There is no provision in the Constitution of Malta referring to, let alone setting out the role of, a caretaker government. However, it can safely be stated that a constitutional convention has emerged and has been observed since Independence, to the effect that when Parliament is dissolved and a general election is called, a caretaker government comes into being.

...A more democratic solution to the power of incumbency dilemma is for the President to take over the governance of the country- Kevin Aquilina

This is because with the dissolution of Parliament, the executive is no longer responsible to Parliament and the provision in article 79(2) of the Constitution that states that Cabinet ‘”shall be collectively responsible therefor to Parliament” comes to naught.

To a certain extent the caretaker government convention can be considered to be a corollary principle to the doctrine of collective ministerial responsibility. Once a general election brings with it a change of government, the incumbent government assumes the role of a caretaker government. This means that no decisions should be taken in the interregnum between a dissolution of Parliament and the formation of a new Cabinet which would bind a new Cabinet in a way that the latter would not be able to undo such a measure.

For instance, a vacancy might arise within the judiciary and an advocate is appointed in the interregnum between dissolution of Cabinet and the formation of a new Cabinet to fill in that vacancy. As things stand today it is Cabinet which decides to fill in that vacancy. However that decision will bind a future government because if the new government does not agree with that appointment nothing can be done to remove the advocate from judicial office once removal of a member of a judiciary requires a two-thirds majority vote of the House of Representatives. The new government is lumped with that decision with no remedies.

In Queensland, it is stated that “the basic caretaker conventions require a government to avoid implementing major policy initiatives, making appointments of significance or entering into major contracts or undertakings during the caretaker period”. Abroad, states have their own published guidelines or handbooks as to how government should behave during the interregnum to respect the caretaker convention.

In Malta we do have something similar although, admittedly, very scant and needing further amplification. The Office of the Prime Minister has, since 1992, been issuing a directive to the public administration – by which I understand the public service and the public sector – that recruitment, promotions and other action concerning public officers and employees in parastatal organisations and in companies with a government interest come to a halt. The latest OPM Circular No 1/2013 dated January 7, 2013 setting out this directive establishes a Monitoring Committee to ease out any difficulties where needed.

Although this is a laudable measure, it does not go so far as is the position in other countries when regulating the caretaker convention. Indeed, Alfred Sant, when Leader of the Opposition, criticised the power of incumbency, that is, the power which a caretaker government has in order to influence the electoral decision. A caretaker government should ensure that such power is not exercised by the government of the day and in order to ensure that such power of incumbency is not resorted to, rules have to be put in place setting out what are the permissible measures which a caretaker government may take or withhold from taking, in addition to those contemplated in OPM Circular No 1/2013.

Ideally we should go beyond a caretaker government composed of ministers. A preferred and more democratic solution to the power of incumbency dilemma is for the President to take over the governance of the country in the interregnum, where he appoints a technocratic government to serve for the period between dissolution of Parliament and the election of a new government. This technocratic government could well be composed of the President and Permanent Secretaries who should continue the government of Malta in the absence of ministers.

This will ensure continuity in government but at the same time ensures that fairness is introduced in the electoral process. The political party in government and all political parties in opposition will now be on the same footing. The party in government will not enjoy an unfair advantage over the parties in opposition as is the position today and as has been the position since Independence.

In the meantime the ministers’ appointment ceases on dissolution of Parliament. It would ensure that ministers do not use the government machinery at this delicate moment in time to advance their own political partisan interests. It would curtail abuse by ministers and parliamentary secretaries who might try to use government finances and resources for their own political campaign or attempt to influence the public broadcasting station in depicting the caretaker government in good light. By placing government departments, agencies and parastatal organisations under the responsibility of permanent secretaries who, in turn, will be responsible to the President, one ensures that these entities do not involve themselves in partisan politics at such delicate time in a democracy’s lifetime.

The same should apply to ministers’ and parliamentary secretaries’ staff. They should be deployed in government departments in the interregnum so that they will not be tempted to use the government machinery for partisan political ends. Permanent secretaries should take over the running of the country to ensure that ministries are complying with their neutrality obligation not to side with any political party contesting the general election. Fairness and undue advantage should be the rules to guide the public service and the public sector in this delicate and transitional moment in a democracy’s lifetime. Once a political party wins the general election then the President and permanent secretaries will be relieved of such onerous duties which will be passed on to the elected representatives of the people.

Again, there should be a mechanism whereby the Opposition can voice its concerns if it thinks that the caretaker government is not acting in a neutral way and is unfairly advantaging the party in government. The President of Malta should be empowered to give all the necessary directives to the technocrat caretaker government to ensure that the public administration is politically neutral. Not only so, but should the need arise the President should be empowered to issue sanctions to any transgressor, such as by imposing a fine, suspending a public officer from office, instructing the Public Service Commission or other competent body to take the necessary disciplinary procedures or dismissing from public officers contraveners, etc. Government advertising during this period should cease so as not to give an undue advantage to the party in government.

Proper political behaviour requires that in the interregnum all the necessary measures are taken so that a correct electoral process is conducted and whichever party wins the general election does so in a fair way.

The Constitution should also be amended so that the electoral campaign is reduced to a maximum five to six week period.

Prof. Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.

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