A maze of government-owned bodies

To my mind, the Criminal Code reserves its harshest punishments to public officers, as there is a specific reference to bribery that applies only in their case

Edward Caruana
Edward Caruana

Last week a former official of the Foundation for Tomorrow’s Schools (FTS), Edward Caruana, was acquitted of the criminal charges of bribery and corruption.

Magistrate Donatella Frendo Dimech said it could not be proven that Caruana was a public official or employee at the time of the alleged wrongdoing. His contract of service dated October 2013 contained no indication that he was a public official. The court also noted that at the time FTS were the ones posting job vacancies, not the public service.

Without entering into the merits of the case, which is still subject to appeal, I find the point of Caruana not being a public officer as very intriguing.

According to the Maltese criminal code, there is a breach of the law when any public officer or servant who, in connection with his office or employment, requests, receives or accepts for himself or for any other person, any reward or promise or offer of any reward in money or other valuable consideration or of any other advantage to which he is not entitled. The character of public officer or person employed under the government is the first essential of this crime.

Legal experts say that the wording is very wide and embraces all officers or employees under the government. It includes all public officers or employees whether their duties are judicial, ministerial, executive or mixed.

Over the years, different administrations set up state-owned corporations, foundations and limited liability companies that employ directly their own employees, who are therefore not public officers. The ever increasing ‘persons of trust’ that are employed by ministers to ‘help’ them in their work are also not public officers.

In fact their employment, their rights and their duties are not covered by the provisions of the Constitution that sets up the Public Service Commission (PSC) that was meant to shield state employees from direct political interference. Whether this system actually achieves this aim, or not, is another issue, of course.

One wonders how the number of actual state employees today compares with the number of persons employed indirectly by the state through corporations, foundations and companies.

Currently there are allegations of corruption within Transport Malta – yet another body whose employees are not public servants or officers.

In actual fact there are an incredible number of persons employed indirectly by the state, but who are technically outside the system of public officers and therefore are not subject to the discretion of the PSC. They are also not subject to the law covering bribery involving public officers.

In the case of Caruana, I understand that his case was never referred to the PSC, precisely because he does not fall under its remit. In its sentence, the Court said that Caruana had moved to FTS after he had left his previous employer that was described as ‘a private company’ – Resource Support and Services Ltd. A quick search on the internet reveals that this is a state-owned company under the direction of the Prime Minister. Still, however, its employees are not public officials.

The maze of government-owned companies and other entities that habitually transfer ‘select’ employees to one another is incredible.

In the Criminal Code, there are other sections that refer to wrongdoing by any citizen, such as trading in influence. These sections apply to every citizen of Malta, whether a public officer or not. To my mind, however, the Criminal Code reserves its harshest punishments to public officers, as there is a specific reference to bribery that applies only in their case.

The issue therefore arises as to whether the current law on bribery of public officials should be amended to include also bribery in the case of employees of all organisations or bodies owned by the state, whether set up by specific laws, or otherwise.


Gorbachev’s death

Mikhail Gorbachev, the last leader of the Soviet Union, who brought the Cold War to a peaceful end, died last Wednesday in Moscow. He was 91 years old.

In most of Europe and the West, Gorbachev will be remembered for his time at the helm of the waning socialist superpower and for steering it towards a liberal reform agenda. 

For nationalist Russians, he will always be reviled as the culprit responsible for the demise and break-up of the ‘glorious’ Soviet communist empire.

His policies of perestroika – meaning restructuring – and glasnost – meaning openness – led to a thaw between the two main Cold War blocs that had been permanently on the brink of war since the end of World War II.

Debates around his legacy are particularly relevant at the current moment when Russia is involved in the invasion of Ukraine – a neighbour whose independence Gorbachev did not interfere with in 1991.

Gorbachev tried to liberalise the Soviet Union’s rigidly centralised legacy, aiming to reverse the stagnation experienced during the rule of Leonid Brezhnev, and eventually grew wary of communism altogether. But it was not until the late 1980s that his desire for peace shone through – amid major domestic upheaval – especially in the USSR’s member states.

He chose to let the Iron Curtain fall freely, which paved the way for the independence and democratisation of a number of Europe’s formerly socialist and communist nations.

First, it was Poland, where the Solidarność movement scored an unprecedented victory in the country’s first democratic elections in June 1989. This resulted in fears that Gorbachev could use force to restore its communist government, but that did not happen. Then the Berlin Wall fell in October 1989 and Gorbachev again did nothing.

After Gorbachev’s death, all eyes turned to Vladimir Putin who had called the end of the Soviet Union a “genuine tragedy” for Russia and the “greatest geopolitical catastrophe of the century.”

He had also blamed Gorbachev for bending to the demands of a “treacherous and duplicitous” West.

After Gorbachev’s death, Putin described him as a “statesman” who “deeply understood that reforms were necessary” and “strove to offer his own solutions to urgent problems.”

However, it quickly became clear that Gorbachev would not be venerated by the Kremlin as other former leaders had been.