Parliamentary Secretary calls for 'objective review' of Constitution

Parliamentary Secretary Carm Mifsud Bonnici has called for an objective review of the Constitution, while retaining the basic principles and rights it enshrines.

Dr Mifsud Bonnici said the Constitution had been amended several times since it was originally drafted in 1964 and one needed to examine whether it was as clear as it originally was or whether there were pockets which needed to be improved, including the internal workings of the various constitutional institutions as well as the executive, the judiciary and Parliament.

He was speaking in Parliament on Wednesday when the House started to debate Constitutional amendments to entrench the Office of the Ombudsman and to raise the retirement age of magistrates and the Attorney General to 65. Both sides of the House have expressed agreement over the amendments.

Dr Mifsud Bonnici said it was positive that magistrates would be able to work up to 65 and there was nothing to stop them from leaving if they wanted to step down earlier.

This Bill, he said, was removing the anomalies mentioned earlier by the Prime Minister - the difference from the retirement age of judges and the anomalous situation with regard to when the magistrates could start receiving their pension.

This Bill was recognition of the useful and important work which magistrates performed for the country and it was good to put the career of magistrate at the same level as that of judge.

The same provisions would also apply to the Attorney General whose service was also very important for the state. Had this Bill not been moved, the AG would have had to retire at 60 while his staff could have continued to work up to 65!

Reacting to opposition comments on the Ombudsman, Dr Mifsud Bonnici said the vast majority of recommendations made by the Ombudsman were taken up by the government and its departments. The office was continuously improving in both the quantity and quality of its work. The fact that the post was currently held by a former Chief Justice added a stronger legal content to the recommendations.

The entrenchment of the Ombudsman in the Constitution was a wise decision, giving that office the protection it deserved.

He did not at all mind the suggestion by the Ombudsman, Prof. Said Pullicino, to include a new declaration in article two of the Constitution on the right to good public administration. That was actually coming more to the fore with the setting up of the Administrative Tribunal, which was recently discussed in the House.

Indeed, Dr Mifsud Bonnici said, he felt that alone with the inclusion of this principle one should take a fresh, objective look at the Constitution with a view to amending what needed to be amended, such as, for example, the workings of constitutional bodies, obviously without changing the principles.

Furthermore, one could in future, as the Office of the Ombudsman developed, go into greater detail of what an Ombudsman could and could not investigate and he would welcome suggestions on this from the Ombudsman himself.

The office had gained the people's respect and confidence and the government would continue to strengthen it.

Labour MP Jose Herrera said the time had come for the retirement age of magistrates to be raised to 65, not so much for pension reasons but for the fact that the country needed to realise the experience of these people for a longer time.

At 60, magistrates were at their best and should not be retiring.

Dr Herrera said he personally agreed with hierarchy in the judiciary. The role of a magistrate was inferior to that of a judge, as laid down by the Constitution and in view of their different competences. Judges even had the authority to annul laws passed by Parliament, something which magistrates could not do.

He did not agree that the retirement age of magistrates should be the same as that of judges, not just because of prestige but because judges were appointed late in their careers, they should be allowed to serve for longer. It was only in Malta, among all European countries, that judges retired at 65 and he felt they should be given the opportunity to serve for longer. In many countries they retired at 70 or 75. Another difficulty in Malta was that the pension of judges was "peanuts". As a result judges who were about to retire could have the temptation to seek appointment to government boards, an issue which could affect their independence in their last years on the bench. This situation needed to be remedied.

On the Ombudsman, Dr Herrera said he agreed with the Bill even though it was skeletal.

The Ombudsman, he said, could not be fully autonomous because he did not have and should not have executive powers.

His role was to serve Parliament by making recommendations. Therefore it was right that the law was reserving the right for Parliament to regulate the role of the Ombudsman.

It was right to recognise the importance of this office and entrench it the Constitution binding others on how the Ombudsman should function in the future.

And since the judicial system was weak in the area of administrative redress he also hoped that the new administrative tribunal would develop into an administrative court, as existed in other countries.