Any discussion of changes to the Constitution of Malta should always be guided by the words of Chief Justice Emeritus J.J Cremona, the father of the Constitution: “It is well to remember that no Constitution operates in a vacuum. What essentially secures the good working of a Constitution in a democratic society is a proper sense of responsibility, allegiance to the rule of law and sensitiveness to the just demands of liberty on the part of those who govern…”
Following a report by the group of rule-of-law experts, the Venice Commission, the government has been busy on a number of bills in line with the commission’s recommendations to strengthen Malta’s rule of law.
The government hopes to pass a batch of bills before the House of Representatives rises for the summer recess this week.
There are three issues that have caught the eye. The first is a bill designed to give the Auditor General more powers if he unearths cases of corruption in the course of an investigation. Under the new powers he will be able to refer the case directly to the Attorney General, who will decide whether to prosecute the suspects.
Given the thoroughness of National Audit Office investigations, it would be a brave AG who would not prosecute. And if he chose not to prosecute, his decision could be challenged under judicial review. Such a right would also be granted to the Permanent Commission against Corruption, the Commissioner for Standards in Public Life, and the Ombudsman as well as the injured party. These bills represent a welcome and overdue tightening of the anti-corruption screw.
The second noteworthy issue is a bill dealing with the government’s abuse of so-called positions of trust. Perversely, the government’s bill fails to tackle the nub of the problem: the number of positions which may be allowed. There must be a more ordered and objective method of recruitment than the loose arrangement proposed in the bill, focusing on specific, named posts perhaps numbering not more than 50 throughout government.
The third issue concerns the so-called anti-deadlock mechanism proposed in the bills affecting the posts of ombudsman, auditor general, deputy auditor general and commissioner for standards – none of whom has ever failed to obtain the two-thirds vote required in the House.
The anti-deadlock mechanism has come about because the government – in an innovation of its own volition – has proposed a bill for the election of the president by a two-thirds parliamentary majority vote, together with some extension of his powers. The issues of the appointment of the president and the anti-deadlock mechanism have become intertwined, and they should not be.
In proposing this bill the government has lost sight of the wider picture. The president’s position as Head of State is uniquely different from those other, largely non-controversial important posts. It is indeed a key issue which should merit full and careful consideration in President George Vella’s reform of the constitution, which started over a year ago but appears to have died a death. It needs urgent resuscitation.
The way the president is appointed, whether he should have additional personal powers vested in him, advised perhaps by some form of Council of State, are wide-ranging constitutional issues that cannot and should not be dealt with in dribs and drabsin isolation.
The anti-deadlock mechanism belongs with that wider strategic discussion. The bill should be withdrawn.