In his article ‘Constitutional reform: the way forward’ (January 11), Edward Zammit Lewis listed constitutional changes but he was scant on the way forward.

What is needed is not patching but reform. The constitution is verbose, repetitive, sometimes ambiguous or conflicting. The constitutional reform committee is dead in the water.

Executive authority is vested in the president, which she exercises either directly or through subordinate officers.

The president acts according to her own initiative or on the advice of other people or authorities. No court can enquire whether the president receives or acts on advice. These two cardinal provisions are invariably overlooked.

A major issue is separation of powers. A bloated cabinet rules over parliament. The judiciary is partly separate. If, according to Zammit Lewis, the president is not to lead constitutional reform, all the more the president is not to appoint judges.

Presidents are to wield the power they have. Very rarely they wield power they do not have.

The president said recently, in an interview, that abortion and euthanasia require “profound discussions”. Heads of state do not usually give interviews to programme presenters on the media. Heads of state address the nation. All things being equal, we follow the Westminster model in the breach.

In the interview, the president opined that the introduction of abortion and euthanasia was a matter of “when” not “if”. That meant that “profound discussions” are useless.

The Malta Community Chest Fund lies outside the constitution. As was Paqpaqli għall-Istrina. The latter was folded up after the 2015 accident. That compromised the presidency. So could the Malta Community Chest Fund. Its supervisory council is chaired by the president. State medical care is not charity but a right. At one time, the financial management of the Malta Community Chest Fund was questionable. At best, the president is to be patron.

In the same interview, the president said she works “behind the scenes”. The president does that primarily in her audiences with the prime minister. She is a bona mater familias. According to Walter Bagehot, the head of state counsels, encourages and warns. But, over and above that, the president is to work on stage.

The constitution mentions “advice”. Advice includes requests, opinions, recommendations and consultations. It occurs 49 times, of which 23 are the prime minister’s. A recommendation could also be mandatory, articles 44(6), 73, 86(1), 96(1), 100(1), 101A (13), 110. 

The presidency has no official advisor. ‘A Review of the Constitution of Malta at Fifty: Rectification or Redesign?’ (2014), by Michael Frendo and Martin Scicluna, recommends an advisory body, a council of state. It is to be “composed of individuals selected by the President from among a broad range of civil society”. The president “should have recourse to the Council of State”.

A council of state does not involve a presidential system or a bicameral parliament.

The Frendo and Scicluna report and ‘The Constitution of Malta at Sixty’ (Tonio Borg and John Stanton, editors, 2024), are wary. The Frendo report concedes that the system is to be “reined in by proper checks and balances”. But in a presidential system parliament and cabinet are separate.

The president has six prerogatives. Only in one of those prerogatives does the president act on her own initiative, that is, where she makes appointment to any office. But when has any president ever done that? In terms of the Malta Armed Forces Act, the president is the commander-in-chief. “Advice” is required solely for court-martials. Under the Police Act, the president has less power than senior policemen.

The president cannot be held in breach of the constitution. Parliament alone can remove the president- Victor Zammit

The prerogative of mercy is unique. Mercy partakes of the divine. The president exercises it on her own initiative.

The pardon to suspects in the social benefits racket was granted on the advice of cabinet. Cabinet advice interferes with the course of justice. A judge may recommend a pardon. Cabinet cannot overrule a judge.

A pardon cannot be granted collectively or in anticipation of judicial proceedings. It is granted to “any person concerned in or convicted of any offence”. Yet, suspects, innocent or otherwise, are still being brought to court. That pardon is invalid.

The attorney general was adviser to the government. In 2019, the state advocate took over. He safeguards the public interest. The December 2, 2024 judgment by the court of appeal in the Vitals/Steward case affirmed his autonomy. He acts in his individual judgment and is not subject to the direction or control of any person or authority. But the government is his client.

The state advocate cannot serve two masters without having a conflict of interest. What squares the circle is that cabinet cannot remove the state advocate unless the opposition agreed because the state advocate has tenure of office.

The attorney general is to return to his former role and the state advocate is to be named prosecutor general. “State Advocate” is a misnomer.

Closely related to advice is assent to legislation. When a bill is presented for her signature, the president “shall assent without delay”. Once the president has tenure of office, she need not fear removal or go abroad or resign if she does not assent. Normally, a bill is amended or withdrawn. The president cannot be held in breach of the constitution. Parliament alone can remove the president. The opposition will not vote to remove a president for not assenting to a bill the opposition voted against.

Zammit Lewis wrote about strengthening the Permanent Commission Against Corruption. Since 1988, investigations by the commission have resulted in one court prosecution. Persons exonerated by the commission have been prosecuted.

The commission finds it difficult to prove corruption beyond reasonable doubt. So, either magisterial inquiries are below standard or that corruption laughs last and best.

What is certain is that the commission lies permanently in limbo.

In 2020, Malta faced a constitutional crisis which culminated in 2023 with the Vitals/Steward appeals court judgment. That is without precedent in Maltese legal history. The president would have had good reason to call a general election.

A general election is the epitome of democracy. A snap election is its antithesis. Snap elections are political opportunism. Here, the constitution has a black hole.

A snap election provokes premature dissolution of parliament. But the president can refuse dissolution of parliament.

It follows that the president can refuse a snap election.

There should be fixed-term general elections.

The constitution is in dire need of reform. And the president of advice. The latter to rid the presidency of the ceremonial myth and for the president to walk the talk.

Victor Zammit is a lawyer.