Unhealthy focus of powers

Malta’s style of government is characterised by an unhealthy concentration of powers due to a feeble separation of powers between the three organs of the state.

The President of Malta is omnipresent in all three organs. He is the Head of the Executive, chairs the Commission for the Administration of Justice and assents to bills passed by the House of Representatives.

As chairman of the commission he partakes in giving advice to the government on the appointment of a member of the judiciary, whenever the commission is called upon to do so. He is advised whom to appoint judge and magistrate by the government. At other times, it is the House of Representatives which advises him as to the removal of a judge or magistrate.

When the President is unable to carry out his duties, the Chief Justice may be appointed to do so even if the Chief Justice (or any judge for that matter) cannot be appointed President whenever a vacancy of President arises. The judiciary are appointed by the Executive and removed by Parliament. It is not the Commission for the Administration of Justice which appoints and removes them as happens in continental Europe where the independence of the judiciary is considered to be best safeguarded by the judiciary who appoint, promote, discipline and dismiss their own brethren through such a Commission.

Ministers and Parliamentary Secretaries participate in Cabinet and have one foot in the Legislature and another in the Executive. Much power is vested in the government and checks and balances on government’s in/action are also weak.

The two recently appointed Commissioners for Administrative Investigations under the Ombudsman Act were not appointed directly by the Ombudsman or by Parliament once these are designated Officers of Parliament but by the Prime Minister and the Leader of the Opposition.

There is no legal duty imposed upon the Prime Minister and the Leader of the Opposition to consult the Ombudsman before they select such a commissioner.

The Office of the Prime Minister construes the Public Administration Act as empowering it to issue directives to public corporations when such corporations are established by Parliament and not by the government. While the Office should issue directives to the public service, including government agencies, it goes against the raison d’etre of establishing independent public corporations to bind them by the same directives which apply to the public service.

The same applies to the Financial Administration and Audit Act where the minister responsible for finance issues similar directives to public corporations. If these public corporations are transformed into government agencies then I see no problem there. But if they are to retain their independence from government then it offends the doctrine of the separation of powers to have public corporations established by Parliament answerable to the Executive rather than to Parliament.

The Auditor General has no power in enforcing the main conclusions reached in his reports concerning government ministries and other government entities.

With a majority of government ministers and MPs sitting on the Public Accounts Committee, this committee does not have sufficient clout to censure a minister.

Not only, but the minister against whom allegations of financial impropriety are made (or against administrators falling under his ministry) may end up being a member of the Public Accounts Committee and decides on the appropriateness of his own or his administrators’ action, inaction or maladministration.

The European Court of Human Rights in the Demicoli vs Malta case made it clear that Parliament cannot be judge, juror, witness, enforcer and prosecutor at one and the same time!

When the Constitutional Court or other court annuls a law, that law remains on the statute book until the government decides to abrogate or amend it. There is no automatic process which triggers before a committee of the House of Representatives to draw up the necessary amendments.

We have had court judgements annulling laws but the government taking considerable time to take corrective measures, if at all. In this way, the supremacy of the Constitution is brought to a naught by the government’s inaction. Wrongly so, it is thus the government which decides if, when and to what extent the judgments of the European Court of Human Rights and local courts annulling a law should be implemented.

The government promotes magistrates to judges and judges to chief justices. But as the criteria for promotion are kept secret, there is no transparency in the appointment procedure. Sometimes seniority is followed in making an appointment; at other times it is not. Sometimes a judge is appointed from the magistracy; at other times a judge is appointed from practising advocates.

Sometimes a chief justice is appointed from judges, at other times from the advocacy. Sometimes a junior magistrate is appointed a judge; at other times a magistrate who was senior to the junior magistrate appointed judge is subsequently appointed a judge.

At other times the Chief Justice is appointed from the Attorney General’s Office rather than from serving judges or serving advocates with more than 12 years practice in the profession. Indeed, there are no published selection criteria for judicial appointments, contrary to other countries.

A member of the judiciary is elected on an international court or tribunal through the government’s good offices.

It is the government which conducts the electoral campaign with other states for the judge’s election.

The judge is entirely dependent on the good will of the government. But should there be such an intimate relationship between the judiciary and the executive, more so when the judge appointed on the court or tribunal does not resign his or her judicial office in Malta?

There is thus too much concentration of powers in the government and an unhealthy relationship between the three organs of the state. This is not desirable in a democracy governed by the rule of law.

Prof. Aquilina is Dean of the Faculty of Laws, University of Malta..