Kevin Aquilina made a number of accusations in his article ‘This is a constitutional crisis par excellence’ which appear aimed to inflict maximum damage on our country from an international, rather than local, consumption point of view.
I am penning this article in defence of our nation’s interest in these delicate and most testing times.
The revelations which have emerged from court testimonies in the horrendous murder of Daphne Caruana Galizia have sent shivers down the spine of the Maltese people for a multitude of reasons. The accusations being levelled in court and elsewhere about the alleged actions of the OPM’s former chief of staff are extremely worrying.
Nevertheless, the portrayal of the current situation as an “unprecedented constitutional crisis” is, to my mind, unjustified.
Prof. Aquilina’s assertion that there is a constutional crisis because ministers and parliamentary secretaries have failed to inform the President that another government MP is to assume the role of prime minister, or because the President has failed to summon the Labour parliamentary group to confirm or otherwise whether the prime minister still enoys their support, is flawed and devoid of any legal basis.
Joseph Muscat asked for a vote of confidence from the Labour Party parliamentary group and won unanimous backing. The Labour Party’s executive committee gave a unanimous vote of confidence to Dr Muscat. All budgetary votes were carried with the unanimous backing of Labour MPs, which translates into a further vote of confidence for Dr Muscat.
Hence, what reason would the President have to summon the parliamentary group following a unanimous triple vote of confidence? The Constitution is very clear about the role of the President: his duty to summon the Labour parliamentary group would have been activated had the prime minister suffered a vote of no-confidence in Parliament and then failed to submit his resignation or advised for dissolution of Parliament.
Not only did the prime minister not suffer a no-confidence vote but the Opposition has not even proposed one.
Prof. Aquilina’s arguments on this matter are flawed and gratuitous.
He says that “all the judiciary are and continue to be political appointees whose appointment, promotion, removal, salary and conditions of work depend on nobody other than the prime minister.
The independence of the judiciary is extremely weak”. This insinuates that it is the Labour government which has weakened the independence of the judiciary.
How can Prof. Aquilina assert that the independence of the judiciary has been weakened because removal “depends on nobody other than the prime minister”? Nothing can be further from the truth.
According to our Constitution, a member of the judiciary can only be removed from office by a vote of not less than two-thirds of all MPs on the grounds of proved inability to perform the functions of his office or proven misbehaviour.
Also, appointments to the judiciary and promotions were dependent on no one other than the prime minister up to 2016 and hence throughout the period of a Nationalist administration, the ‘palladins of the rule of law’. Since then, appointments and promotions can only be made following prior vetting by an independent Judicial Appointments Committee with the prime minister having residual power to overrule the advice of the committee but subject to an obligation to inform Parliament should the use of such a residual right be resorted to. This residual power has never been utilised.
The rule of law in our country is not as moribund as the learned professor’s article would depict it to be
Although civil society groups have instituted constitutional procedures against the way judges are appointed, the method has not changed under a Muscat administration other than to introduce a checks-and-balances mechanism. So much for the argument that the independence of the judiciary has been weakened.
Prof. Aquilina also casts a dark shadow on the investigative role of the police. His assertion came a few days after the very positive pronouncements made by a mission of MEPs from various political groupings on the workings of the police and investigative authorities on the murder.
The MEPS, which included Roberta Metsola, made comments like this: “We asked questions. We got answers and what I see gives me the feeling that yes, they are working very hard, it’s not over yet and they are doing a professional job. I can also see that Europol had a very active role – it is involved in large parts of the investigation – I cannot judge exactly what they are doing but that is confidential clearly, but yes they are doing a serious job.”
It is also pertinent to underline that in less than 50 days from the murder, three persons were arraigned in court following an extensive investigation involving Maltese and international police forces and in just over two years, and following a pardon granted to a witness, another person was arraigned and accused of commissioning the murder.
Furthermore, a public inquiry into the circumstances surrounding the murder was also launched with a board and terms of reference agreed with the victim’s family, as is only right and befitting. The board has started its work. The rule of law in our country is not as moribund as the learned professor’s article would depict it to be.
Prof. Aquilina also asserts that the doctrine of separation of powers is inexistent and that all powers are concentrated in the hands of the prime minister. This too is a gratuitous assertion. Our country is regulated by a Republican constitution and the laws which ensure the continued existence of the doctrine of separation of powers have been handed down from generation to generation.
Such laws have certainly not been impaired or diluted by the Labour government but reinforced by novel legislative and political initiatives such as the Whistleblower Act, the Commissioner for Standards Act, the creation of the Parliamentary Scrutiny Committee and the Judicial Appointments Committee, as well as the decoupling of the dual functions of the Attorney General with the creation of a State Advocate in line with the recommendations of the Venice Commission report.
Does this mean that we have reached a state of perfection in the sphere of rule of law and separation of powers? Certainly not. The government has showed that it is intent on continuing to improve these structures and systems in line with those recommendations.
In order to continue to strengthen the pillars which underpin democracy in our country, this is the way forward for a Labour government under a new prime minister.
So, yes, there is still work to be done, there is definitely room for improvement. It cannot be denied that mistakes have been made and that decisions which should have been taken were not taken or not taken in a timely manner.
But to say that our country is in the midst of an “unprecedented constitutional crises” does not hold water except, perhaps, on one count.
The real constitutional crisis is the complete absence of a true Opposition. In such testing times when one would have expected it to be the shining light and focal point of the siege on government, the Nationalist Party has shown itself to be weak to the point of irrelevance. It has been pushed aside by civil society groups which have proved to be the true opposition to the party in government.
It is my strong belief that, at the end of the day, when the hurly burly’s done and the battle is lost and won, we shall witness a Labour Party in government which, while certainly not emerging unscathed, will be stronger, united and fortified under a new leader. While the Nationalist Party would still be trying to come to terms with its continued weakness as an alternative government.
Chris Cilia is a lawyer.
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