The phenomenon of ‘self-suspension’

“Self-suspension” has become a bizarrely fashionable move for public officers accused of wrongdoing, but the act of suspending one’s self from a job or position doesn’t actually appear to exist as a form of disciplinary procedure at all, no matter how much our politicians try to wish it into existence by the act of sheer repetition.

When, earlier this month, Alexander Dalli, the former director of prisons, was reported to have “suspended himself” following the 13^th death in prison on his watch, few batted an eyelid.

After all, not only was the news accompanied by an official statement by the Ministry of Home Affairs that used that exact expression, but Dalli is merely the latest in a series of public officials that have resorted to this innovative self-applied disciplinary action that appears to have no basis in law or in the public service regulations.

From obscure to ‘de rigueur’

Even before former minister Chris Cardona made ‘self-suspension’ fashionable, there was Edward Caruana, a close canvasser of Evarist Bartolo, and a Foundation for Tomorrow’s Schools’ official, who, when facing corruption allegations, had suspended himself in 2016 and continued to receive a full salary.

Cardona provided one of the more memorable instances of ‘self-suspension’ from his ministerial role at the end of 2019 following revelations that had implicated government officials in Daphne Caruana Galizia’s assassination.

A statement released by the Economy Ministry announced that he was “suspending himself with immediate effect from his position as minister pending the investigations and proceedings going on right now”.

This move had prompted questions from legal experts who were quick to point out that, according to the Constitution, a minister can either resign or be removed from office either by the prime minister or by a parliamentary motion, adding that what Cardona had done was “legally unheard of”.

At the time, the principal permanent secretary, Mario Cutajar, was asked to explain under which provision of the law or public service regulations he was granted the opportunity to suspend himself and keep his salary.

Cutajar did not point to any specific provisions but said the decision was based on a precedent dating back to 2013. When pressed to state which case he was referring to, Cutajar said he could not divulge any additional details “due to data protection provisions”. In the meantime, senior civil service officials said there was no legal provision authorising a public service employee to suspend him/herself.

Recently, Nationalist Party MP Joseph Ellis asked Prime Minister Robert Abela to explain which public service provisions allow for members of the public service to ‘self-suspend’, Abela replied that auto-suspensions were used in the past by previous administrations and that therefore the government was following the same procedures.

Abela also went on to add that the person Ellis was probably referring to – Dalli – worked with an agency and was not, strictly speaking, part of the public service. Our politician’s inability to answer questions clearly and accurately never ceases to amaze.

PN MP Jason Azzopardi ‘suspended himself’ from the PN’s parliamentary group and shadow cabinet, after asking the standards commissioner to investigate his 2017 stay at an overseas hotel funded by Yorgen Fenech’s family.

This tendency extended beyond the public sector. Michel Rizzo, Allied Group’s former managing director,  suspended himself from his role after he was arraigned in court together with the company’s former financial controller Claude Licari and charged, along with Allied Group’s printing arm Progress Press, with fraud and money laundering over a Malta Enterprise grant.

The search for provisions

There are several provisions that address suspensions in the Manual on Disciplinary Procedures in the Public Service, which was updated as recently as last month. They include interim measures pending disciplinary or criminal proceedings, such as summary suspension, forced leave, and precautionary suspension. Each of these measures is to be initiated by the relevant Head of Department (or equivalent) with no mention of the public officers taking any form of initiative and suspending themselves.

There are also no provisions for ‘self-suspension’ in the Public Service Act or the Public Service Commission Disciplinary Regulations.

An employment law expert contacted by The Shift explained how “employment law does not recognise the concept of ’self-suspension’ and that suspension with no or reduced pay is only allowed if a Collective Agreement contemplates it, at least in the private sector. In the public sector, the relevant procedures allow suspension on half or no pay pending investigation and/or conclusion of criminal action (if relevant) in certain circumstances”.

He added that “self-suspension is the situation where the employee informs the employer that s/he is stepping away from duties – whether the employer accepts this (instead of treating it as a resignation) and, if accepted, the extent to which the employer continues paying the employee is a matter for the employer to decide and not the employee.”

Resignations

In contrast, when Nationalist MP Karol Aquilina was charged with dangerous driving, he resigned from his positions as the party’s justice spokesperson and secretary in the parliamentary group and was reappointed to the same positions once acquitted.

In 2010, then-parliamentary secretary Chris Said voluntarily stepped down to clear his name following claims of perjury unrelated to his political role. After he was cleared, Said was appointed again as a parliamentary secretary and had to take a new oath of office.

Following reports on her husband’s friendship with alleged Caruana Galizia murder accomplice Yorgen Fenech, then-Minister for Gozo Justyne Caruana had resigned. Rosianne Cutajar also resigned pending the outcome of an investigation by the Commissioner for Standards in Public Life into her ethical conduct with Fenech.

Admittedly, these are slim pickings given that these resignations did little to hold either Cutajar or Caruana accountable in any meaningful way, and have only resulted in a game of musical chairs.

However, as the lawyer who spoke to The Shift concluded, ‘self-suspension’ “is pretty much an empty gesture, as it needs the employer to play along”.

From Alex Dalli to Chris Cardona, all these initiatives were politically expedient to their respective bosses but it has not stopped this empty gesture from making its way insidiously into our collective memory to the point where not only have we stopped questioning its legitimacy, but a couple of opinion pieces even called for politicians to self-suspend themselves.

Therefore, unless there is some obscure circular doing the rounds among the ministries, then our public officials seem to be doing nothing more than perpetuating a disciplinary myth.