Powers of the president - Martin Scicluna
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Powers of the president - Martin Scicluna

President Marie-Louise Coleiro Preca. Photo: Darrin Zammit Lupi

President Marie-Louise Coleiro Preca. Photo: Darrin Zammit Lupi

Marie-Louise Coleiro Preca’s tenure as President of Malta ends in two months’ time. She has proved to be a most dedicated and energetic President, performing her role as Head of State with dignity and great warmth. 

Her focus on social issues, primarily through her initiatives in founding the President’s Foundation for the Well-Being of Society and the President’s Trust, as well as through the expansion of the Malta Community Chest Fund, has been exemplary.      

Her imminent departure provides an opportunity to examine a topic close to her own heart: the limited constitutional powers of the Office of the President of Malta. It is an issue also highlighted by the recent Venice Commission’s report on Malta’s Constitution calling for the urgent need to examine the checks and balances on the executive (the Prime Minister, his Cabinet and the civil service).

There are two issues to be considered: the future role and function of the president; and his or her eligibility, appointment and tenure.

As to the president’s role, it is imperative that the office continues to be seen as a unifying force that is above partisan politics and which opens and maintains channels of dialogue between the major parties and civil society.

The president’s current functions are primarily ceremonial. He or she normally acts on advice tendered by the Prime Minister or by a Cabinet minister. It is in only a handful of situations – clearly stipulated in the Constitution – that presidents act on their own initiative, not advised by the government. 

But, as the Venice Commission’s recent opinion highlighted, the time has come for a revision of the president’s functions.  Importantly, there is a case for extending those roles, which the president should carry out independent of the government. 

One possibility would be for the president to be accorded enhanced authority in conflict resolution and through the twin roles as “guardian of the Constitution” and “guardian of institutional integrity”.

Defining these functions will require care, but the last few years have given us an insight into those areas – principally concerning the integrity and independence of Malta’s institutions – which may benefit constitutionally from overt presidential involvement.

In line with a specific Venice Commission recommendation, there is merit in the Judicial Appointments Committee being made responsible for proposing candidates for appointment as judges or chief justice directly to the president (not, as now, to the executive), with the JAC’s proposals being binding upon the president.

Moreover, the president should also be made responsible for appointing the heads of all constitutional commissions, authorities and other major institutional organs where political sensitivities run high and those whose importance to national security are great.

As to the president’s role, it is imperative that the office continues to be seen as a unifying force that is above partisan politics

This would have the benefit of ensuring that the selection of these very sensitive posts in government are made without political interference, based on the president’s judgment of the qualifications, calibre and merit of the individuals concerned, advised in this process by a senior consultative body – an issue I covered in my article of January 9, ‘Constitutional Reform’ – based on selections held either in camera or in public. 

Vesting these responsibilities in the president would give the office greater prestige and introduce necessary checks and balances on the executive. It would ensure that politically partisan appointments are avoided and that integrity and competence are the sole criteria adopted for selection to these important government positions.

As to the selection and appointment of presidents, there is a need for the current rules on eligibility to be broadened to ensure a wider choice, and greater checks on the power of the executive about who is appointed.  

The field from which the appointment of the president may be made currently excludes the chief justice from consideration, yet allows the possibility of his carrying out the duties of Acting President of Malta. 

There seems to be an anomaly here which narrows the field of choice of high calibre candidates unnecessarily. The Constitution should be amended to allow chief justices to be considered for the presidency. 

Should the appointment of a president be subject to an electoral vote? The existing system of appointment leads inevitably to political partisanship and manipulation, which should be avoided. 

Despite the impeccable quality of (political) incumbents since 1976, the propriety of usually appointing a senior active member of the party in government (in one case a former prime minister) or other politician as the person representing the whole nation and symbolising national unity might be questioned. 

One way of making the appointment of the president less overtly political would be to leave the decision on who to put forward to Parliament in the hands of the Cabinet. But for the final selection to be made on the basis of a number of nominations submitted to Cabinet by 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. 

The new president should be appointed following a vote of not less than two-thirds majority in Parliament not, as now, a simple majority, since this means that they are effectively elected or removed by the government of the day which enjoys a majority in the House of Representatives.

As to their tenure, extending the duration of presidents to a second five-year term would be fair and sensible as it would provide greater constitutional stability and continuity. A two-term option should not be automatic, however, since the House of Representatives should remain empowered to consider formally at the end of the first term whether or not to renew the appointment for a second and final term. 

To sum up, achieving the right relationship between the powers of the president and the executive in our Constitution will require a most delicate balancing act. Standing at the apex of our democratic state, it is vital that the president stays above political turmoil. 

In essence, the president exists to unify and bind the country. Any proposed constitutional changes to introduce effective checks and balances on the executive must ensure the office remains an institution to which all can cleave irrespective of political affiliation.

This is a Times of Malta print opinion piece

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