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Amongst its electoral proposals, the Partit Laburista included the creation of two Commissioners: a Commissioner for Animal Welfare and a Bureaucracy Commissioner.

 

The Commissioner for Animal Welfare’s ‘remit will include investigating abuses, ensuring conformity with the law, embarking on educational campaigns for the protection of animals as well as proposing measures to ensure that our country becomes more animal-friendly’ (http://election.josephmuscat.com/a-new-government-will-appoint-a-commissioner-for-animal-welfare/ ).

On the other hand, the Bureaucracy Commissioner’ s ‘remit would be to examine and review all the bureaucratic processes. All existing commercial legislation should also be reviewed so that outdated laws could be abrogated, in particular those laws that constitute a burden on commercial activities.’ (http://election.josephmuscat.com/curbing-bureaucracy-to-stimulate-initiatives/). This Bureaucracy Commissioner will even review complaints (http://www.independent.com.mt/mobile/2013-01-15/news/labour-unveils-proposals-to-reduce-bureaucracy-for-business-692092928/ ).

Animal welfare and reduction of bureaucracy are both noble causes. We already have laws on animal welfare, but there undoubtedly always exists room for improvement. Seeking to eliminate excess bureaucracy leads to more efficiency, so too should be pursued. My question is whether the creation of commissioners to meet these aims, is the best way forward.

Three categories of Commissioners in Malta

In Malta, one finds a number of so-called Commissioners. These can be broadly divided into three categories:

i. heads of departments subject to ministerial control, designated as ‘commissioners’, namely the Commissioner of Police who heads the Police Force, the Commissioner for Inland Revenue who heads the Inland Revenue Department and the Commissioner for VAT who heads the VAT Department;

ii. members of certain commissions, such as the Electoral Commission, which is composed of a Chief Electoral Commissioner and eight other Commissioners. The General Elections Act (Chapter 354 of the Laws of Malta) specifically refers to the members of the Electoral Commission as ‘Commissioners’. These ‘Commissioners’ are not subject to ministerial control (Public Administration Act, Chapter 497 of the Laws of Malta, Second Schedule). Not all members of ‘commissions’ are designated as such; for example the Public Service Commission is composed of a Chairman and a number of members and are never referred to as ‘commissioners’;

iii. defenders of rights, such as the Commissioner for Children, the Commissioner for Mental Health, and the three Commissioners for Administrative Investigations (more commonly known as the Parliamentary Ombudsman, the Commissioner for Public Health and the Commissioner for Environment & Planning), the Data Protection & Information Commissioner and the Equality Commissioner.

The Commissioners in the first category are administrators, heading and administering their respective government departments. On the other hand, the commissioners in the second category have a different role to play, overseeing the electoral processes in Malta. They have more powers, including the powers ‘conferred by law on the Courts of Magistrates for the purpose of enforcing order at their sittings and ensuring the respect due to them’ (General Elections Act, article 9, sub-article 2). Their role is similar to those in the first category, because all of them oversee a particular process: the Commissioner for Inland Revenue oversees and is responsible for the process of tax collection, while the Electoral Commissioners oversee and control the processes of elections in Malta. On the other hand, the Electoral Commissioners enjoy more independence in their operations than the commissioners in the first category outlined above, and perhaps also enjoy more status, since they oversee a process emerging from the Constitution. The third category of Commissioners are completely different, because they are not administrators and do not oversee any process of government. Their role is to promote particular rights (for example the Commissioner for Children promotes the rights of children), and very often enjoy powers of review too (for example the Parliamentary Ombudsman will review allegations of bad administration).


Where do the two proposed commissioners fit into the current scenario?

The proposed Commissioner for Animal Welfare would clearly fit into the third category. I can easily envisage a Commissioner, set up on lines similar to the Commissioner for Children, striving to protect animals' rights. While the Commissioner for Children promotes the rights of children, for example through talks and educational campaigns, the Commissioner for Animal Welfare would create campaigns to teach people to take proper care of their pets, would visit farms to inspect the conditions in which animals are kept, and so on.

On the other hand, the envisaged Bureaucracy Commissioner will not be a head of a department. From what sketchy details have been made public so far, it seems that he will be able to investigate complaints. This however does not necessarily make him a defender of rights. Complaints will serve as feedback from the general public, and will help him gauge the trouble spots, but it is not yet clear whether this person will actually investigate such complaints and provide a remedy, Ombudsman style. This Bureaucracy Commissioner’s job seems more akin to an auditor, who will analyze bureaucratic processes, understand what the aims behind these processes are, and see whether the same processes can be reduced without disturbing the aims for which they were set up. His job will include listening to the administration i.e. to the bureaucrats themselves, and to the clients, the end users. He will then make recommendations on how to bring about an effective reduction in the ‘red tape’ which everybody loves to hate. When he investigates a complaint, it is not clear what form of remedy he can recommend, if any at all. I very much doubt whether he will be able to simply cut red tape and allow the complainant through! It is more likely that he will be able to recommend changes of a general nature, which will lead to improvements of general nature. This was the case with the internal auditor which the Planning Authority had back in the 1990s.  On the question of categorisation, since he will seek to promote efficiency, and not to defend rights, I do not consider him to fit into the third category.

A proposed solution

Since I see no problem with creating a Commissioner for Animal Welfare, I will continue to focus on the so called Bureaucracy Commissioner. The fact that the envisaged Bureaucracy Commissioner does not fit into the existing categories, does not in any way affect the question of whether or not there is a need for such an entity. It does however lead me to believe that the term ‘Bureaucracy Commissioner’ can either be regarded as a new, fourth category in his own right, or may be considered to be something of a misnomer. I am not in favour of creating a new, fourth category: three are enough. Another name for this institution and for the person who heads it are called for. We are dealing with an institution  which the Government plans to create, to carry out a particular task. I can imagine the Office of the Prime Minister creating a branch to deal with such matters, calling it ‘Organisation for the Reduction of Bureaucracy’ (ORB), reporting to the Prime Minister, headed by a director, simply known as ‘Head, ORB’. This Office would be vested with the necessary powers and resources it requires to carry out its role effectively. It should then be answerable, presumably to the Prime Minister through the Principal Permanent Secretary, who could then either endorse or reject proposed changes to the bureaucratic processes. If the Prime Minister endorses the changes, steps will be taken for the changes to be implemented.  This is not a ‘Category 3’ commissioner and indeed need not be. A ‘Category 3’ Commissioner is a ‘stand alone’ entity, who should enjoy security of tenure and a high degree of independence in his operations. Without this independence, the Category 3 Commissioner cannot operate effectively. Unlike the envisaged Commissioner for Animal Welfare, the office or institution to be created to analyze bureaucratic processes and strive to reduce what is unnecessary, does not require such  attributes.

Alternatively, the Government may simply set up a board of inquiry under the Inquiries Act (Chapter 273 of the Laws of Malta). According to article 3 of this law, a board may be appointed or authorised to carry out an inquiry or inquiries into

'(a) the conduct of public officers, or of officers or servants of a statutory body, or of anyone or more of such public officers or officers or servants;
(b) the conduct or management of any department of Government or of any statutory body;
(c) any matter falling within the functions or responsibility of any such department or body, or otherwise concerning or affecting a service of the Government...’

In my opinion, the ORB route is preferable, because one has a permanent institution operating from a specific premises with a specific mandate, presumably on a full time basis: a board set up under the Inquiries Act would be composed of part-timers, who will give the matter less than their full attention, and will merely end up spending years to compile a report on what they think can be done to curb bureaucracy. It is better to have an office, under the wing of the Prime Minister, with the necessary resources to operate effectively, devoted solely to studying all bureaucratic processes and making suggestions on how to shorten them, and – importantly – ensuring that new unnecessary bureaucracy does not sprout up like weeds in a garden after the rain!

What is certain to mind is that, while I favour the Partit Laburista’s initiative, I am not in favour of creating a ‘Commissioner’ for this purpose.

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