The members of the parliamentary Committee for the Codification of Laws appeared to agree today that the Constitution should include a clause saying that a minister who lost a vote of confidence in parliament should resign.

The issue of individual ministerial responsibility came up again briefly as the committee members resumed their wide-raging debate on a Code of Administrative Law.

During the discussion, Dr Edward Zammit Lewis, a guest of the committee, said that while the consequence of a no-confidence vote within the concept of collective responsibility was laid down in the Constitution, there was no similar provision for individual responsibility - that is whether there was a moral or legal obligation for a minister to resign.

Dr Francis Zammit Dimech (PN) said he knew of no situation where a minister did not resign when he lost a vote of confidence. Political responsibility, he said, as over-arching.

Committee chairman Franco Debono (PN) said that in most other countries, where there were high standards of responsibility and political accountability, ministers would not even wait for a vote of no confidence to resign but opted to step down be fore such a vote was presented in parliament

JUDICIAL APPOINTMENTS

At the beginning of their meeting, Prof Kevin Aquilina, dean of the Faculty of Laws, presented the committee with laws and reports on the composition and role of Judicial Appointments Board and Councils for the Judiciary.

The members of the committee appeared to favour the Scottish model where judicial appointments are considered by the Judicial Appointments Board but the final decision rests with the government.

Labour MP Jose' Herrera said it should not be the Commission for the Administration of Justice to consider judicial appointments, but rather a Judicial Appointments Board.

Dr Edward Zammit Lewis, who was one of the committee's guests for the committee meeting, said the board should be composed of independent judges, such as judges.

Nationalist MP Franco Debono, chairman of the committee, said there should be a formal structure for the training of judges to ease their transition from their work as lawyers.

Dr Herrera said there also needed to be better case management, with adequate time being allocated for the more serious cases.

Dr Austin Bencini, lecturer at the Faculty of Laws, said the committee was handling more than the re-codification of laws. This was a redefinition of Malta's public law. He said this code affected sections of the Constitution such as individual ministerial responsibility and removal of judges and therefore the preparation of this code and amendments to the Constitution should run in parallel. It was right that the code included convention on ministerial responsibility and when ministers were required to sacrifice their careers.

He proposed that the proposed code should include the procedure to be followed when the Constitutional Court declared laws to be unconstitutional.

Dr Zammit Dimech said he agreed that a bill which was declared null by the court should be effectively annulled immediately, however there were problems when the court declared that it was the action, not the law, which was unconstitutional. However there was sometimes a situation where that particular area of the law needed to be regulated by fresh legislation, in order not to create a loophole.

Prof Aquilina said the prime minister could  strike off laws or sections of law which were declared unconstitutional by the Constitutional law, but amendments needed to go through parliament. He was proposing that the Law Commission could draw up amendments.

Dr Bencini said one could not longer have a situation where a law remained in force despite being declared unconstitutional and a mechanism was needed to substitute that law as quickly as possible. 

Turing to other sections of the proposed code, Dr Debono said the role of the President as the guardian of the Constitution needed to be strenghtened.

Dr Herrera said the Constitution never wanted the President to be a figurehead, although he could not assume the role of the executive. The time had come to see how one could, with care, increase the direct powers of the presidency, to further enhance the prestige of the Office.

GOOD ADMINISTRATION AS A CIVIL RIGHT

Dr Debono noted that according to the proposed code, (prepared by Prof Aquilina) good administration was to be considered as being a civil right. Prof Aquilina said that stemmed from the charter of the Fundamental Freedoms of the European Union.

Dr Debono referred to last week's discussion on individual ministerial responsibility. He asked if there was a system where, in cases of gross negligence, apart from resignation, a civil remedy could also be sought.

Dr Herrera said one needed some immunity as otherwise no one would accept such responsibilities. Such immunity existed in parliament, the courts and Mepa, for example. The responsibility of a minister should be political rather than personal. However if his negligence was such that it amounted to malice, one could be taken to court under the concept of dolus where a person intentionally took a wrong decision. However ministers were otherwise not personally responsible for maladministration.

Dr Zammit Lewis asked whether the code made provision for what would happen if a minister lost a vote of confidence.

Dr Debono said the code said resignation 'would be appropriate'.

Dr Zammit Lewis said this was not included in the constitution and therefore a minister was not obliged to resign.

Dr Bencini said legislation in this area much also be reflected in the Constitution.

He also argued that if the President was to have strengthened powers as the guarantor of the Constitution, the law should lay down that he may only be removed through a motion supported by a qualified majority of the House, and not just a simple majority.

Dr Debono said he was renewing his call for the appointment of the President, as far as possible, to be made with a two-thirds majority of the House, with an absolute majority of the House required only if there was a stalemate.

Dr Zammit Dimech said that in a culture of political responsibility he had no problem in promoting legislation, but one had to be careful that responsibility at law did not lead to a situation where less responsibility was actually borne. Political  responsibility was a value in itself and most governments were sensitive to what the people felt.

Dr Debono one could not rest only on having an election every five years and this concept of responsibility needed to be strengthened.

Dr Zammit Dimech said he knew of no situation where a minister lost a vote of confidence and remained in office.

Dr Debono said the fact that this was put in writing should be helpful to promote the culture of political responsibility. In normal circumstances, a minister should not even bring himself to a situation where he faced a confidence vote.

Lacunae in the law  led to controversies in real life and one should legislate in a proactive manner.

Dr Zammit Dimech said he agreed on codification and constitutional amendments but this was a process which went beyond codification and involved a culture.

He also agreed that the standing orders of the House needed to be amended, For example, he agreed on having prime minister's questions.