect the confidentiality of the commercially sensitive details that are not in the public domain.

Such a solution, on its own, presupposes a mature way of doing politics.

Fifty years after Independence, have we arrived at that point?