The untouchables

There is a lacuna that must be addressed with urgency: public servants, and chairpersons/officials of public entities and national agencies such as the MFSA, should be made accountable to the people’s representatives

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

This week, government backbencher and chair of the economic and financial affairs parliamentary committee, Silvio Schembri, claimed that he does not have the authority to probe allegations made against MFSA chairman Joe Bannister. 

Schembri was responding to a call by independent MP Marlene Farrugia to summon both Bannister and Education Minister Bartolo before the committee, following repeated calls by Bartolo for the removal of the MFSA chairman over his offshore interests.

Schembri said that the committee had no power to probe or summon such individuals, since its remit was limited to discussing reports on economic matters.

“In this day and age Parliament should not be subjected to ultimatums… Parliament is not a boċċi club and matters like this should not be reduced to making requests on Facebook,” he said.

The only person at law the committee is allowed to summon is the Central Bank governor; and even then, only to report on the European Stability Mechanism.

Technically, Schembri may well have a valid point concerning the limitations of the economic and financial affairs parliamentary committee. But this in turn only illustrates the glaring lack of any proper checks and balances within the present parliamentary system.

It also exposes a certain inconsistency in approach between different sectors. Unlike the economic affairs committee, for instance, the Public Affairs Committee does have such powers: even if these are limited to “examine the accounts of statutory authorities, including parastatal organisations, whose accounts are presented to Parliament”, and reports compiled by the National Audit Office. 

However, as attested by the BWSC and oil scandal probes, the committee is toothless in practice. The implication, then, is that there is no authority or institution in the country with the power to investigate even a public office such as the Malta Financial Services authority. 

This would be worrying at the best of times; at times when the financial services sector is itself are under fire internationally, and serious allegations are levelled against its chairman by an incumbent Cabinet minister, it is little short of astonishing.

To be fair, there are other entities outside parliament which would, under ordinary circumstances, be expected to come into play. In the absence of a national prosecution office, the responsibility to investigate such matters lands squarely and solely on the doorstep of the Malta Police Force.

Again, however, this marks an area where ‘theory’ and ‘practice’ quickly part company. The police may be empowered at law to investigate such allegations; but with the force clearly under the direct influence of politicians, this rarely (if ever) happens.

In this regard, Malta stands in stark contrast to other western democracies insofar as the country’s power structures are concerned. In most developed countries, legislative investigative powers are primarily exercised to provide a check on the executive. But there are exceptions. The US Congress, for instance, has exercised broad investigative powers since 1792, starting with an investigation into a military disaster in which 1,500 were slaughtered by Native Americans.

This power is usually delegated to committees, and investigations are conducted to gather information on the need for future legislation, to test the effectiveness of laws already passed, to inquire into the qualifications and performance of members and officials of the other branches… and on rare occasions, to lay the groundwork for impeachment proceedings. 

Frequently, committees call on outside experts to assist in conducting investigative hearings and to make detailed studies of issues.

There are important corollaries to the investigative power wielded by Congress. One is the power to publicise investigations and their results. Most committee hearings are open to the public and are widely reported in the mass media.

Congressional investigations represent one important tool available to US lawmakers to inform the citizenry and arouse public interest in national issues. Congressional committees also have the power to compel testimony from unwilling witnesses, and to cite for contempt of Congress witnesses who refuse to testify and for perjury those who give false testimony.

This power has not always been exercised in the best interests of justice and democracy; in the 1950s, for instance, it was misused to silence and even imprison people suspected of Communist sympathies.

But it would be unwise to judge a system only by its misuse. Given Schembri’s admission that the Maltese parliament lacks any corresponding powers of any kind, similar legislation would not only give purpose to the Maltese House of representatives, but it would also add another layer of scrutiny to Maltese democracy as a whole.

This should not replace the police or the judiciary; on the contrary, it would complement both services.

Until such legislation is enacted, however, we must contend with the inauspicious fact that certain offices and entities – even those entrusted with considerable power, such as the MFSA – remain outside and beyond the reach of Maltese law. Technically, they are ‘untouchable’.

This is clearly a lacuna that must be addressed with urgency. Public servants, and chairpersons/officials of public entities and national agencies such as the MFSA, should be made accountable to the people’s representatives. So even if Schembri is correct in his assessment, his response to Farrugia’s legitimate request remains highly unsatisfactory in any modern EU member state.

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