Positions of public trust : a legal analysis

Abstract

This dissertation seeks to address the practice of appointing persons in positions of trust. This tradition has been resorted to by both political parties, in varying degrees, when in government. As a result, this traditional longstanding practice has permeated into the Maltese ordinary laws enacted by Parliament principally in the Standards in Public Life Act, Chapter 570 of the Laws of Malta. Very recently, there has been the enactment of Act No. XVI of 2021, that is the Appointment (Persons of Trust) Act which amended the definition of ‘person of trust’ of Article 2 in the Standards in Public Life Act. Apart from ordinary laws legislating and defining such conventional notion, the Administrative Policy in the Manual on Resourcing Policies and Procedures lays down the procedure for engaging Secretariat Staff and Policy Consultants in the Prime Minister’s, Ministers’ or Parliamentary Secretaries’ Secretariat. Additionally, the Administrative Policy grants to the Prime Minister, Ministers and Parliamentary Secretaries the authority to engage Advisers in their respective Secretariats. Nevertheless, the core concern of this legal hypothesis is whether the Constitution, which is silent on the regulation of the so-called positions of trust, actually allows for the appointment of positions of trust without adhering to the principle of meritocracy and transparency enshrined in the suprema lex itself. The qualitative research delves into the indispensable principles of supremacy of the Maltese Constitution and of meritocracy in the Maltese public administration. Consequentially, after an extensive legal analysis addressing such issue, the author argues that in reality, in order to ensure the legitimacy of the practice of appointment in positions of trust, there should be an amendment in the Constitution by Parliament acting within the parameters of the suprema lex.