Financial services arbiter not a public office

The question which I address in this piece is whether, for the purposes of the Constitution, the office of Arbiter for Financial Service is or is not a public office.

Following his resignation from the Broadcasting Authority (BA) earlier this year, Dr Reno Borg was appointed in May 2016 Arbiter in terms of the Arbiter for Financial Services Act, 2016 (Chapter 555).

In order to address the constitutionality of this appointment, the following provisions of the Constitution are relevant. 

Article 118(4): ‘A member of the Broadcasting Authority shall not, within a period of three years commencing with the day on which he last held office or acted as a member, be eligible for appointment to or to act in any public office’.

Clearly this provision does not allow a BA member to be appointed ‘in any public office’ unless a period of three years has elapsed since the last date that such person held the office of a BA member. A contrario sensu, if such a BA member is appointed to an office which is not a ‘public office’ then this prohibition does not apply to him/her. Everything hinges upon what is a ‘public office’. This matter is dealt with in article 124:

‘(1) In this Constitution, unless the context otherwise requires -

“public office” means an office of emolument in the public service;

“public officer” means the holder of any public office or of a person appointed to act in any such office;

“the public service” means, subject to the provisions of sub-articles (2) and (3) of this article, the service of the Government of Malta in a civil capacity;…

(2) In this Constitution, unless the context otherwise requires, “the public service” includes service in the office of judge of the Superior Courts, service in the office of Auditor General and Deputy Auditor General, service in the office of magistrate of the Inferior Courts and service in the office of a member of the Malta Police Force.

(3) In this Constitution “the public service” does not include service in the office of –

(i) Prime Minister or other Minister, a Parliamentary Secretary, Speaker, Deputy Speaker, a member of the House of Representatives, a member of a Commission established by this Constitution;

(ii) save where the holder of the office is selected from the public service, an Ambassador, High Commissioner or other principal representative of Malta in any other country; or

(iii) save in so far as may be prescribed by Parliament, a member of any council, board, panel, committee or other similar body established by or under any law’.

The office of Arbiter is not a ‘public office’ because:

(1)    it is not expressly included in the list of public offices in article 124(2) of the Constitution;

(2)    it is excluded from being a public office by article 124(3)(iii) of the Constitution as there is no law in Malta where Parliament has expressly prescribed the office of Arbiter to be a public office;

(3)    the special law, Chapter 555, does not specifically constitute and designate the office of Arbiter as a public office;

(4)    a public officer is expressly prohibited by article 14(3)(b) of Chapter 555 from being appointed Arbiter;

(5)    a reading of article 124(3)(iii) reveals that it is contemplating three broad classes of non-public service offices: first, it refers to the category of MPs and constitutional commission members; second, it refers to the class of principal representatives of Malta abroad understood in the sense of article 111 of the Constitution; and third, it refers to the class of non-public service members of a council, board, panel, and committee or other similar ‘body established by or under any law’. These words are reminiscent of article 110(6) of the Constitution which refers to ‘any body established ... by or under any ... law’. The persons referred to in article 124(3)(iii) are those persons appointed to councils, boards, panels, committees and other similar bodies in terms of various ordinary laws establishing, for instance, various public corporations (authorities, corporations, centres, etc.). These are all non-public service bodies (that is, bodies ‘outside from the public service’) to which the Constitution refers to in article 110(2)(c) and (6);

(6)    in terms of article 10(2) of Chapter 555, the Arbiter forms part of the Office of the Arbiter for Financial Services which is a non-public service office. The common characteristic between a council, board, panel or committee, in terms of article 124(3)(iii), is that all persons appointed on these councils, etc. are non-public service officers. Reference has to be made to the ejusdem generis principle of interpretation. This Latin terminology is translated as ‘of the same kind or class’. The words ‘or other similar body established by or under any law’ are of a general nature. Yet these words are preceded by terms which are of a specific nature, that is, the words ‘any council, board, panel, committee’. The ejusdem generis rule implies that the general words ‘or other similar body’ have to be interpreted to include other similar terms as those listed in the provision which enjoy the same characteristic as a ‘council, board, panel, [or] committee’. Such common denomination is that they are non-public service offices.  

Thus, a former BA member may be appointed Arbiter even if less than three years would have elapsed since when s/he held last the office of BA member because the office of Arbiter is not a public office in terms of article 124(3)(iii). The restriction in article 118(3) is inapplicable in such a case.

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta