Other things have happened since, so the small controversy after the Commissioner for Standards in Public Life’s decision not to investigate Arnold Cassola’s complaint about Kurt Farrugia’s and Paul Zahra’s failure to cooperate with the Auditor General has largely been forgotten already. But I was on holiday so bear with me while I catch up.
Let’s take the obvious out of the way.
Firstly, the Auditor General’s investigation into the hospitals swindle was necessary if we are to learn any lessons from the scandals. When the public’s money is misspent, there are many things that should happen. Those responsible should be sought out and punished. The money that went in the wrong pockets should be recovered. Any rules that may avoid repetition should be drawn up. And the wrongdoing should be carefully documented, which is what the Auditor General’s job is about.
Secondly, all officials on the state’s payroll should cooperate fully with any investigation by the Auditor General. The Auditor cannot be expected to know everything. They must be helped to discover it. This does not prejudice anyone’s right to avoid incriminating themselves but then any official who refuses to cooperate with an investigation for fear of incriminating themselves should be immediately suspended as they forfeit the presumption of their employer (the state) that they did no wrong.
With those two premises in mind, questions asked by the Auditor General to Malta Enterprise and the State Aid Monitoring Board – two state agencies – ought to have been answered.
From the State Aid Monitoring Board, the Auditor wanted to determine whether Konrad Mizzi sought the Board’s approval for the guarantees he signed off to Steward, and if he did, whether they allowed it. It’s a perfectly fair question. The direct subsidisation by the state of a private enterprise, or its subsidisation made implicit by government-guarantees, is an unlawful market intervention, forbidden unless specifically permitted within very specific circumstances and after due process of examination. The proper application of state aid rules would nearly certainly have stopped the ridiculous concessions given to Steward such as the commitment to pay them €100 million if the contract with them ends prematurely for whatever reason.
From Malta Enterprise the Auditor General needed to know more. Malta Enterprise was effectively the landlord in this deal. It was the entity signing the paperwork and committing the government to the use of the land, particularly on the site of the Gozo Hospital. The auditor general asked Malta Enterprise for information repeatedly and repeatedly he was ignored.
Arnold Cassola referred to the Commissioner for Standards in Public Life the two men who run the two agencies: Paul Zahra of the State Aid Monitoring Board and Kurt Farrugia of Malta Enterprise.
The request to have them investigated was rejected.
I’m going to take Judge Joe Azzopardi’s side on this one. There was some confusion in reaction because the over-simplified justification for not investigating the two was that they weren’t “politically exposed persons”. People rushed to look for definitions of PEPs and certainly as chiefs of state agencies with the authority to take decisions about public spending they are, in the ordinary sense of the word, PEPs. If they went to the bank with an extraordinary deposit, they’d have to be taken through the rigmarole to explain where they got it from to make sure it isn’t a bribe.
The Commissioner for Standards in Public Life does not have the competence to investigate anyone who satisfies a bank’s definition of a PEP. He can only investigate the short list of people the law allows him to (basically parliamentarians and their closest staff). He has no choice in the matter however much he may desire, unlikely as that they be, to widen the scope of his activities.
In this case our problem is not a Standards Commissioner who is unwilling to investigate. The issue here is that we have senior civil servants who have refused to be scrutinised by a constitutional watchdog and, apparently, they could do that without consequence.
Unlike Paul Zahra, Kurt Farrugia is not a career civil servant. He is as political an appointee as can be. He was Joseph Muscat’s press secretary. Probably, informally, he still is. He has a personal stake in Joseph Muscat’s reputation and still has access to office which he can abuse to protect Joseph Muscat from the consequences of investigations into his misconduct as prime minister. He can still obstruct justice the way Joseph Muscat did when he still had an official address.
I have no idea why Paul Zahra, a career civil servant with no discernible partisan motivation, would refuse to cooperate with an audit by the NAO. I’d love to know and, in a place where there is some measure of reasonable oversight, he would be asked in some public forum such as the Public Accounts Committee to explain himself. He may yet be.
In the case of Kurt Farrugia, I am happy to speculate about his motives for frustrating an investigation. In his case we must do more than suspect a failure to cooperate. Given his proximity to Joseph Muscat it would be prudent to expect he would cover-up for his former boss.
The real problem is then not that Joe Azzopardi would not investigate. The real problem – the real ethical failure here – is that Robert Abela retains Kurt Farrugia at Malta Enterprise from where he can undermine the government to protect Joseph Muscat.
This is no criticism of that assiduous paladin Arnold Cassola. But the failure of a public officer to cooperate with the Auditor General (a constitutional position) need not be investigated again by the Standards Commissioner (created by ordinary law), even if this was within the Commissioner’s remit, which it isn’t.
The Auditor General has already established and reported that Malta Enterprise, i.e., Kurt Farrugia, sought to frustrate his investigation. The Auditor General also complains about the Standards Board, but his emphasis, because of the magnitude of the consequences of the information he required from them is clearly on Malta Enterprise.
Their failure is documented and established so now we do not pass on to more investigations. The proper next stage is consequence. The line ministers responsible for the two agencies need to act. If they don’t, the prime minister must act.
If he doesn’t, we’re reminded what the biggest problem we have is. It’s not weak and compliant men unworthy of the institutions they are appointed to run. That’s a problem no doubt, but we have a bigger one. We have a government that ignores the few women and men in constitutional positions who do their job and challenge the government. The government will ignore them, and the public seems not to care.