Not in ‘the national interest’

When still in opposition, the Labour Party had insisted – not without good reason – on a revised code which ironed out all the loopholes and inconsistencies in the document it would replace

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

There is something seriously wrong with the new Ministerial Code of Ethics revealed this week: something that flies in the face of almost every political argument we have heard on the subject from the Labour Party over the past decade at least.

Before turning to the details, it is worth remembering why this document assumed so much importance recently. When still in opposition, the Labour Party had insisted – not without good reason – on a revised code which ironed out all the loopholes and inconsistencies in the document it would replace.

This occurred against the backdrop of former finance minister Tonio Fenech being accused of flouting the previous code by accepting gifts from potential tenderers for public contracts. 

More pointedly, in the background there was also the controversy concerning a furtive raise in MPs’ salaries and honoraria, agreed by Cabinet shortly after the 2008 election (and which was met with public outrage when it was revealed much later).

Both issues point in no uncertain terms towards where the previous document needed reinforcing. One of the cardinal issues relevant to a Ministerial Code of Ethics is the limits it places on Cabinet ministers undertaking work in the private sector. The previous code ruled out such engagements altogether.

And with good reason: government takes decisions which effectively regulate the playing field on which the private sector operates. Such decisions cannot be taken by persons who are themselves private sector employees, for reasons which are too obvious to need spelling out.

This in turn creates a dilemma for politicians. Appointment to the Cabinet of Ministers effectively spells out an immediate end to potentially lucrative private sector positions, and a minister’s salary as it stands today is small compensation for this loss. In practice, this means that the more capable and experienced contenders – i.e., the ones who would be offered handsome contracts with the private sector – may not be attracted to the role of minister, where their expertise would serve the national interest.

It was in part to address this problem that the Gonzi administration raised salaries in 2008. This newspaper had argued at the time that the increase was not, in itself, the problem; it was the surreptitious way this was introduced, at a time when ordinary people were being asked to make sacrifices. 

Politically, the honoraria proved crippling to the Gonzi administration for this reason, and almost certainly contributed heavily to its landslide defeat in 2013. But with hindsight, the same issue is now likely to pose credibility problems to Muscat’s administration too.

Having made such capital out of the backlash generated by this public relations nightmare for the PN, Labour is now committed to not raising any form of remuneration offered to MPs or ministers. Now being in government, it is clearly feeling the same pinch that had motivated Gonzi in 2008. Only it has pre-emptively limited its own options by ruling out the same approach.

Its solution to this dilemma has been to revise the Ministerial Code of Ethics, and simply remove the veto on private engagements… or at least, to introduce a glaring loophole whereby such engagements may be permitted ‘if they are in the national interest’. As for the obvious question – who determines what is ‘in the national interest’? – the code entrusts the Prime Minister himself to personally decide in all cases.

This is in many ways much worse than Gonzi’s ill-fated solution in 2008. It does not address the issue of conflicts of interest that will inevitably arise when ministers regulate the areas in which they themselves (or their colleagues) are permitted to work.  And it invests far, far too much arbitrary discretion to a Prime Minister who is theoretically bound by the same code he now has the authority to circumvent at will.

The new code of ethics is a missed opportunity to introduce further transparency and accountability when it comes to the declaration of assets of ministers and their spouses. Declaration of assets should be the equivalent of an income tax return and the law should punish the failure by ministers to declare foreign bank accounts or property portfolios. 

If this government wants to be taken seriously when it speaks of fighting corruption the annual declaration of assets of Cabinet members must be upgraded to reflect the seriousness of the exercise. 

Ministers should be presented with a detailed questionnaire in which all owned bank accounts (complete with full statements) are to be included, along with the specific addresses of any properties listed and a full, detailed list of any other commercial interests and luxury possessions such as yachts and vehicles.

Again, this contradicts Labour’s indignant reaction to the news (inter alia) that former ministers Austin Gatt, Ninu Zammit and Michael Falzon had failed to declare foreign bank accounts to parliament… not to mention its own pre-electoral pledges of greater transparency and accountability.

Above all, the new code introduces an insidious dimension to the definition of ‘ethics’, by suggesting that ‘the national interest’ can be invoked to exonerate Cabinet ministers of the obligation to behave ethically.

This makes a mockery of the entire concept of ethics. By definition, unethical behaviour cannot be deemed to serve ‘the national interest’: especially when it is the government itself that has the power to decide what constitutes ‘the national interest’ in the first place.

It would seem, then, that in order to bypass the problem it created for itself when it ruled out salary increases, the Muscat administration has simply watered down the ministerial code of ethics to render it unworkable in practice.

Is this ‘in the national interest’? One would think not.

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