The consultation process

Consultation is some­times required by law or is resorted to by administrative practice. It is surely mandated by the Constitution when certain public offices are to be filled. Such is the case for filling the membership of constitutional commissions (like the Public Service Commission, the Electoral Commission and the Employment Commission) and the Broadcasting Authority.

In a democracy, consultation is a healthy and, indeed, an indispensable means for good governance- Kevin Aquilina

There are certain offices, such as those of the Auditor General, the Deputy Attorney General and the Ombudsman, which are filled through a resolution of the House of Representatives supported by at least a two-thirds majority vote. Hence, in these cases not only consultation is needed but even agreement as stated above.

There are, nonetheless, other offices of State where no such agreement or consultation is required. Take the case of the appointment of the Attorney General, a magistrate, a judge and the Chief Justice.

In other cases, consultation might not be a legal requirement but, this notwithstanding, it still takes place. It is, therefore, more in the nature of administrative practice as is the case with the appointment of the President of Malta.

In all the above cases, consultation is carried out between the Prime Minister and the Leader of the Opposition and is not a form of public consultation. Indeed, the public has no say in such appointments.

At other times, consultation is required by law not with regard to the filling of a public office but, for instance, for law making. A case in point is when the Constitution is amended to extend the lifetime of Parliament. In such case, a simple majority vote of the electorate in a referendum is needed in addition to a two-thirds majority vote in the House of Representatives. This goes beyond mere consultation because, if the amendment does not obtain both the required parliamentary and popular majority vote, it will not be carried.

Mentioning referenda, it must be pointed out that these come in two forms: legislative and consultative. Extending the lifetime of Parliament is an example of the first. So is the abrogative referendum, where the people might vote in favour of the repeal of certain laws listed in the Referendum Act. An example of a consultative referendum is the recent one on the introduction of divorce.

Even before making certain subsidiary legislation, sometimes a consultation process has to take place as is the situation under the Environment and Development Planning Act with regard to the making of regulations or the making of or revising a plan or policy.

Even though there might be no statutory duty to consult, the Government can still do so through administrative practice either through a White Paper or by forwarding a copy of a draft Bill to stakeholders for their feedback before the draft law is eventually discussed in Cabinet.

In a democracy, consultation is a healthy and, indeed, an indispensable means for good governance. There have also been cases where consultation with stakeholders takes place after a Bill is approved by Cabinet or after it is approved at second reading by the House of Representatives and while it is being discussed at committee stage. This tardy consultation perhaps is not a good example of best practice.

Unfortunately, in the past, we have had instances where, when filling certain public offices, no agreement was reached between the Prime Minister and the Leader of the Opposition on the appropriate person to fill such office.

There have been instances where these public offices were filled by the President of Malta on the unilateral advice of the Prime Minister with the Leader of the Opposition expressing his strong disagreement at the appointment made but with the Prime Minister, this notwithstanding, still advising the President to make the appointment. In such instances, unfortunately, the President – the symbol of national unity – has to implement the divisive advice given to him by the Prime Minister.

At other times, consultation was interpreted to mean informing the Leader of the Opposition of the Prime Minister’s choice of appointees. I do not think, however, that this type of consultation can be said to reflect the spirit of the law. Ideally, there should be agreement between the Prime Minister and the Leader of the Opposition on all appointments to be made where consultation is, by law, a requisite, and this in the public interest.

Whenever a law or an administrative practice adopted by the public administration requires a consultation process to take place, consultation is anything but perfunctory or pro forma.

Consultation is a serious process that implies taking the following measures: meeting the person to be consulted, not merely contacting him/her by mail, electronic mail, text messaging, telephone or other means of technological communication; holding consultation face-to-face; fully informing the person consulted of the facts of the situation and its background; encouraging a full and free discussion and an honest exchange of views about the decision to be taken; each person should express his/her own judgement sincerely and candidly; the person who is consulting and who is to take the decision should, as far as possible, aim to achieve consensus with the person consulted and, if such consensus is not achieved, the person consulting should avoid taking a decision out of pique or to spite the person consulted; where the person consulting feels compelled to act differently as to what is being advised by the consulted person, s/he shall give the person consulted the reason for his/her decision and such reasons should, for the sake of transparency, be published in The Malta Government Gazette if such consultation is about a policy and not about filling any public office.

Both the consulting person and the consulted persons should observe the confidentiality of the process.

Consultation should be made in good faith and its result should be inspired by attaining the common good of the community not the political exigencies of the political party in Government or in Opposition.

Where consultation between the Prime Minister and the Leader of the Opposition is mandated by law with regard to the filling of any public office, such consultation should be inspired by the public interest and not by political partisan ends.

Politicians need to rise to the occasion and ensure that the best persons are chosen for the office of State in question.

Finally, consultation should not be limited to two parties only – the Prime Minister and the Leader of the Opposition – but should also involve civil society to ensure that whoever is appointed to a particular office has the backing of Maltese society especially, for instance, when it comes to appointing a President of Malta, who is the figure of national unity. His/her appointment should command the strong support of Maltese society.

The Malta Council for Economic and Social Development, for instance, could well serve this consultative purpose for, at least, constitutional offices.

Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.