Ex-presidents, prime ministers and chief justices should sit on an independent state body serving as an extra layer of scrutiny on the government, the parliamentary ombudsman has suggested.

In his annual report, Anthony Mifsud revived the idea of a Council of State, first proposed as far back as 1988 but never adopted by the government.

In his proposal, the ombudsman favours the model in place in small EU nations like Belgium, the Netherlands and Luxembourg.

It would be presided by the president and would offer advice on public affairs or be consulted by the cabinet on proposed legislation before a bill is tabled in parliament.

He suggests it would help ensure bills conform with the constitution, international conventions and fundamental human rights.

The body would also have a general overview of, and opinion on, whether public administration is observing rule of law.

Mifsud goes as far as to suggest that it be involved in the process of selecting high offices, authorities and institutions set up by the constitution.

However, he warns against giving it executive powers as this would turn it into a second chamber, which in other countries is known as the Senate or the House of Lords in the UK.  This option was discarded under the 1947 self-government constitution for being “cumbersome and financially unsustainable”, the ombudsman warns.

As for the composition of this body, Mifsud says its members should “enjoy the respect and trust of the country” and suggests former presidents, prime ministers, chief justices, ombudsmen, auditor generals and commissioners of standards in public life.

It would be another step towards the decentralisation of power and a check on the exercise of power by those entrusted by the people to administer the common good, the ombudsman says.

However, he warns that in order for council members to be fit for purpose, it would be wise to analyse if the country’s legislation ensures that institutions and authorities satisfy key requirements such as integrity, autonomy and independence.

The proposal has been previously mooted by University of Malta law professor Kevin Aquilina in 2012, and before that by a select committee of the House of Representatives in 1988. In 2009, former president George Abela revived the idea in his Republic Day address.

Aquilina had expressed himself in favour of such an advisory body, saying this would be useful in situations whereby the president would find himself opposed to the country’s institutions and, possibly, the government.

He was against having the incumbent prime minister and opposition leader on the council, arguing they would have an “apparent institutional conflict of interest”.

Aquilina had also excluded sitting and retired members of the judiciary including former chief justices, in order to ensure a clear separation of powers.

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