Nothing inherently wrong with persons of trust, Mario Cutajar tells Standards Commissioner

The government said that engaging persons of trust is not fundamentally wrong and a practice endorsed by many countries across the world.

In its reaction to a report by Standards Commissioner George Hyzler, the government however acknowledged that legislation should define persons-of-trust engagements to further regulate the system.

In a report he published in July, Standards Commissioner George Hyzler wrote that persons engaged on a trust basis gives rise to many concerns as these engagements take place outside the provisions of the country’s constitution.

Government had employed principal permanent secretary Mario Cutajar to write up an analysis on Hyzler’s report, which report was published on Monday.

Cutajar prefaced his analysis of this by saying that “persons engaged on a trust basis do not only exist in our country” and that the European Union itself had been engaging such persons since the 50s.

“In Malta, the engagement of persons of trust is regulated by a specific policy and a manual which clearly specify that the engagement is a temporary one within a Ministry, which engagement ceases once the Minister or Parliamentary Secretary in question finishes his tenure within the said ministry. The rules clearly specify that persons of trust so engaged have their contract renewed yearly, that it cannot be turned into an indefinite contract (the person in question cannot have their position turned into a permanent one), and that they cannot have an executive role,” Cutajar wrote.

Malta’s system of persons-of-trust engagement was no different, he said, to those which operate a Westminster-based model.

Cutajar criticised Hyzler’s vast statements on this issue and said that the Standards Commissioner did not even distinguish in his report between a public official permanently employed with the public service and a person of trust engaged on a temporary basis.

Quoting the Attorney General’s advice, Cutajar wrote that the Contracts of Service for a Fixed Term Regulations specified that engagements within the public service cannot be changed into indefinite employment contracts within the public sector.

“The existing regulations with regard to the temporary engagement of persons on a trust basis within the entire public sector are already administratively strong and very similar to those adopted and operated by other countries which operate the same systems we do, even with respect to the permissible number of such persons who can be engaged on this basis,” Cutajar wrote, adding that other countries, however, have developed legislation to further regulate the system.

No conflict of interest in parliamentary deputies engaged in public sector

Cutajar said that in his analysis, acting on the advice of Attorney General Peter Grech and Law Professor Ian Refalo, no breach of the constitution is being made, no laws are being broken and there is no conflict of interest for parliamentary deputies being engaged temporarily on a trust basis.

In his report, Hyzler had stated that “the practice of employing members of Parliament within the public sector, or appointing them to provide contractual services to the public sector, is fundamentally wrong, whether this is in order to compensate them for their inadequate salary as MPs or for any other reason.”

Cutajar said that the inadequate remuneration for parliamentary deputies is not necessarily the reason for their extra-parliamentary engagements.

“Should better remuneration be considered, this should be implemented irrespective of the arguments in question, with the necessity of such amelioration being the only underpinning rationale,” Cutajar wrote.

He added that Malta’s constitution was not based upon the separation of powers especially because ministers and parliamentary secretaries are also members of parliament, as required by the same constitution.

“Professor Refalo explains that in our Constitution one does not find a clear line which separates the executive from the legislative. It is necessary for both to be constitutionally bound as all the power in the British and Maltese constitutions emanates from the House of Representatives and the government of the day, so much so that members of the executive—ministers and parliamentary secretaries—need to be parliamentary members. Therefore, there is no constitutional incompatibility between members of the executive and parliamentary members, so much so that the Constitution itself requires that a Minister be chosen only from amongst parliamentary members,” Cutajar wrote.

Cutajar also quoted Malta’s small size and its limited resources as the reason behind a lack of stricter separation of powers—“our country is what is is,” he wrote and said that despite hosting less than half a million people, it was still an independent and sovereign country.

“While countries larger than ourselves have the necessary resources to carry out these functions, our country needs to carry out these functions, our country needs to carry out these functions and be on a par with larger countries, despite the limitations resulting from a small population, which does not even amount to half a million. As such, it must make the best use of the available human resources.”

“I would like to express my view that I feel that the Commissioner for Standards in Public Life’s report is disproportionate in the argument which it asserts, namely that remuneration from the government places MPs in a position of financial dependence on the executive and hence reduces their independence,” Cutajar wrote, saying that it was, after all, parliamentary deputies who had just been given government-paid appointments who defied the instructions of their parliamentary group’s whip in the 2008-2013 Gonzi administration.