Debate on legislative reform is a necessary and salutary feature of constitutional democracy. The publication of Bill No. 137 of 2025 – The Holders of Public Office and Public Entities (Responsibility) Bill has prompted a strong response from civil society, particularly from Repubblika, whose critique presents a range of objections primarily focused on the alleged erosion of civil accountability for public officers. While the intensity of their intervention reflects a commendable engagement with the law, many of their key assertions, in my humble opinion, do not withstand closer legal scrutiny. As shall be explained, the introduction of this Bill by the Minister for Justice, Hon. Jonathan Attard, is a laudable step toward legal certainty in an area of law that has long operated without clear codification.
This commentary seeks to respond directly to those claims by analysing the Bill’s operative clauses and placing them within the broader doctrinal framework of public liability.
- On the Structure of State Liability and the Question of Official Impunity
Repubblika’s central claim is that:
“Bill 137 shifts the consequences of corrupt acts committed by public officials from those officials to the State… [they] will now avoid civil consequences… unless those actions are first proven in a criminal court that must definitively find them guilty”.
This interpretation overlooks both the internal safeguards of the Bill and its alignment with continental public law doctrine. Article 3(1) provides that:
“In any judicial proceedings instituted against a person within the State administration with respect to an act done in the exercise of a public function, the State shall assume responsibility of a civil nature and the payment of moneys including any damages or compensation…”.
However, Article 3(5) immediately limits this assumption:
“The State shall only be obliged to pay… insofar as the person… has not acted with criminal malicious intent… or with culpable gross negligence…”.
Thus, the Bill does not extinguish personal liability; it introduces a conditional State guarantee. This structure mirrors the French doctrine of faute de service, whereby the administration is liable for wrongful acts functionally linked to public service, unless the act is separable due to its gravity or personal nature—in which case, it becomes a faute personnelle. The dividing line in French law is whether the fault arises within the scope of institutional activity. The Maltese Bill adopts a nearly identical framework, protecting public officials in the course of their functions unless serious misconduct is judicially confirmed.
- On Victims’ Rights and the Application of Article 1051A of the Civil Code
Repubblika further claims:
“This law crushes the rights of corruption victims and protects corrupt officials because it dismantles the effectiveness of Article 1051A of the Civil Code”.
This is legally inaccurate. The Bill does not repeal or amend Article 1051A. Rather, it clarifies the route through which civil damages may be claimed when a public function is implicated. Article 3(2) ensures that when a claim is brought against a public official for acts committed in that capacity, it must also be notified to the State Advocate and the relevant authority. The result is that the State becomes the principal respondent in the first instance—not to suppress accountability, but to acknowledge that institutional responsibility arises from the nature of public governance.
This procedural clarification is doctrinally consistent with French administrative law, where the State is generally liable for faute de service, with the right to shift liability back to the official in cases of faute personnelle. The Maltese Bill similarly preserves the right of redress in Article 3(6):
“The State shall have a right to recover… if eventually a Court… establishes that such person had acted… with criminal malicious intent… or gross negligence”.
There is no barrier to justice for victims. The legislation simply ensures that the burden of financial responsibility is aligned with public institutional structures—until such time as personal fault is proven.
- On Precautionary Measures and the Role of the State as Guarantor
Another concern raised by Repubblika is that:
“Precautionary measures against these officials will automatically be lifted, and even provisionally, the money they stole through corruption cannot be frozen”.
This characterisation, I am afraid, is misleading. Article 3(4) of the Bill provides that:
“The State shall act as guarantor for any sum… secured by means of civil acts of a precautionary nature… Once the State provides such guarantee, the warrants… shall be immediately revoked…”.
The provision does not eliminate precautionary measures; it transforms their mechanism. By allowing the State to stand as guarantor, it protects due process and avoids the reputational or economic harm that might arise from interim measures imposed on officials later found to be blameless. This is likewise conceptually aligned with the French doctrine of responsabilité sans faute, in which the State may assume liability not because of fault, but to ensure the continuity and equity of institutional remedy.
- On the Alleged Equivalence of Error and Corruption
Repubblika claims:
“This Bill treats a minor administrative error and the embezzlement of millions of euros the same way”.
This assertion is directly refuted by the statute itself. The relevant threshold is made explicit in Article 3(5), which denies indemnity where there is “criminal malicious intent” or “culpable gross negligence”. The Bill does not conflate wrongdoing with error; it legally separates them and creates a rebuttable presumption of State responsibility that is lost once serious personal fault is found.
Moreover, Article 3(7) states that:
“This Act shall not preclude the initiation or continuation of criminal or disciplinary proceedings independently of the civil action…”.
This provision reinforces that civil indemnity does not bar penal responsibility. The concern that the Bill fosters impunity is therefore unfounded.
Conclusion
It is clear that the doctrinal framework established by Bill No. 137 does not weaken that accountability. Rather, it codifies a long-recognised principle: that the State assumes initial liability for public acts performed in its name, unless and until the individual officer is shown to have acted with criminal or grossly negligent intent.
The Bill outlines the principle that the State should bear the burdens of governance—but only so long as its agents act lawfully. When they do not, personal liability is preserved, and mechanisms of recovery are set out in statutory terms. In sum, the Bill does not offer impunity. It offers structure. In this respect, concerns about impunity are structurally misplaced.
It is in this spirit that particular attention may be drawn to the speech delivered in Parliament on 9 July 2025 by the Opposition’s spokesman for justice, the Hon. Karol Aquilina, whose intervention demonstrated a balanced and legally attuned approach to a legislative proposal of institutional complexity. Aquilina made it clear that this Bill offers a long-overdue statutory articulation of State liability that better reflects the institutional realities of modern governance.
