Constitutional reform - Martin Scicluna

Constitutional reform - Martin Scicluna

The focus should be on shifting some powers from the PM to the president

The President’s address at the start of this Parliament in 2017 outlining the government’s plans for this legislature placed the reform of the Constitution of Malta at the head of the list. President Marie-Louise Coleiro Preca has since been asked to chair a steering committee composed of three Labour and three Nationalist representatives to produce a road-map for constitutional reform, focusing initially on the consultative process to be followed. Given their tiny representation, the Democratic Party should be in attendance.  

The recent publication of a sweeping report by the Venice Commission has highlighted the urgent need for a comprehensive review of how Malta’s Constitution operates almost six years since Labour promised to hold a constitutional convention on the issue.

The Independence Constitution has served Malta well, notwithstanding the deficiencies highlighted by the Venice Commission. It is difficult to make a case for the complete rewriting of all, or even a major part of it. But there are undoubtedly important aspects which need urgent revision.

Prime among these are the key institutional issues concerning the current checks and balances under our Constitution. These lie at the heart of criticisms concerning the rule of law that need to be addressed.

The kernel of the challenge stems from the accumulation of powers in the executive, and specifically the office of the prime minister. Our Westminster model of parliamentary democracy has sometimes been called an "elective dictatorship”. Under our first-past-the-post electoral system the winner takes all the spoils. The concentration of power in the hands of the prime minister is unhealthy.

The president acts on the advice of the Cabinet. He or she wields no constitutional power. The prime minister has the effective last word on the selection and appointment of the president (and he can also remove them through his control of the parliamentary majority).

The long-promised convention on proposed changes to the Constitution under the leadership of the president should be established as soon as possible

The prime minister appoints the Cabinet. The executive controls the House of Representatives (the legislature) through its electoral majority. Every Constitutional Commission, the Broadcasting Authority, the Attorney General, the Security Service and other independent institutions, and all top public officers are appointed by the executive.

Moreover, although there is now a formal selection process, members of the judiciary, the third arm of government, are in effect selected and appointed by the executive.

The separation of powers between the executive, the legislature and the judiciary exists only on paper. The prime minister has effective control over all the levers of government. In practice, all power is vested in him.

The need for greater checks and balances and more transparency and accountability of the executive is now paramount if the telling questions over governance to which this country has been subjected over the last few years is to become a thing of the past. While the current system of Cabinet government should be retained, it should be radically improved through the introduction of greater checks and balances. This is the kernel of the problem. How?

Despite the Venice Commission’s proposals, the appointment of the president should remain vested in the Cabinet. But the final selection should be made on the basis of a number of nominations submitted by Cabinet to a small electoral college” comprising a dozen members of civil society selected from among former presidents, prime ministers, speakers, chief justices and notable representatives of civil society.

More powers should be granted to the president. As well as giving them greater security of tenure  through the introduction of two fixed terms, their duties should be extended to include specific responsibility for conflict resolution, as well as the appointment of all constitutional commissions and authorities and any other major institutional posts where political sensitivities run high and whose importance to national security are great.

The president should be advised in this process by a senior consultative body – for want of a better term, a ‘Council of State’– whose responsibilities would be strictly restricted to limited areas of governance. Importantly, the Council of State would not be given any legislative power over the House of Representatives, nor would it have any power of veto over legislation passed in Parliament.

It would be made up of no more than half a dozen individuals chosen by the president, based broadly on similar qualifications and calibre to those in the ‘Electoral College’. The president would be advised to appoint nominees for these sensitive public service appointments (based on selections held either in camera or in public) only after recommendation and resolution by the Council of State.

This would ensure that the selection of these sensitive posts in government are made without the prime minister or Cabinet being involved, but instead solely on the president’s final judgement (based on high level advice) of the qualifications and merit of the individuals concerned, not political preference.

This limited devolution of power from the executive to the president would give that office greater prestige, while ensuring that politically partisan appointments, cronyism and patronage – which have dogged Maltese politics for so long – are avoided. Merit, integrity and competence, implemented in an open and transparent manner, will become the major criteria for selection of these important public offices of State.  

In tandem with this limited shift in responsibilities from the prime minister to the president, the function of Parliament to hold the executive to account should be considerably strengthened. This can only be achieved if it is given its own budget and controls its own staff, and Members of Parliament are given the administrative infrastructure and research facilities to be fully effective.

The need to ensure that the accumulation of power in the hands of the prime minister and his Cabinet is not abused, that proper constitutional checks and balances are in place to prevent this, and an open public discussion is held to examine these and other constitutional options through a Constitutional Convention are now vital requirements.

The long-promised convention on proposed changes to the Constitution under the leadership of the president should be established as soon as possible. It should be asked to report within 12 months. The recent unwillingness to grasp this nettle has been misguided. The comprehensive Venice Commission report should prompt immediate action to tackle the issues affecting Malta’s governance and rule of law, starting with the crucial need for greater checks and balances.

This is a Times of Malta print opinion piece

Comments not loading? We recommend using Google Chrome or Mozilla Firefox with javascript turned on.
Comments powered by Disqus