Question Time: Constitutional convention
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Question Time: Constitutional convention

Should the Constitution be updated or rewritten?

Jonathan Attard, lawyer

Before any attempt is made in trying to give a direct answer to the question at hand, a number of considerations ought to be thoroughly analysed. The point of departure should always be that we are discussing the Constitution, the supreme law of the land. A Constitution which, together with other important sources, reflects the constitutional development of Malta, and for better or for worse, the imprint or rather the influences of various government administrations.

A sound approach to the reform process would be that of critically appreciating the purpose of this most fundamental and supreme law of our country – and whether such purpose has served its intended function throughout the years.

Indeed, no one will dare to address this approach in a short article, but I am more than confident that following such an exercise the result will show that while there are aspects of our Constitution which have stood the test of time, others need to be revisited, amended, structurally reviewed, or completely rewritten, and surely new sections may need to be included.

In terms of A.V. Dicey’s definition, our Constitution is to be regarded as rigid. However, this does not mean it ought to remain the same forever regardless of the nation’s changing needs throughout time. On the contrary, a living Constitution must be able to grow and change its procedures in order to be considered a developing document that can rejuvenate itself to reflect the aspirations of its nation.

Our Constitution is to be regarded as rigid. However, this does not mean it ought to remain the same forever

The latest news on the constitutional convention is to be interpreted as an important opportunity that can effectively place the individual at the centre of the constitutional reform, as it should be. This convention, together with other constitutional reforms that are being spearheaded by Parliamentary Secretary Julia Farrugia Portelli, will definitely motivate more people to actively participate in each and every citizen’s foremost contract: the Constitution of the land.

This is indeed an opportunity to unite the Maltese in bringing forward their proposals. Following that, an in-depth but concrete debate of the most relevant proposals which are intended to further strengthen our democratic credentials in full respect of the rule of law, the fundamental rights and freedoms as well as the principles of solidarity and subsidiarity, is needed.

Once a consensus is achieved, after wide and meaningful consultation that goes beyond any political allegiance and takes into account all strata of civil society, a decision is to be taken on the core issues that need to be addressed, and how radical such changes should be, so the Maltese Constitution may continue to serve its people.

 Only then will we have a clear answer of whether an update to the letter of the Constitution would suffice, or if a rewriting of the constitutional document is necessary.

Rosa Borg, activist and member of the Democratic Party

The Constitution is the basis of our democratic society where human rights, rule of law and separation of powers are meant to safeguard our common good. It was created to serve and protect people, providing us with a set of inalienable rights and obligations ensuring that we all have the opportunity to get ahead in life.

It is something that makes me proud to be a Maltese citizen. 

Since it was written in 1964, the Constitution was amended in 1979 and revised again several times over the years with the latest amendment being last year. This had to be done to reflect the evolving nature of society and the changing realities of our daily life. 

 Although it might seem easier to amend the Constitution whenever required, rewriting it from scratch may be better in the long run. 

What is certain is that this process should be left in the hands of technical and specialised legal experts rather than politicians. A well-organised constitutional convention, consulting all entities, should be held, with the active participation of ordinary people. After all, the Constitution is a social contract between people.  The smaller political parties which are not represented in Parliament should also take part in this convention. 

The Constitution is a tool. It is no use having a Constitution that looks good on paper, if the laws which are meant to ensure that it is put into practice are not applied

Proper safeguards based on democratic principles and known international best practices must ensure that the process is not misused by the two main political parties for their own ends rather than to serve citizens. 

This constitutional convention should be held over at least a two-year period, ideally accompanied by an educational campaign as there are still too many people in Malta who are unaware of the contents of the Constitution and its legal ramifications. This especially applies to vulnerable and at-risk groups such as the elderly who are sometimes unaware of their rights.

There are parts of the Constitution which are tried and tested and have served us well over the years. During the convention, a proper assessment would enable us to decide what should be kept and included in the rewritten Constitution and what has to be improved or redone from scratch. While the separation of powers and checks and balances are a fundamental part of the Constitution, economic, social, environmental and cultural rights should also be given their due importance.

Ultimately, whether the Constitution is rewritten or amended, it needs the backing of law and justice in order to be effective. The Constitution is a tool. It is no use having a Constitution that looks good on paper, if the laws which are meant to ensure that it is put into practice are not applied or applied selectively. 

Ultimately whether the Constitution is rewritten or amended I want a Constitution that mirrors the principles and values of a pluralistic civil society and the desires for Malta held by citizens of conscience.

The Nationalist Party failed to send their contribution in time for publication.

If you would like to put any questions to the parties in Parliament send an e-mail marked clearly Question Time to editor@timesofmalta.com.

This is a Times of Malta print opinion piece

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