The Constitution disqualifies the Chief Justice and other judges, whether in office or retired, from occupying the post of President of Malta. From the start, it is peculiar to note that, oddly enough, magistrates are not so precluded.

Article 48 (2) (b) was inserted in the Constitution when other important constitutional reforms were made in the aftermath of Malta's declared republican status in 1974. It must be recalled that at that particular time there was a constitutional deadlock on a number of burning issues. Apart from the question of Malta's drive towards becoming a republican state, there persisted a constitutional crisis regarding our judiciary. For some time, the Constitutional Court, for various reasons, had not been constituted, which pressing issue had to be resolved urgently.

To my mind, it seems that inter-party negotiations finally led to a package of reforms that included the necessary legal mechanisms allowing for our Constitutional Court to be formed automatically in the instance that the government would fail to nominate members to sit on the Supreme Court. Strangely, however, together with this necessary and welcome amendment, article 48 (2) (b) was introduced. The reasoning behind the insertion of this particular amendment seems to have been a desire to eliminate the then prevailing pre-occupation that the particular incumbent member of the judiciary, aspiring for the high office of the presidency, could appear to be too submissive to the government's whims. The idea was therefore that this clause could eradicate the proverbial carrot. For reasons I will give, I feel that this clause no longer holds water and I would go so far as to state that it could prove to be an indirect insult to the members of our judiciary because it could be interpreted as putting in doubt their integrity.

Sir Anthony Mamo, after all, was a long-time member of the judiciary and in fact served as Malta's Chief Justice for 14 years before first being appointed to the office of Governor General and later President of Malta. This notwithstanding, Sir Anthony's integrity remained undisputed and unchallenged. He performed his judicial functions in an excellent manner right to the very end when, as stated, he was elevated to even higher office.

The reasoning behind this particular article of law appears to create a number of anomalies. If we were to go along with this line of thought, surely therefore, magistrates should be excluded from being nominated judges; judges from being nominated Chief Justice and the same Chief Justice and other judges from being nominated to high judicial office in international tribunals. Furthermore, retired judges should also be excluded a priori from being designated after their retirement to chair important boards and tribunals.

The reason is because even here, after all, such members of the judiciary could be enticed to accommodate the government of the day. This, however, is surely not the case.

The political climate has changed drastically over the years. In truth, our judiciary has succeeded in time to affirm its independence to a higher degree and, therefore, there no longer appears the need to perpetuate the constitutional provision in question.

There is absolutely nothing wrong in appointing politicians to the office of President. Definitely, their experience and service in the public arena qualifies them as perhaps the best candidates. This notwithstanding, however, it could be in the national interest to occasionally have as a Head of State, an incumbent who would come from outside the political spectrum. In fact, such a move could do much to harmonise national unity and minimise polarisation. The case of Sir Anthony is a classical example of how unifying a force such a personality could prove to be.

It is generally acknowledged that Malta's human resources are quite limited and, to my mind, senior members of the judiciary could at times prove to be considered valid candidates for the high office of President, together with other personalities who could also be outside the political affray. Members of the judiciary are generally viewed as being super partes and carry the prestige and confidence necessary in order to execute with dignity the office of Head of State.

In the light of all this, it is therefore high time to do away with this archaic constitutional provision.

Dr Herrera is a Labour member of Parliament.

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