The Ombudsman, Anthony Mifsud, has presented his annual review of the state of Malta’s governance in 2019. He described the year as one of “turmoil that brought about drastic changes in civil society, public administration and government”.

The Ombudsman criticised the “arrogant, obsessive” and dangerous culture of impunity enjoyed by those with the right connections to the government. He deplored the fragility of national institutions which were meant to ensure accountability of the public administration.

He reported that 2019 was the year when civil society asserted itself, appalled by the dramatic events that exposed corrupt ties between big business and the public administration. He considered that these changes were bound to leave a lasting impact on the country’s way of life, how it is administered and, hopefully would lead to the strengthening of the checks and balances required to secure the rule of law and curb abuse of power. The Ombudsman’s report has exposed the long-standing fragility of Malta’s institutions. The authorities and institutions meant to keep the administration under scrutiny, to curb abuse and enforce the rule of law have been found lacking. Urgent constitutional, political and legislative measures are needed “to stop the rot”.

One of the proposals revived by Mifsud in his report is the possibility of forming a ‘Council of State’, an idea first mooted in 1988 but never adopted. In 2009 it was resuscitated by former president George Abela. It was also highlighted in a comprehensive review of the Constitution of Malta in 2014 by the now-defunct think tank, the Today Public Policy Institute.

In his proposal, the Ombudsman favours the model in place in small EU nations like the Netherlands, Belgium and Luxembourg. The Council of State would be presided over by the President of Malta and would offer advice to the government on “public affairs” (presumably defined matters of public interest).

As for the composition of the council, he proposes that its members “should enjoy the respect and trust of the country”. He suggests as candidates “former presidents, prime ministers, chief justices, ombudsmen, auditor generals and commissioners of standards in public life”.   

Specifically, Mifsud envisages wide-ranging responsibilities for the council. It might be consulted by the cabinet on proposed legislation before a bill is tabled in parliament to ensure bills conform with the Constitution, international conventions and fundamental human rights.

The body would also have a general overview responsibility for the public administration’s observance of the rule of law. He also suggests that it be involved in the process of selecting holders of high offices and institutions established under the Constitution.

In sum, he sees it as another step towards the decentralisation of power, as well as another check on the exercise of executive power.

There can be little doubt that the Ombudsman’s proposal merits close consideration by the ongoing, albeit quiescent, Constitutional Convention. Clearly, the convention would need to consider the need for defined and limited areas of governance to fall under the council’s remit to avoid ‘constitutional mission creep’ and an overload that might hinder Malta’s unicameral system of government.

The process for selecting members of the council, either by the president independently or through some means of ‘Electoral College’, would also require careful thought.

On balance, a Council of State, properly constituted, may be able to exercise sorely needed moral authority to prevent Malta’s governance from deteriorating so excessively again in future.   

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