A defective anti-deadlock mechanism for the Standards Commissioner

By means of Bill No. 34 of 27 December 2022, the Standards in Public Life (Amendment) Act, 2022, government is proposing to the House of Representatives the addition of an antideadlock mechanism to the Standards in Public Life Act, Chapter 570 of the Laws

"… if the Resolution [to appoint a Standards Commissioner] when put to the vote is not supported by the votes of not less than two-thirds of all the members of the House, a second vote on the Resolution shall be taken not earlier than seven (7) days from the first vote which shall also require the votes of not less than twothirds of all the members of the House, and if at the second vote the Resolution is not supported by the votes of not less than twothirds of all the members of the House, a third vote on the Resolution shall be taken not earlier than seven (7) days from the second vote and at the said third vote the Resolution shall be approved provided that it is supported by the majority of the votes of all the members of the House, and in this case the President of Malta shall act according to the Resolution as approved:

Provided further that when a second or a third vote are to be taken, new candidates for the office of Commissioner may be nominated together with any other nominated candidates, before the taking of the second and the third vote;

Provided further that when a person who is not a member of the House is elected to be the Speaker of the House, the said person shall not be considered to be a member of the House for the purpose of establishing the majority required by this article.”

The Objects and reasons of this Bill read as follows: “The objects and reasons of this Bill are to amend the Standards in Public Life Act to provide for an antideadlock mechanism in the appointment process of the Commissioner for Standards in Public Life where a resolution of the House of Representatives supported by the votes of not less than two-thirds of all the members of the House is not attained after two votes.”

The background to this Bill is that the Prime Minister and the Leader of the Opposition have not agreed upon the nomination of a suitable candidate to fill the Office of Standards Commissioner. From what has been reported in the media, during discussions between these two State officers, it was mooted to appoint retired Judge Joseph Zammit McKeon as Parliamentary Ombudsman – on whom agreement was reached – and Chief Justice Emeritus Joseph Azzopardi – on whom no agreement was reached – as Standards Commissioner. It is not clear why the Opposition has opposed the appointment of Chief Justice Emeritus Azzopardi to the said post.

Once the confidential negotiations have been rendered public, the Leader of the Opposition is now obliged to state publicly why he is objecting to this appointment. There is no doubt that the retired Chief Justice, like Judge Zammit McKeon, is a person of integrity and, therefore, it is incumbent upon the Leader of the Opposition to publicly back up his objection by concrete reasons for his stance, if he is really objecting to the appointment. Yet, so far, the Leader of the Opposition has left us totally in the dark on his objection, thereby giving the impression that his objection is capricious and spiteful.

This does not mean that the Prime Minister, on his part, is without blame. For it is he who has dragged his feet, for nearly two years to ensure that the Office of Ombudsman is not left vacant. Indeed, it was only lately that a motion was tabled in the House on 18 November 2022 by the Prime Minister so that Judge Zammit McKeon be appointed Ombudsman. If both the Prime Minister and the Leader of the Opposition agree therewith, why has this motion not yet been approved? Why is the government keeping this motion in suspended animation until agreement is reached on the Office of Standards Commissioner? If no such agreement is reached, why has not government given priority to the enactment of the anti-deadlock mechanism Bill to ensure that a Standards Commissioner is appointed without any further delay?

Indeed, there is no direct or indirect connection between these two offices of state. The Ombudsman, a constitutional office, is totally distinct from that of Standards Commissioner that is not established by the Constitution but by ordinary law. Yet the game that the Prime Minister and the Leader of the Opposition are playing is derisive of the rule of law.

This dragging of feet by the Prime Minister to have this Ombudsman appointment approved is unconstitutional for the Constitution requires that there is in office an Ombudsman – not an Acting Ombudsman – bearing in mind that nearly two years have elapsed since the Office became vacant, while the game the Leader of the Opposition is playing to tarnish the reputation of a retired Chief Justice without publicly stating his reasons for objection thereto is very unfair on the retired Chief Justice who has been faultlessly dragged in the political arena.

The anti-deadlock mechanism that the Bill is proposing is not without fault. In fact, it gives the final say to the government when government and Opposition do not agree on a suitable candidate for nomination to the Office of Standards Commissioner. But this impasse should not be decided by one of the interested parties but by an independent party. Rather than having a fake anti-deadlock mechanism enacted into law as government is proposing, it should be the President of Malta who should be empowered by law to step in and, in the absence of an agreement within one week from when the vacancy occurs, fill in that Office following consultation with the government and Opposition. In this way, a neutral third party, who has no vested interest in the outcome of the appointment and who is above party politics, ensures that the provisions of the Constitution are complied with and that the rule of law prevails.

Is it too much to ask that the national interest and common sense prevail over petty political partisan interests?