The Malta Independent on Sunday
Time for a second republic
The President’s Forum Does Malta’s Constitution still cater for the people’s needs?
This book contains the speeches made and the papers presented at the second President’s Forum held on 21 April 2012 and the third one held on 25 April 2013 on the initiative of then President George Abela.
The first comment one has to make is that unfortunately this initiative was not followed up. No President’s Forum has been held under the current President so any interest in following the two which make up this book has been lost.
And, as we shall see, despite some rather minor constitutional changes, the main issues have been left untackled.
Not all the contributions are of equal importance. I will here be referring to those that I feel are important and indeed vital.
Seeing that the subject is the vexed question whether Malta’s 1964 Constitution needs to be upgraded or even changed from top to bottom to reflect changed circumstances, quite understandably the most important presentations come from the legal field.
I had referred to it in one of my Sunday articles on this paper. Perhaps the most explosive presentation was that presented by Judge Giovanni Bonello.
In his inimitable style he speaks of the shambles that successive court sentences and successive Parliaments have made of the original Constitutional cornerstone regarding the Constitutional Court.
Judge Bonello does not mince his words: “The Constitutional Court of Malta is advocating firstly that laws which it annuls as unconstitutional remain valid and enforceable if Parliament does not repeal them, Secondly, that when, in a court action for nullity of a law, it strikes down that law as null and void, that nullity affects the plaintiff in that action but the law remains valid for everyone else… With these two propositions, the Constitutional Court has betrayed the Constitution and made it a travesty of itself.”
Democratic constitutions fall into two categories: the vast majority (including Malta’s) say the Constitution is supreme while others, notably the British, consider Parliament as supreme.
“This betrayal of the spirit and letter of the Constitution forms part of our ever-so-luxuriant neo-colonial grove which the Constitutional Court waters daily and fertilizes weekly.”
“The courts, oblivious to the strident dictates of the Constitution itself, have gone on accepting meekly that they should keep out of Parliament’s way: let Parliament have the last say.”
Parliament thus becomes judge and jury over laws made by Parliament itself, if you can believe this.
On 6 September 2010, the Constitutional Court (case Joseph Muscat vs Prim Ministru) found a law establishing compulsory arbitration in some traffic accidents to be valid, as it was in conformity with the human rights provisions of the Constitution. On 30 September 2011, the Constitutional Court, in a lawsuit instituted by a different plaintiff (H. Vassallo & Sons Ltd vs Avukat Generali) ruled that the same law on compulsory arbitration was void as it violated the same human rights provisions of that same Constitution.
Some countries, Judge Bonello concludes, list the subversion of the Constitution as a grave criminal offence. In Malta, where the subversion of the Constitution is practised openly, cheerfully, without violence, under the distinguished patronage of the Constitutional Court, it is the trivial pursuit of the three powers of the state.
The Dean of the Faculty of Laws at the University, Professor Kevin Aquilina, is even more scathing in his appraisal. Instead of using the term Prime Minister, he uses the term the Executive.
“The doctrine of separation of powers is very feeble within the Maltese Constitutional legal system to the great advantage of the Executive and to the absolute detriment of the Legislature and the Judiciary.
“There is too much concentration of powers in the Executive: • The Executive controls the House of Representatives through a majority it enjoys in the House • The President of Malta invariably has to act on the advice of Cabinet • Constitutional commissions, the Broadcasting Authority, and other public offices such as the Attorney General are appointed by the Executive • The Executive decides which treaties are to be adhered to and not all treaties adhered to by Malta need parliamentary approval • The Executive decides who is to be appointed to the Judiciary (this has been recently changed), the Attorney General, Permanent Secretaries, Heads of Departments and other public officers • Where the Executive is not the decision-making body as to appointments, it partakes in the appointment of Speaker, Deputy Speaker, Ombudsman and Auditor General • There are few effective controls which can be exercised over the Executive, considering that the Executive controls Parliament and to a large extent the President of Malta and the Judiciary have given up their constitutional right to enforce human rights and fundamental freedoms erga omnes. • Governmental accountability is
very limited • Transparency in government is
also very limited • The prime minister or his ministers have introduced several laws to deprive public corporations of their characteristic trait – independence from government. In other words, the prime minister is the elected legal dictator of Malta.
Professor of Public Law at the University, Ian Refalo, also ques- tions the reasons for the existence of a Constitutional Court. He would rather see its functions taken over by a supreme court as in other countries. His reasons are mainly procedural, that is, in the workings of the courts.
He also goes back to the basics of the Constitution, a point also raised by former Chief Justice and Ombudsman Joseph Said Pullicino, that our Constitution still reeks of its British origin where power devolves from the Sovereign downwards and contrasts it with, for example, the Italian Constitution that speaks of power emanating from the people. When it came to major constitutional change, from a monarchy to a republic, the change was made by Parliament, through agreement between the parties although there was the proviso that the party winning the next election had the right, if it so wished, to revert the situation to how it was prior to the change.
This was, as Prof. Refalo terms it, “lip-service” to the idea that the Constitution came from the people.
There are other contributions and presentations, from then Speaker Michael Frendo, from then US Ambassador Douglas Kmiec, from Professor Dominic Fenech, and others.
All touch in one way or another on whether the Constitution needs changing, on whether the President should be given additional powers, etc. It is indeed a pity that after this effervescence of ideas, everything has died down and we are left tinkering with this or that Constitutional rule instead of kick-starting an organised discussion on what needs to be done and getting all sectors of the population to discuss the issue and maybe come to some sort of agreement.
Then I look around me at the current election campaign and I see why we cannot get such a simple discussion off the ground without being at each other’s throats.