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Maltese Laws |
1. Short title and commencement.
2. Interpretation.
3. Principle of accountability.
4. Public administration values.
5. Code of Ethics.
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6. Ministers and Ministers’ secretariats.
7. Ministries.
8. Departments.
9. Senior Appointments Advisory Committee.
10. Titles of headship positions and other public offices, and equivalent titles at law.
11. Exercise of powers during a public officer’s absence.
12. Secretariats of boards and commissions.
13. The Principal Permanent Secretary.
14. Appointment of Principal Permanent Secretary.
15. Directives and guidelines issued by the Principal Permanent Secretary in relation to departments of Government.
16. Committee of Permanent Secretaries.
17. Supervision of departments by Permanent Secretaries.
18. Duties of heads of department.
19. Senior Executive Service.
20. Public officers’ assignment to and transfer between posts.
21. Merit principle.
22. Powers of heads of department in relation to employees.
23. Power to create, abolish and classify positions.
24. Appointments to positions.
25. Filling of positions by lateral appointment.
26. Removal from positions.
27. Grades.
28. Surplus Pool.
29. Applicability of certain provisions in terms of the Constitution.
30. Extension to the public service of powers assigned to the Merit Protection
Commission.
31. Recommendation on victimisation.
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32. Public Service Commission to act as Merit Protection Commission.
33. Functions of the Commission.
34. Powers of investigation and remedy.
35. Application of this Title.
36. Establishment of agencies.
37. Legal personality and judicial representation of agencies.
38. Directives and guidelines issued by the Principal Permanent Secretary in relation to agencies.
39. General direction and control of agencies by Ministers and supervision by
Permanent Secretaries.
40. Agency performance agreements.
41. Accounts, audit and other financial arrangements.
42. Advisory boards.
43. Detailing of public officers with an agency.
44. Pension rights and other arrangements.
45. Application of this Title.
46. Application of certain articles of this Act and of other laws.
47. Supervision of government entities by Permanent Secretaries.
48. Supervision of boards and commissions.
PART IV MISCELLANEOUS
49. Power to make regulations.
50. Amendment to article 181B of the Code of Organisation and Civil Procedure.
51. Amendment to the Interpretation Act.
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I assent.
(L.S.) EDWARD FENECH ADAMI
President
3rd February , 2009
ACT No. I of 2009
AN ACT to affirm the values of public administration as an instrument for the common good, to provide for the application of those values throughout the public sector, and to provide for the organisation and management thereof.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives in this present Parliament assembled, and by the authority of the same, as follows:—
Act, 2009.
(2) This Act shall come into force on such a date as the Prime Minister may by notice in the Gazette establish, and different dates
may be so established for different provisions or different purposes of this Act:
Provided that articles 21 to 26 inclusive, 28 and 31 to 34 inclusive may only be brought into force after the necessary instruments
of delegation have been issued in terms of article 110 of the Constitution.
“Code of Ethics” means the code of ethics in the First
Schedule;
Short title and commencement.
Interpretation.
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“department of Government” or “department” means any entity in the Public Service that is listed in the Second Schedule;
“Disciplinary Regulations” means the Disciplinary Procedure in the Public Service Commission Regulations or any other regulations
on disciplinary matters substituting them and which may be made under subarticle (1) of article 121 of the Constitution;
“government agency” or “agency” means a body listed in the
Fourth Schedule;
“government entity” means an organisation, not being a government department, a government agency or a commercial partnership,
in which Government has a controlling interest, whether or not such organisation is established by law;
“grade” means any of the grades listed in the Third Schedule, and consists of a group of one or more posts in one or more departments
which bear a common designation and are filled directly through an appointment to the grade;
“Minister” means, unless the context otherwise requires, the Minister responsible for the public administration so however that
where the Prime Minister has delegated, wholly or in part, any of the powers, functions or authorities assigned to him by this Act,
the Prime Minister may still exercise such powers, functions or authorities collaterally with such Minister;
“ministry” means an organisation referred to in article 6; “position” means any office in the public service, other than
a grade;
“post” means a particular set of tasks or duties which are performed or intended to be performed by one person;
“Principal Permanent Secretary” means the person appointed in terms of article 14;
“public administration” means the Government of Malta including its ministries and departments, and the agencies, government entities,
commissions and boards referred to in this Act;
“public administration values” means the values listed in article 4;
“public employee” includes public officers and employees of government agencies and government entities, and for the purpose of
section B, section C and paragraph 27 of the Code of Ethics a person shall continue to be regarded as a public employee for three
years following his retirement, resignation or dismissal from public employment;
“public office” has the same meaning assigned to it by article
124 of the Constitution and shall also, for the purposes of this Act, be understood to mean any grade or position in the public service
except those listed in paragraph (a) of subarticle (2);
“public officer” has the same meaning assigned to it by article
124 of the Constitution, but shall for the purposes of this Act be understood in accordance with subarticle (2);
“public service” has the same meaning assigned to it by the Constitution, but shall for the purposes of this Act be understood
in accordance with subarticle (2);
“Public Service Commission” means the Commission established by article 109 of the Constitution;
“Senior Executive Service” means the body of senior public officers to which article 19 refers;
“transfer” means to assign a public officer to a different post. (2) This Act shall not apply to:
(a) The offices of judge, magistrate, Attorney General and
Auditor General; and
(b) the offices of Speaker, Deputy Speaker, Ombudsman and Data Protection Commissioner; and
(c) the Broadcasting Authority, the Electoral Commission, the Employment Commission, and (in so far as this Act does not specifically
refer to it) the Public Service Commission:
Provided that, without prejudice to the independence of the Electoral Commission and the Public Service Commission under the Constitution,
this Act shall apply to the Electoral Office and the Public Service Commission Secretariat.
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Principle of accountability.
Public administration values.
(3) Unless otherwise specified to the contrary in this Act, where a provision of this Act conflicts with the provisions of any other law governing a department, an agency or a government entity, the other law shall prevail.
(a) be governed by the provisions of this Act, including the public administration values and the Code of Ethics;
(b) be subject to Ministerial direction as provided for in the Constitution and in this Act and other laws, except on matters in
respect of which they are expressly required by law to act independently or under the direction of a person or authority other than
a Minister;
(c) be accountable under this Act and other laws for the manner in which they provide services, carry out their functions and manage
their resources, for their observance of the public administration values and the Code of Ethics, and for their observance of the
Ministerial directions referred to in paragraph (b).
(a) exercise any powers vested in them by law, and deliver services to the public, courteously, expeditiously and impartially;
(b) provide objective and knowledgeable advice on matters within their competence;
(c) efficiently and effectively implement the policies of the government of the day;
(d) contribute towards the co-ordination of Government policy in conjunction with departments, agencies, government entities and
Local Councils; and
(e) contribute through their own conduct to making their workplace one which recognises talent, develops skills and abilities,
rewards performance, avoids discrimination and offers safety.
(2) Public employees shall uphold and promote the public service values, and a failure to do so on the part of any public employee
may constitute grounds for disciplinary proceedings against that employee under applicable rules and procedures.
(3) The Principal Permanent Secretary may issue directives and guidelines aimed at upholding and better realising the public service
values, and public employees shall comply with such directives.
(2) The Prime Minister may from time to time, by Order in the Gazette, amend or substitute the First Schedule.
(3) It shall be the duty of all public employees to comply with the Code of Ethics, and failure to do so on the part of any public
employee may constitute grounds for disciplinary proceedings against that employee under applicable rules and procedures.
(4) The Principal Permanent Secretary may issue directives and guidelines aimed at upholding and ensuring compliance with the Code
of Ethics and, with the concurrence of the Minister responsible for the particular board or commission, he may also issue such guidelines
with respect to boards and commissions.
(5) The head of a department, agency or government entity may, with the approval of the Principal Permanent Secretary, make rules
of ethical conduct, complementary and in addition to the Code of Ethics, relating to the circumstances particular to that organisation,
and the term Code of Ethics in relation to public employees in that organisation shall include such rules.
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Code of Ethics.
Ministers and Ministers’ secretariats.
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Ministries.
any matter, except matters where the head of department, Chief Executive Officer, Board of Directors or other employee is required
by any law to act—
(a) independently; or
(b) in accordance with the direction of a person or authority other than the Minister:
Provided that where a Permanent Secretary has been appointed to supervise the relative department, agency or government entity the
Minister shall inform the Permanent Secretary that he has given such directions.
(2) A Minister may be assigned responsibility for any department, agency or government entity including those listed in Part II
of the Second Schedule.
(3) The staff assigned to the secretariat of a Minister, including advisors or consultants to the Minister, shall be deemed to
be occupying positions of special trust and shall, even if they are public officers assigned on transfer, be appointed thereto on
the basis of a definite contract:
Provided that on the expiration or termination of the contract, the directives and guidelines mentioned in subarticle (4) shall apply.
(4) The Prime Minister may issue directives and guidelines concerning the functions, administration and establishment of Ministers’
secretariats, the engagement of staff thereto, and the terms and conditions under which such staff shall serve.
(5) Save as may otherwise be provided for by the Prime Minister ’s directives, a Minister ’s secretariat shall be under the
supervision of a member of staff designated as Head of Secretariat who shall report to the Minister.
(6) The provisions of subarticles (3), (4) and (5) of this article shall apply mutatis mutandis to the secretariat of a Parliamentary Secretary.
(a) the Minister’s secretariat;
(b) the secretariats of such Parliamentary Secretaries as may be appointed to assist the Minister;
(c) the office of the Permanent Secretary; and
(d) such other divisions, directorates, sections, offices or other units within the public service as may be placed or established
within the Ministry by the Prime Minister.
(2) Where more than one Permanent Secretary reports to the same Minister (other than temporarily due to arrangements made under
articles 83 or 84 of the Constitution), the scope of responsibilities of each Permanent Secretary shall be delineated by the Prime
Minister.
Second Schedule.
(2) The functions of departments shall be in accordance with the indicative summaries shown against the respective departments in
the Second Schedule.
(3) The Prime Minister may, by Order in the Gazette, amend the Second Schedule to:
(a) establish a new department;
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Departments.
and
(b) abolish a department or change its name or function;
(c) change the titles of heads of department and other officers as provided for in article 10.
(4) Departments which, by virtue of any applicable laws or special administrative arrangements, are not subject to the direction
and control of a Minister in the performance of their main functions shall be listed in Part II of the Second Schedule, but the applicability
of any such law to such a department shall not depend on its listing in the Schedule.
Committee, hereinafter referred to as the Committee, that shall:
Senior Appointments Advisory Committee.
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Titles of headship positions and other public offices, and equivalent titles at law.
(a) consult the relevant Minister about the duties attached to and the results expected from any headship position that is vacant
or expected to become vacant;
(b) identify candidates for the position in accordance with subarticle (2) of article 21 hereof, within the parameters set by the
Constitution; and
(c) give due account about the candidates and propose for the Prime Minister’s consideration the candidate who in its opinion
is best suited on the basis of merit to fill the position.
(2) The Committee shall be chaired ex officio by the
Principal Permanent Secretary and shall consist of:
(a) at least two other members, one of whom shall not be a public officer, who shall be appointed by the Prime Minister; and
(b) any additional members co-opted by the Prime Minister for the purpose of considering applicants for specific headship positions.
(3) The Committee shall call upon the advice and assistance of Permanent Secretaries in screening or short-listing candidates but
shall otherwise regulate its own procedure.
(4) No person may be appointed to a headship position to which subarticle (4) of article 92 of the Constitution applies unless:
(a) that person is eligible therefore by virtue of the grade which he holds; or
(b) that person has served for six consecutive years in one or more positions in the Senior Executive Service.
Provided that the re-designation of a position while it is occupied shall not be taken as a re-appointment of the incumbent or a change
to the terms of his appointment.
(2) The assignment by the Prime Minister of similar position titles to different headship positions shall not mean that such positions
should necessarily attract the same status and terms and conditions.
(3) Where, in accordance with the provisions of this Act, a headship position, or any other office in the public service, that
has been established or is assigned functions by another Act—
(a) is assigned a new title; or
(b) is merged with another public office as a result of organisational restructuring;
the title assigned to the office by the other Act (hereafter in this article referred to as the “equivalent title at law”) shall
be listed in the Second Schedule along with the new title of the office or the office with which it has been merged in terms of paragraph
(a) or (b) as the case may be, and subarticles (4) and (5) shall apply.
(4) Where any office in the public service is listed in the
Second Schedule along with an equivalent title at law—
(a) the powers assigned to the office under its equivalent title at law shall vest in the holder of the office as currently titled;
and
(b) both titles shall be regarded as interchangeable for the purpose of any law and a reference to one title in place of another
shall not invalidate any act or any legal proceedings.
(5) Where any law –
(a) assigns, or permits the assignment of, functions to staff acting on behalf of the holder of a public office; and
(b) that office is listed in the Second Schedule as the equivalent title at law of a second office;
such functions may be performed by staff in the department to which the second office belongs, notwithstanding anything to the contrary
in the said law; but any conditions or requirements attached by the law to the performance of such functions shall otherwise continue
to apply.
(6) If a public office has more than one equivalent title at law, subarticles (4) and (5) shall apply in respect of each such title.
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Exercise of powers during a public officer’s absence.
Secretariats of boards and commissions.
The Principal Permanent Secretary.
(2) The secretariat of the board shall be under the direction of an officer, hereinafter referred to in this article as “the
designated officer”, who shall follow the directions of the head of department within which the board secretariat operates on the
matters mentioned in subarticle (1).
(3) A head of department shall not give directions to the board or the designated officer on matters in respect of which the board
is required by law to function independently.
(4) In this article “board” includes any commission, council, panel, committee or other similar body, not being a body established
by the Constitution, but does not include any ad hoc board set up for the purpose of inquiring into the conduct of any public employee or the operations of any department, agency, entity
or such other similar body.
Title 2 – Leadership
(2) The Principal Permanent Secretary shall take instructions from the Prime Minister.
(3) The Principal Permanent Secretary may, with the concurrence of the Prime Minister, delegate any of his functions under this
article to one or more Permanent Secretaries or heads of department.
(4) The Principal Permanent Secretary shall:
(a) provide leadership to the public service;
(b) uphold and promote the public administration values and the Code of Ethics, and monitor the compliance of public employees
therewith;
(c) take measures to improve the performance of the public service;
(d) assume overall responsibility for human resource management and development within the public service;
(e) take measures to ensure coordination between departments, agencies, government entities and Local Councils and to ensure that
agencies and government entities are complying with the key policy objectives and management priorities of the Government;
(f) provide leadership and direction to Permanent
Secretaries;
(g) set performance targets for Permanent Secretaries and monitor their performance following consultation with the relative Minister;
(h) advise the Prime Minister on matters relating to the public service and the wider public sector, including the appointment
and termination of appointment of Permanent Secretaries and heads of department; and
(i) perform any other function that may be assigned to him by or under any law.
(5) The Principal Permanent Secretary shall assume the headship and supervisory functions of a Permanent Secretary in relation
to the Office of the Prime Minister and the departments, agencies and government entities under the Prime Minister’s responsibility:
Provided that one or more additional Permanent Secretaries may be appointed to assist the Principal Permanent Secretary in accordance
with such arrangements as the Prime Minister may make under subarticle (2) of article 7.
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Appointment of Principal Permanent Secretary.
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Directives and guidelines issued by the Principal Permanent
Secretary in relation to departments of Government.
Committee of Permanent Secretaries.
(2) Where the Principal Permanent Secretary is not appointed for any reason whatsoever, the Secretary to the Cabinet shall assume the functions of Principal Permanent Secretary until such time as a Principal Permanent Secretary is appointed.
(2) Public officers shall comply with all applicable directives issued by the Principal Permanent Secretary, and officers who fail
to comply shall be liable to proceedings under the Disciplinary Regulations.
(3) Directives issued by the Principal Permanent Secretary may incorporate guidelines to assist public officers in correctly applying
and observing the directives, and public officers shall accordingly have regard to such guidelines.
(4) Directives and guidelines issued by the Principal Permanent Secretary may apply for a definite or an indefinite period and
to any or all departments and public officers, according to the nature of the provisions contained therein or as specified by the
Principal Permanent Secretary.
(5) The Principal Permanent Secretary may codify standing directives and guidelines, together with any amendments that he may make
thereto from time to time, in the form of the Public Service Management Code or other manuals on specific matters which he may issue
for this purpose.
(6) The Prime Minister may give directions to the Principal Permanent Secretary concerning the issue, amendment or revocation of
any directives and guidelines.
(2) The Permanent Secretaries shall fulfil their collegiate responsibility for the performance of the public service, facilitate
the realisation of Government policies and ensure the achievement of
Government objectives that cut across ministries through the Committee of Permanent Secretaries.
(3) The meetings of the Committee of Permanent Secretaries shall be convened by the Principal Permanent Secretary as often as he
may deem necessary but at least once every three months.
(4) This article shall apply without prejudice to the individual responsibility of Permanent Secretaries to their Ministers, and
to the Prime Minister through the Principal Permanent Secretary, for the achievement of Government objectives.
(a) working towards the timely and effective fulfilment, in conjunction with other government organisations as appropriate, of
his Minister’s and the Government’s policy objectives;
(b) being managed according to law, the public service values, the Code of Ethics, and applicable policies and directives governing
staff conduct, management and the use of resources; and
(c) operating economically, efficiently and effectively and delivering any services to the public to a satisfactory standard.
(2) A Permanent Secretary shall advise his Minister on all matters pertaining to the departments under his supervision.
(3) A Permanent Secretary may give directions to and set targets for a head of department on any matter in fulfilment of his duties
under subarticle (1), and he shall monitor and assess the head of department’s performance in relation to such directions and targets:
Provided that a Permanent Secretary may not give directions to or set targets for a head of department on matters where the head is
required by any law to act independently or in accordance with the direction of a person or authority other than a Minister.
(4) A Permanent Secretary may, with the concurrence of the Prime Minister, exercise his powers of supervision of a department of
government through another public officer of suitable seniority.
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Supervision of departments by Permanent Secretaries.
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Duties of heads of department.
(5) A Permanent Secretary shall be answerable to his Minister and, through the Principal Permanent Secretary, to the Prime Minister
for the performance of the departments under his supervision notwithstanding any arrangements that may be in effect under subarticle
(4).
(6) Where a Permanent Secretary is charged with the supervision of one or more of the departments listed in Part II of the Second
Schedule, this article shall apply subject to the following limitations:
(a) paragraph (a) of subarticle (1) and subarticle (2) shall not apply; and
(b) subarticle (5) shall apply only as may be compatible with paragraph (a) of this subarticle.
(a) to manage the activities and programmes of the department efficiently, effectively and economically;
(b) to ensure that the department achieves a satisfactory standard in the delivery of any services to the public and the business
community with the least possible bureaucratic processes;
(c) to tender advice to the relative Minister through the Permanent Secretary and to other authorities as appropriate on matters
within the department’s competence;
(d) to establish performance indicators covering the programmes and activities of the department, and to set performance targets
for public officers serving in the department; and
(e) to coordinate the activities of the department with those of other government organisations in the best interests of efficiency,
effectiveness and service quality.
(2) The head of a department that is listed in Part I of the Second Schedule shall answer to his Minister through the Permanent
Secretary and shall discharge his duties under subarticle (1) in accordance with their lawful directions.
(3) The head of a department that is listed in Part II of the Second Schedule shall discharge his duties under subarticle (1) in
accordance with the laws governing his department and any special administrative arrangements that may apply thereto.
(a) Permanent Secretaries;
(b) heads of the departments listed in the Second Schedule; (c) senior public officers within each ministry who have
been charged with primary responsibility for any of the following
or similar functions:
(i) the management of corporate services; (ii) policy development;
(iii) the application of indicators of efficiency;
(iv) the co-ordination of European Union affairs; and
(v) information management; and
(d) the holders of such other senior public offices as the
Prime Minister may designate for this purpose.
(2) Officers in a ministry or department who are members of the Senior Executive Service shall constitute the senior management
team of that ministry or department, and in relation thereto they shall, without prejudice to the authority of the head of the department
or ministry, be collectively responsible for:
(a) promoting and upholding the public administration values, the Code of Ethics, and applicable policies and directives governing
staff conduct, management and the use of resources;
(b) achieving satisfactory levels of efficiency and quality in the delivery of any public services; and
(c) achieving Government objectives, in coordination as necessary with other units, departments, agencies and government entities.
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Senior Executive
Service.
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Public officers’ assignment to and transfer between posts.
Merit principle.
Powers of heads of department in relation to employees.
(3) A member of the Senior Executive Service shall be individually responsible in relation to his area of responsibility for the
matters listed in subarticle (2); and he shall be liable to proceedings under the Disciplinary Regulations if he fails to prevent
or correct misconduct or negligence on the part of his subordinates where he could reasonably have taken steps to do so.
(4 ) Offices within the Senior Executive Service may be established, abolished or retitled only by the Prime Minister, who may
prescribe the terms on which appointments to such offices shall be made:
Provided that this subarticle shall not be read as conferring power to change the terms of an officer’s appointment during the course
of that appointment;
Provided further that an office may be abolished only if any of the conditions listed under subarticle (4) of article 23 applies.
(5) The Prime Minister may delegate his powers under paragraph (d) of subarticle (1) and subarticle (4) to the Principal Permanent
Secretary or to other senior public officers in such respects, and under such conditions, as he may prescribe.
(2) Such initial assignment or transfer may be made by the Principal Permanent Secretary or by any other public officer delegated by him for the purpose.
(2) For the purpose of this article, competitive selection on merit means the selection of the candidate best suited for the office on the basis of an assessment of eligible candidates’ individual and relative merits against the requirements of that office.
exercise in relation to public officers in his department all rights, duties and powers of an employer in relation to his employees.
(2) Positions shall be classified, and the terms and conditions of service applicable thereto determined, in accordance with such
directives and guidelines on classification as may be issued by the Principal Permanent Secretary with the approval of the Prime
Minister.
(3) A head of department may retitle a position in his department and alter the duties attached to it, and if necessary the position
shall be reclassified in accordance with subarticle (2):
Provided that this subarticle shall not be read as conferring power to change the terms of an officer’s appointment during the course
of that appointment.
(4) A head of department may abolish a position in his department only in the following cases:
(a) where a position has been filled through a contract of service for a fixed term or for the duration of a specified task, on
the conclusion of that term or task; or
(b) if the position is vacant; or
(c) if the position is no longer needed by the department.
(5) No person in any position may be paid a remuneration which is less than that applicable to his grade.
(2) Appointments to positions shall be made in the manner prescribed under article 110 and paragraph (1) of article 121 of the
Constitution and in accordance with article 21 of this Act, and before making an appointment to a position a head of department shall—
(a) advertise the position in such a manner as to allow eligible persons a reasonable opportunity to apply for the position; and
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Power to create, abolish and classify positions.
Appointments to positions.
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(b) appoint a selection panel to examine applicants and to make recommendations based on the criteria set out in article 21.
(3) Any person appointed to a position in terms of this article shall, for the duration of his appointment, be considered a public
officer and shall have all the rights, powers and duties pertaining thereto under this law and any applicable law, even if he does
not hold a grade.
(4) A head of department may make an appointment to a position for a fixed term or for the duration of a specified task.
(5) An appointment for a fixed term may, subject to the provisions of any other law, be extended for one further term without recourse
to a fresh call for applications.
(6) The Principal Permanent Secretary may issue directives and guidelines on matters of employment including but not limited to:
and
(a) the definition of eligibility requirements for positions;
(b) the conditions under which heads may make appointments;
so however that where the tasks that are to be carried out are intermittent or not on a regular basis, they shall be commissioned
though a contract for service.
(7) The Principal Permanent Secretary shall consult with the Public Service Commission before issuing directives and guidelines
under this article, and in so far as such directives and guidelines deal with matters falling within the scope of subarticle (1)
of article 110 of the Constitution they may only be issued with the agreement of the Public Service Commission.
Filling of positions by lateral appointment.
(2) Where a position is filled in terms of subarticle (1), a competitive selection need not be carried out and in this respect
article
21 shall not apply to appointments made in accordance with this article.
(a) as a sanction in accordance with the Disciplinary
Regulations; or
(b) at the end of the term for which the appointment to the position was made; or
(c) where the position is abolished.
(2) Where a public officer in a grade has been appointed to a position in accordance with the provisions of this Act, he shall
retain his grade and shall, on the expiry or termination of his appointment to the position, be assigned work in his grade, unless
his appointment to the grade has also been terminated or he is declared surplus to requirements in terms of article 28.
(2) The Minister responsible for the public administration may, by Order in the Gazette, add new grades to the Third Schedule and
abolish or retitle any of the grades listed therein.
(3) The Minister responsible for the public administration shall, after informing the Public Service Commission, establish the
eligibility requirements for appointments to each grade including, where applicable, rules of progression.
(4) The Minister responsible for the public administration may delegate his powers under this article to the Principal Permanent
Secretary or to other senior public officers in such respects, and under such conditions, as he may prescribe.
(5) Whenever the terms and conditions of a public officer’s appointment are in conflict with the Third Schedule, such terms and
conditions shall prevail.
(6) Appointments to grades shall be made in the manner prescribed under article 110 and subarticle (1) of article 121 of the Constitution
and based on the eligibility requirements prescribed under subarticle (3), and except as otherwise provided by the foregoing, in
accordance with article 21 of this Act.
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Removal from positions.
Grades.
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Surplus Pool.
Applicability of certain provisions in terms of the Constitution.
Extension to the public service of powers assigned to the Merit Protection Commission.
(a) they are not needed in their current posts and cannot be transferred or laterally appointed to other duties within their respective
department; and
(b) they cannot be transferred to another department in terms of article 20.
(2) The Principal Permanent Secretary may by direction in writing assign a public officer who is surplus to requirements to the
Surplus Pool, concurrently —
(a) assigning the said officer such duties in any department as the Principal Permanent Secretary may deem appropriate in view
of the officer’s skills and abilities; or
(b) assigning such officer for retraining in a specialisation, skill or profession in which the public service has a shortage of
staff.
(3) A public officer in a substantive grade who is assigned to the Surplus Pool shall retain his substantive grade.
(4) An officer who has been retrained to a satisfactory standard in terms of paragraph (b) of subarticle (2) may be withdrawn from
the Surplus Pool and appointed by the Principal Permanent Secretary to a grade or position appropriate to the officer’s new skills
provided that in the case of such appointments the provisions of article
21 need not be applied.
(5) The duration of the assignment under subarticle (2) shall be determined by the Principal Permanent Secretary.
110 of the Constitution, and they shall cease to have effect to the extent that such delegation is withdrawn, suspended or derogated from by amendment, until such time as the instrument is restored.
articles 33 and 34 of this Act, assuming directly in respect of the public service the powers therein assigned to the Merit Protection
Commission:
Provided that the restrictions applying to the Merit Protection Commission concerning matters under the jurisdiction of the Industrial
Tribunal shall not apply to the Public Service Commission acting in relation to the public service and public officers.
(2) Where the Public Service Commission finds that a public officer has been victimised as aforesaid in a manner that it is unable to prevent or redress, it shall make a report to the Prime Minister or to other authorities recommending such measures to redress the situation as it considers appropriate.
Commission shall be:
(a) to audit the appointment of employees of government agencies and government entities to verify that these are made in accordance
with article 21;
(b) to monitor and suggest amendments to directives and guidelines on employment matters issued by the Principal Permanent Secretary
in relation to agencies and government entities, as well as the application of such directives and guidelines; and
(c) unless otherwise catered for in the legislation, Order or instrument setting up the government entity, agency, board or
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Recommendation on victimisation.
Public Service Commission to act as Merit Protection Commission.
Functions of the
Commission.
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Powers of investigation and remedy.
commission or any other similar organisation or body, to inquire into reports that the directives issued by the Principal Permanent
Secretary have not been adhered to.
(2) In performing its functions in virtue of paragraph (a) of subarticle (1) the Commission shall operate through after-the-event
scrutiny and shall not subject any agency or government entity to any requirement to obtain the Commission’s clearance or approval
in advance of making appointments or taking decisions, except as a temporary measure in cases where the Commission —
(a) finds that the provisions of this Act have been, or are likely to be, breached; and
(b) is of the view that such a measure is necessary to prevent further breaches of this Act until such time as the Commission is
able to conclude any investigations and take corrective measures.
(3) The Commission shall not hear and investigate complaints on matters which are assigned exclusively by any other law to any
other body or to the jurisdiction of the Industrial Tribunal referred to in the Employment and Industrial Relations Act, and if any
such complaints are made to the Commission it shall refer the complainants to the Tribunal; but in relation to such matters the Commission
may—
(a) on its own initiative inquire into and investigate any cases with respect to which no formal complaints have been raised; and
(b) follow up a decision or award of the Industrial Tribunal with a view to taking additional remedial action under paragraph (c)
of subarticle (4) and subarticle (5) of article 33 of this Act.
(4) The Commission shall regulate its own procedure in the discharge of its functions under this Act.
Commission may:
(a) carry out such inspections and investigations as it may deem necessary;
(b) summon any person to appear before it and give evidence on oath;
(c) request in writing the production of information, documents or files in the custody of any public employee for the purpose
of examining the same or making copies thereof; and
(d) enter the premises of any agency or government entity, subject to compliance with any legal requirements placed by any law
on the police for the same purposes.
(2) Article 6 of the Inquiries Act shall apply to the investigations undertaken by the Commission and any summons or requests it may make in pursuit thereof.
(3) Without prejudice to subarticles (4) and (5) and article
34, the Commission’s findings may be used in evidence in any civil cause that may be filed by the injured party but, notwithstanding
any other law, the members of the Commission cannot be called to give evidence.
(4) The Commission shall make a report to the Prime Minister following every investigation under this Act, and where it finds that
an employment decision has been made otherwise than in conformity with the provisions of this Act it shall:
(a) annul the decision in question;
(b) issue such directives as it may consider necessary to redress the situation; and
(c) recommend the taking of such disciplinary or criminal action as it may consider appropriate in the circumstances.
(5) Without prejudice to any disciplinary or criminal action that may be taken in accordance with paragraph (c) of subarticle (4),
where an employee of a government agency or government entity has made an employment decision that is not in conformity with the
provisions of this Act the Commission may remove the employee from his position and/or interdict him from appointment or re-appointment
for a maximum period of five years.
(6) Notwithstanding the provisions of any other law, the decisions taken and directives issued by the Commission under paragraphs
(a) and (b) of subarticle (4) and under subarticle (5) shall be binding on the organisation to which they apply, and the board of
directors or head of the organisation as applicable shall ensure that the Commission’s decisions and directives are complied with.
(7) The Commission shall, as soon as possible after the conclusion of each year of its activity, make an annual report to the Prime
Minister about its workings during the said year, and the Prime
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Application of this
Title.
Establishment of agencies.
Legal personality and judicial representation of agencies.
Minister shall, as soon as possible after he has received the said report, lay it on the Table of the House of Representatives.
(2) An Order establishing an agency under this Act shall serve as the basic charter governing the agency’s operations and it
shall:
(a) set out the functions and duties of the agency; (b) specify which Minister is responsible therefor;
(c) prescribe the financial arrangements applying to the agency in accordance with article 41;
(d) set out any other special arrangements applying to the agency; and
(e) amend the Fourth Schedule.
(3) All government agencies established in accordance with subarticle (1) shall be listed in the Fourth Schedule together with an
indicative summary of their functions.
(4) The Prime Minister may by Order in the Gazette:
(a) abolish an agency established by Order under this Act and listed in the Fourth Schedule; or
(b) amend the functions and duties thereof as well as amend any other matter provided for in subarticle (2) hereof:
Provided that any such Order shall provide for the necessary amendments to the Fourth Schedule.
and being sued, and to which any function or operation of Government may be assigned under this or any other law.
(2) The legal and judicial representation of an agency shall lie in its Chief Executive Officer or such other officer of the agency
as the Minister responsible for it may from time to time appoint by notice in the Gazette:
Provided that for the purposes of article 181B of the Code of Organisation and Civil Procedure, where such other officer is duly designated,
any reference to the Chief Executive Officer in a judicial action or act shall automatically apply to the officer so designated.
(a) ensure that agencies coordinate their activities with other agencies, departments, government entities and Local Councils as
applicable;
(b) put into effect measures to improve the performance of agencies and the quality of the services they deliver to the public;
(c) provide for matters relating to employment, including – (i) the redeployment of staff to, from or between
agencies; and
(ii) the application of the merit principle and the establishment of safeguards in relation thereto;
(d) establish mechanisms for staff classification and the determination of pay levels; and
(e) put into effect such other policy objectives and management priorities as the Government may from time to time set out.
(2) Chief Executive Officers and employees of government agencies shall comply with all applicable directives issued by the Principal
Permanent Secretary, and failure to comply shall be grounds for disciplinary proceedings under any applicable procedures.
(3) The Principal Permanent Secretary shall seek to frame his directives in the best interests of the consumer and in such a manner
as to impose the least possible administrative burden on agencies consonant with the achievement of Government objectives, bearing
in
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Directives and guidelines issued by the Principal Permanent
Secretary in relation to agencies.
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General direction and control of agencies by Ministers and supervision by Permanent Secretaries.
Agency performance agreements.
Accounts, audit and other financial arrangements.
mind any directives issued in virtue of article 72 of the Financial
Administration and Audit Act.
(4) Subarticles (3) to (6) of article 15 shall apply mutatis mutandis to the directives issued by the Principal Permanent Secretary under this article.
(2) Save as aforementioned, where an agency is subject to supervision by a Permanent Secretary article 17, except for subarticle (6) thereof, and article 18 shall apply to the agency and its Chief Executive Officer in the same manner as to departments and their heads.
(2) An agency performance agreement shall cover a period of one year to three years and shall be renewable in accordance with such directives and guidelines as the Principal Permanent Secretary may issue governing the development of agency performance agreements.
(2) The following provisions shall apply:
(a) heads of agency shall keep proper books of accounts in such a manner as the Minister responsible for finance may from time
to time direct;
(b) such accounts shall be subject to audit by an auditor appointed for the purpose by the head of each agency with the concurrence
of the Minister responsible for finance and shall moreover be subject to scrutiny by the Financial Management
Monitoring Unit, and audit by the Internal Audit and Investigations
Directorate and the Auditor General as the case may be;
(c) not later than six weeks after the end of each financial year, the head of each agency shall present to his Minister through
the relative Permanent Secretary an audited statement of accounts together with a report on the workings of the agency which shall
state the manner in which the agency has operated to fulfil its functions and its plans for the future; and
(d) this report shall be laid before the House by the Minister responsible for the agency not later than six weeks after its receipt
or, where the House is not in session, not later than the second week after the House resumes its sittings.
(2) An advisory board established under this article shall be chaired by the Chief Executive Officer and shall consist of not less
than two and not more than four members appointed by the Minister responsible for the agency.
(3) The remuneration paid to members of an agency advisory board shall be in accordance with any directives and guidelines issued
by the Principal Permanent Secretary in relation thereto.
Provided that in assessing the pensionable emoluments of such officer for the purposes of any law relating to government service pensions,
no account shall be taken of any allowances, bonuses or
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Advisory boards.
Detailing of public officers with an agency.
Pension rights and other arrangements.
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gratuities paid to such officer by the agency in excess of what he is entitled to as a public officer:
Provided further that during the time in respect of which he is so detailed to perform duties with the agency his terms and conditions
of service shall not be less favourable than those which are attached to his appointment with the Government during the period aforesaid.
Such terms and conditions shall not be deemed to be less favourable because they are not in all respects identical or superior to
those enjoyed by the officer concerned at the date of such detailing, if in the opinion of the Prime Minister such terms and conditions,
taken as a whole, offer substantially equivalent or greater benefits.
(2) (a) For the purposes of calculating pensionable emoluments, posts and salary grades with an agency shall be classified in
the most nearly corresponding grades and incremental levels in the services of the Government of Malta by reference to job descriptions,
skills, responsibilities and other analogous factors.
(b) The classification referred to in paragraph (a) shall be carried out by a board composed of a chairperson appointed by the
Minister responsible for finance and two other members, one appointed by the Minister responsible for the agency and one appointed
by the agency. The classification shall be subject to the final approval of the Minister responsible for finance.
(c) Such classification shall take place within three months of any adjustment of the salaries of employees in Government service
or of employees of the agency.
(d) No post shall be classified in a grade higher than that of a Grade 3 in the service of Government or such other grade that
the Minister responsible for finance may from time to time, by notice in the Gazette, determine.
(e) Without prejudice to article 113 of the Constitution, no person may, following a classification as aforesaid, be entitled to
rights under the Pensions Ordinance less favourable than those to which he would have been entitled prior to such classification.
(f) Without prejudice to any other law, where on the date of the coming into force of this Act, arrangements which should have
been made with respect to public officers that have been detailed in terms of any applicable law have not been finalised, the Prime
Minister may issue regulations with the purpose of resolving any administrative
difficulties that may have arisen between the time that a public officer has been detailed.
(2) A Permanent Secretary who is supervising a government entity in terms of subarticle (1) shall ascertain that it is—
(a) working towards the timely and effective fulfilment, in conjunction with other government entities as appropriate, of the Minister’s
and the Government’s policy objectives;
(b) being managed according to law, the public administration values, the Code of Ethics, and applicable policies and directives
governing staff conduct, management and the use of resources; and
(c) operating economically, efficiently and effectively and delivering any services to the public to a satisfactory standard.
(3) In fulfilment of his duties under subarticle (2), a Permanent Secretary may, in consultation with the relative Minister, establish
targets for the entity and require any information except where this is precluded by law.
(4) A Permanent Secretary shall report to his Minister on the performance of the government entities under his supervision.
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Application of this
Title.
Application of certain articles of
this Act and of other laws.
Supervision of government entities by Permanent Secretaries.
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Supervision of boards and commissions.
Power to make regulations.
(2) The provisions of article 47 shall mutatis mutandis also apply with respect to boards and commissions.
(3) The directives and guidelines mentioned in subarticle (1) and the supervision referred to in subarticle (2) shall apply to
administrative and day-to-day affairs of boards and commissions without prejudice to the rights and duties of the said boards and
commissions to carry out those functions or roles for which they are set up.
(4) In this article, “boards and commissions” includes any council, committee, panel or similar body not already catered for
by this Act and in any case shall not apply to any commission or authority established by the Constitution.
(a) the better management and administration of the public service, government agencies and government entities;
(b) the manner in which the accounts and records of government agencies and government entities are to be kept;
(c) the manner in which goods and services are to be procured by any or all government agencies or government entities, and the
procedures to be adopted in connection therewith;
(d) the sanctions that may be applicable in case of breaches of the Code of Ethics;
(e) the manner in which public officers shall be detailed, released, deployed, attached or seconded with agencies and government
entities, and the rights accruing to such officers, so however that the Prime Minister may, without prejudice to any vested rights,
also issue regulations with a view to resolving any
matter outstanding as at the time of the coming into force of this
Act; and
(f) the recruitment in public administration of nationals of member states of the European Union other than Malta and nationals
of other countries enjoying similar rights in relation to the free movement of workers:
Provided that posts involving the exercise of public authority and the safeguarding of the general interests of the State, and particularly
those listed herein, may be reserved for Maltese nationals:
(i) posts in the Office of the President, the House of Representatives, the Prime Minister ’s and Ministers’ Secretariats,
the Cabinet Office, and the offices of the Principal Permanent Secretary and of Permanent Secretaries;
(ii) the Judiciary, posts involving the preparation of expert advice in the field of prosecution of offences or lawmaking, and
posts entailing responsibility for advisory constitutional bodies;
(iii) posts involving the sovereignty of the State, including diplomatic and foreign representation;
(iv) posts in the Office of the Prime Minister and the Ministries of Finance, Justice, Home Affairs and Foreign Affairs;
(v) posts within departments charged with the protection of the economic interests of the State, including tax authorities;
(vi) positions in the Senior Executive Service;
(vii) posts in the disciplined forces and offices responsible for defence matters; and
(viii) posts in the security services and in the field of civil protection and defence.
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Amendment to article 181B of the Code of Organisation and Civil Procedure.
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Amendment to the
Interpretation Act, the following proviso shall be added:
“Provided that on employment, promotion or disciplinary matters in relation to individual employees, such direction may only be
given by the Prime Minister and in such a case the head of department shall inform the Public Service Commission.”
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(Article 5)
1. This Code of Ethics is adopted within a framework of principles which are fundamental to the ethos governing behaviour. These
have been identified as public trust; serving the public and the business community; responsibility to the Government of the day;
productivity and flexibility; and public employees’ rights.
2. The public has a right to expect that public sector organisations and their employees are of the highest integrity and competence
and serve all citizens fairly, reasonably, equitably and efficiently.
3. Public employees shall provide impartial and accurate advice to the Government of the day and shall implement its policies promptly,
efficiently and effectively.
4. The public and the business community have a right to expect that public employees will seek to meet their legitimate needs
promptly and courteously.
5. The nation expects public employees to be committed to a constant quest for innovation, improved productivity, and the simplification
of procedures, so as to contribute to national economic growth and competitiveness.
6. Public employees shall make full use of information and communication technology as an essential tool in the improvement of
public administration and the delivery of better services, and they shall ensure that they possess the necessary skills to this end.
7. Public employees’ rights are all the rights of employees, within the provisions of legislation and regulations.
8. A conflict of interest may be defined as a situation in which a public employee has a private or personal interest sufficient
to influence or appear to influence the objective exercise of his or her official duties.
9. Public employees shall avoid any financial or other interest or undertaking that could directly or indirectly compromise the
performance of their duties.
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10. In many cases only the individual employee will be aware of the potential for conflict. Therefore, the onus is on the employee
to disclose to his or her senior if a potential or actual conflict of interest arises.
11. This includes the notification of all relevant personal, financial, business or other interests, in particular:
(a) any directorship, partnership, agency or any shareholding;
(b) any interest in any activity or business in which or with which the organisation is engaged;
(c) any interest in goods or services recommended or supplied to the organisation.
12. Public employees shall notify the head of the organisation in writing within a week whenever any of the above interests arise
namely, upon assuming office, change in duties or due to a change in circumstances.
13. No public employee or any member of his household shall accept gifts or services such as might be deemed to create an obligation,
real or imagined.
14. A gift can be interpreted as an inducement or a reward simply because of its intrinsic value and therefore only token gifts
may be accepted.
15. Public employees shall perform any duties associated with their positions diligently, impartially and conscientiously, to the
best of their ability.
16. In the performance of their duties, public employees shall:
(a) keep up to date with advances and changes in their area of expertise; (b) comply with any relevant legislative or administrative
requirements;
(c) treat members of the public and other staff members with courtesy and sensitivity to their rights;
(d) provide all necessary and appropriate assistance to members of the public;
(e) maintain adequate documentation to support any decisions made;
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(f) strive to obtain value for public money spent and avoid waste and extravagance in the use of public resources;
(g) not take or seek to take improper advantage of any official information gained in the course of employment;
(h) not wilfully supply incorrect or misleading information; (i) not indulge in favouritism or nepotism.
17. At all times the behaviour of a public employee shall be in such a way as not to discredit his or her position and not to reflect
adversely on the public service.
18. Public employees shall be expected to give full support to the Government of the day regardless of which political party or
parties are in office. When implementing Government policy, public employees’ own values and beliefs shall not take precedence
over those explicit or implicit in Government policy.
19. Public employees shall not harass or discriminate in work practices on the ground of sex, marital status, pregnancy, age, race,
colour, nationality, physical or intellectual impairment, sexual preference, or religious, political or other convictions / allegiances
when dealing with their colleagues and members of the public.
20. Public employees have a duty to report to a senior employee any unethical behaviour or wrongdoing by any other public employee
during the course of his or her duties.
21. Issues or cases being considered by public employees shall be dealt with consistently, promptly and fairly. This involves dealing
with matters in accordance with approved procedures, without discrimination on any grounds. There is an obligation to treat each
issue reasonably and with a view to meeting the principles of natural justice.
22. When using any discretionary powers public employees shall ensure that they take all relevant facts into consideration and
have regard to the particular merits of each case.
23. A public employee shall only disclose official information or documents acquired in the course of his or her employment when
required to do so by law, in the course of duty, or when proper authority has been given. In such cases, comments made by public
employees shall be confined to factual information and shall not express opinion on official policy or practice.
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24. A public employee as defined in article 2 of the Public Administration Act shall not accept employment in the private sector
if he will be placed in a position to make use of “insider information” if such information came to his knowledge as a direct
result of his public employment.
25. It is expected that public employees shall:
(a) be efficient and economical in the use and management of public resources;
(b) be scrupulous in their use of public property and services and not permit their abuse by others.
26. Official facilities and equipment shall not be used for private purposes unless prior official permission has been given.
27. The prior approval of the Permanent Secretary of the Ministry concerned or the Chairperson/Chief Executive Officer is required
before public employees may engage in any form of business or employment outside their official duties.
28. In all cases when outside employment is considered, public employees shall give their public sector employment first consideration
and avoid situations which could give rise to, or the appearance of, a conflict of interest. In particular, they must consider whether
the company or organisation concerned is in, or entering into, a contractual relationship with the Government, whether its primary
purpose is to lobby government organisations or members of Parliament, or whether it is in a regulatory relationship with the organisation.
29. Former public employees shall ensure that they do not accept employment or engage in activities which may cast doubts on their
own integrity or that of the organisation in which they were previously employed or of the Public Service generally.
30. It is of the greatest importance that public confidence in the impartiality of the public administration shall not be impaired
in any way. Public employees need to ensure that their participation in political activities does not bring them into conflict with
their primary duty to serve the Government of the day. This is important in order to maintain ministerial and public trust in the
impartiality of the advice given, and actions taken, by public employees.
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31. Likewise public employees need to ensure that the spirit of paragraph 30 hereof is respected whenever they are asked to make
a public comment. Public comment includes public speaking engagements, comments on radio and television and expressing views in letters
to the newspapers or in books, journals or notices or where it might be expected that the publication or circulation of the comment
will spread to the community at large.
32. Determining what is appropriate in any particular case will depend on the extent of the participation of the individual, the
nature of the issue, the position held by the individual and existing regulations within the organisation concerned.
33. If a public employee becomes aware that a potential conflict, whether real or apparent, has arisen or is likely to arise, the
public employee shall immediately inform the head of his or her organisation.
34. If a conflict of interest does arise, the public employee may have to stop participating in political activity or withdraw
from areas of his or her duties giving rise to the conflict of interest.
35. Sanctions may be applied if public employees are involved in breaches of this Code of Ethics.
36. The sanctions applied shall depend on the seriousness and nature of the breaches and may entail formal disciplinary and/or
criminal action as applicable.
37. Whenever appropriate, counselling by a supervisor or member of senior staff may also be given.
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(Article 36)
Management Efficiency To support public sector change initiatives through
Unit the provision of consultancy advice
Office of the Attorney To support the Attorney General in his role as chief
General legal adviser to the Government and chief prosecuting officer
__________
Passed by the House of Representatives at Sitting No. 77 of 28th January,
2009.
LOUIS GALEA
Speaker
PAULINE ABELA
Clerk to the House of Representatives
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