Following his announcement of a three-month public consultation process on constitutional reform, President George Vella informed this newspaper that “the [major political parties] will definitely not be in a position to impose their decisions on the rest of the representatives of society”. He is determined to give ample space for civil society’s views.
This is an encouraging statement coming at the start of this longawaited constitutional reform process.
It is an initiative that had its genesis in the Labour Party’s manifesto commitment six years ago which declared, rather grandiloquently, that it would “hold a Constitutional Convention that will give birth to the Second Republic”.
The President’s address at the start of this legislature in 2017 placed the reform of the Constitution top of the government agenda. Two years later, the real work is just beginning.
It is not yet clear what shape the Constitutional Convention will take. It is vital that, following the public consultation period, it should be informed and underpinned by a sound assessment of where the Constitution stands today, its strengths and weaknesses and how it might be improved for the greater national good. It will be pointless to cherry-pick aspects of it without recognising that each action could have an equal and opposite reaction. The Constitution must work as an organic whole.
The Convention should listen carefully to those in the academic and legal fields who have made a careful study of the Constitution. But also, most importantly, it should hear from those who have worked at the political coal-face, including former prime ministers and presidents. They, more than anybody, know where the constitutional wrinkles lie and also the political realities of any proposed changes.
The Constitution represents the bedrock of the democratic governance of Mata. It is the rule book regulating Malta’s governing institutions. It constitutes the supreme law.
What happens to our constitution is of direct interest to all citizens. While the Independence Constitution, which came into being 55 years ago, has served Malta well – despite some deficiencies which events over the last few years have exposed – it is difficult to make a case for completely re-writing it. But there are undoubtedly important aspects which need urgent revision.
There is one inescapable and overriding issue which should dominate the consideration and combined intellectual effort of the Constitutional Convention.
The publication of a sweeping report by the Venice Commission shone an uncomfortable light on the urgent need for a comprehensive review of how the checks and balances under our Constitution operate. This issue lies at the heart of criticisms concerning the rule of law that must be addressed.
The heart of the challenge stems from the accumulation of powers in the executive, and specifically the Office of the Prime Minister. The concentration of power in the Prime Minister’s hands is unhealthy. The PM appoints the Cabinet. The executive controls the House of Representatives (the legislature) through its electoral majority. Every constitutional commission, independent institution and all top public officers are appointed by the executive. 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 through his control of the parliamentary majority.
Moreover, although there is now a formal selection process, members of the judiciary, the third arm of government, are in effect still appointed by the executive.
The need for greater checks and balances and more transparency and accountability of the executive is now paramount if the telling criticisms over governance to which this country has been subjected is to become a thing of the past.
This is the kernel of the problem. It is the paramount issue to be addressed by the Constitutional Convention.
Successful democracy requires the two pillars of a cohesive working state and the rule of law to be firmly established. Neither democracy nor the economy can flourish effectively in the absence of a competent state. The Constitutional Convention presents a crucial opportunity to restore international respect for Malta’s democracy and a once in a generation opportunity to take a hard look at the way its Constitution operates.