With all the hullabaloo created by several political and non-political developments in recent weeks, certain legislative proposals are not being given the attention they deserve. Currently in parliament two bills are being discussed to amend the Constitution in several ways. I shall limit myself to three main innovations.
The first is that the President of Malta be elected by two-thirds majority of all MPs. This proposal had been first suggested by the opposition.
The government did not even make this proposal when the Venice Commission held virtual talks with political stakeholders last May.
One fine day we all woke up to the news, leaked to the media before any bill had been published, that the president would be elected by this new procedure.
When the bill was eventually published, however, it emerged that if the two- thirds majority is not achieved, then the government, by a majority of one in the legislature, may appoint the head of state itself.
This fall-back position renders the principal rule relating to two-thirds practically useless. All the government needs to do to appoint its own candidate in the highest constitutional position is to wait for two rounds of voting; at the third round it may appoint the president it wishes, in spite of disagreement with the opposition, by a simple majority.
The opposition firmly advocated no fall-back position, even more so when one considers that the head of state will have the final say on the appointment of judges and magistrates.
As the law stands today, there are four constitutional positions which require a two-thirds majority for the holder to be appointed. These are the auditor general, the deputy auditor general, the ombudsman and the commissioner for standards. Irrespective of who has been in government, Nationalist or Labour, an agreement was always reached on the appointment of the holders of such offices. Why not with the appointment of the president of Malta?
In any case, if such majority is not reached, the government can always appoint an acting president until a two- thirds majority is achieved, or else apply the constitutional provision that when the position of president is vacant, and no acting president is appointed, the speaker of the House of Representatives automatically and temporarily assumes that position.
The government can always appoint an acting president until a two-thirds majority is achieved- Tonio Borg
Last April, news broke that an agreement had been reached between the government and opposition on the appointment of the chief justice and the method of appointment of members of the judiciary. The chief justice was to be appointed by a two-thirds of all the members of the legislature. That is what happened with the appointment of Mr Justice Mark Chetcuti to that post. The appointment of members of the bench was to be made on the basis of nominations made by an appointments committee in which the members of the judiciary would constitute a majority.
The bill on this point diverges from this agreement. It states, as in the case of the President of Malta, that if no agreement to appoint a chief justice by two-thirds is reached after two rounds of voting, the government by a simple majority of one in parliament may appoint the holder of this high office itself.
In this case, a more reasonable approach and fall-back position could have been adopted, namely, the temporary, automatic appointment of the most senior judge to perform the functions of acting chief justice until an agreement is reached.
The third point to which I find objection is the new method of removal of members of the judiciary. As the law stands today, a member of the judiciary is removed from office for proved inability to perform his functions (mental or physical) and proved serious misbehaviour. The facts are examined by the Commission for the Administration of Justice in which the members of the judiciary enjoy an inbuilt majority (five out of nine ); and then if the green light is given by such an assembly, the matter is debated in parliament and such removal needs to be supported by at least a two-thirds majority of all the members of the house.
The bill proposes that the two-hirds guarantee of security of tenure be deleted and a judge or magistrate may be removed from office by a simple majority of one by the aforementioned commission, with a right of appeal to the Constitutional Court. This means that a chief justice appointed by a two- thirds majority in Parliament is not similarly dismissed but may be removed from office by a majority of one inside the commission.
As to the objection to the participation of a political organ, namely parliament, in the removal of judges, one must recall that that this is the position in the UK, where removal of a judge is made by both houses of parliament – without the need of a special majority one might add, as well as in the US, where any federal judge may be impeached and then removed by a two-thirds majority in the senate. If it is perfectly in order for such a removal procedure involving the legislature as a political organ in the case of two of the leading countries of the free world, why not in Malta as well?
The government has promised to take into consideration the proposals made by the opposition. It is indeed baffling how the government is pushing these changes – which incidentally need the approval of the opposition to become law, without first agreeing with the opposition whose approval is required.
The opposition has made it clear that it expects certain changes to be introduced.
It would be a pity that once one has reached this stage, the government were to stubbornly refuse to reach an agreement on such important issues, to send a clear message that, on matters of national and public interest , it is possible for both political parties in parliament to reach a fruitful agreement.
Tonio Borg is a former European Commissioner.