Concrete evidence of unaccountability

Malta has often been described as ‘unaccountable’, and ongoing revelations concerning substandard concrete used in the construction of Mater Dei Hospital seem to cement this impression with aplomb.

The results of the Philip Sciberras inquiry point towards gross criminal negligence and fraud on the part of main contractor Skanska, over a structural shortcoming that is expected to cost €30 million to repair. The inquiry report was submitted to the government, and has since been passed on to the police for criminal investigation.

As is only to be expected, the results have already been spun into political arguments by either side. Prime Minister Joseph Muscat has called on Opposition leader Simon Busuttil to assume political responsibility for the fiasco, while the latter accuses the government of ‘protecting’ individuals involved in the crime.

This bickering serves only to deflect attention away from the true scandal, which is that – once again – the Maltese taxpayer will have to foot the bill for a concatenation of errors and outright crimes committed by others. 

Among the findings of the Sciberras inquiry was that full criminal culpability rests with the Skanska Malta Joint Venture, which apparently certified that the concrete was of appropriate quality to build the Accident and Emergency ward of the new hospital. Four of the five tests conducted on the concrete were carried out by SMJV itself. The Sciberras inquiry concluded that these four tests were all fraudulent.

This would be scandalous even if we were not talking about a building designed to receive and temporarily house vulnerable patients in a hospital. Given that we are talking about the A&E department – thus making Mater Dei’s accident ward itself prone to accidents of a potentially fatal kind – this blithe disregard for human safety is not only criminal, but grotesque. 

Moreover there is separate evidence that the Foundation for Medical Services was well aware of this problem by 2011 at the earliest. Correspondence between FMS and Skanska, published in this newspaper, reveals that the problem had already been identified with regard to a reservoir built using the same concrete, and which developed a leak as a result of the quality.

Even earlier, efforts were made to alert the authorities to this state of affairs. As long ago as July 1996, project designers Ortesa Spa had flagged serious deficiencies in a letter to the FMS board, which was chaired by then health minister Louis Galea at the time.

But despite the evidence unearthed by the Sciberras inquiry and elsewhere, it remains debatable in the extreme whether the guilty parties will be made to shoulder their own responsibility. This is not the first time that the FMS tried (unsuccessfully) to recoup costs over similar deficiencies. In 2009, FMS signed a ‘Project Closure Agreement’ with Skanska, which included a clause (9.1) exonerating Skanska for any responsibility with regard to shortcomings in the completed project. 

This agreement has already been cited by Skanska to duck responsibility for the weak concrete used at Mater Dei.

In a letter to FMS president Paul Camilleri in November 2011, FMS CEO Brian St John admitted that the waiver agreement exonerated Skanska of all culpability for the problem affecting the hospital’s reservoirs: “Moreover, withholding monies contemplated by the project closure agreement, in the light of all outstanding works having been delivered, would be in breach of the same agreement,” he said.

This was further confirmed by Skanska in correspondence with FMS: “Any obligation that may have existed for SMJV to rectify the defect… was waived by FMS through Clause 9.1 of the project closure agreement.”

The cost of repairing the leaking reservoirs amounted to only €200,000, and still it proved impossible to recoup that money. One can only imagine how much harder it will be to claim €30 million from the same contractor, under the same legal conditions which have already proved detrimental to Malta’s interests.

Even if the present administration pursues the claim through all legal channels – for there is certainly a legal case to be made: Clause 9.1 of the PCA does not extend to cover criminal liability – Skanska has already declared that it does not consider itself bound by Maltese law: “In SMJV’s considered opinion, FMS’s attempt to claim that a relatively minor leaking water tank constructed prior to the Original Contract Agreement of February 2000 can be claimed under the Maltese civil code, contrary to the Project Closure Agreement, is incorrect.” 

This implies that the legal battle would have to be fought on foreign soil, at considerable cost and with no guarantee of success. 

It is for this reason that the issue of political responsibility assumes paramount importance. It is inconceivable that a crime of this proportion, that entails such enormous costs for Malta, would be paid for by the only party that has no blame whatsoever: the taxpayer. 

But there is more to this issue at stake than money. Unless responsibility is fully shouldered for the debacle at all levels – from the administration that permitted such agreements with Skanska, to the suppliers, contractors and certifiers who were involved in fraud – one can only expect the public to keep losing trust in the political system as a whole.