When is a new Constitution required? This question constantly came to mind during the President’s Forum on the Constitution.

A Constitution must be one with the society it regulates and reflect realistically its social, religious and political order

A Constitution is much more than an ordinary law. It must be one with the society it regulates and reflect realistically its social, religious and political order. In this sense, a Constitution can stop being effective once it no longer remains in step with the society and the body politic of a State.

A Constitution can experience drastic change or even death if it is refuted by its social order. A clear example is when East Germany, literally overnight, gave up its soul on the fall of the Berlin Wall and its consequent absorption in West Germany. The West German Constitution became that of Germany while East Germany’s Constitution was unceremoniously filed in the archives of constitutional history.

A similar fate risked happening to our 1964 Independence Constitution. Only a last-minute agreement between Dom Mintoff’s La­bour Party and the majority of MPs of the Nationalist Party saved the Constitution with the two-thirds parliamentary majority be­hind the wide-ranging constitutional re­forms of December 1974, referred to as the Republican Constitution.

Two speakers at the President’s Forum expressed diverse opinions on the need for a Second Republic. The ‘first’ Republic had replaced the Monarchy through which Elizabeth II was the Head of State and Queen of Malta for the first decade of our independence. Yet, the 1974 two-party agreement saved our Constitution as it supplemented the 1964 Constitution’s undoubted legal validity with the necessary national consensus essential for a Constitution to operate effectively.

The two-party consensus be­came the grundnorm of our Re­pub­­lican Constitution, signifying nothing but the constitutional building block on which the entire constitutional structure is built. The referendum was practically wiped out from our Constitution and constitutional change was solely by a two-thirds majority of the House of Representatives, except for two articles.

After 1974, the two-party Parliament insinuated itself legally as guarantors of our constitutional order. The perfect example is the running of the general elections, when the Electoral Commission is bound to provide information re­quested by delegates of the two parties, uniquely rendering the State answerable to the two major contesting parties, and not vice-versa as happens in other democracies.

So, why would our Constitution require drastic reform? The answer could only make constitutional sense if reform were to somehow remove the two-party State’s vice-grip on our constitutional system.

From the presentations at the Forum, Kevin Aquilina’s (the dean of the Faculty of Laws) intervention was the closest to this fundamental theme. He mooted the creation of a Council of State to assist the President in assuming a more pro-active role in the filling of delicate institutional positions.

Clearly, the proposal is an indirect recognition of the constitutional existence of the two-party State. The President would no lon­ger remain formally ‘advised’ by the Prime Minister on the appointment of the judiciary, which is nothing but a polite order for the President to obeyed. This may apply to other constitutional bodies which today are appointed through the ‘advice/ order’ of the Prime Minister or the balancing of blue/red nominees.

There is an important health warning. Similar proposals at­tempt­ing to find an absolutely independent person would run rough­shod of our entrenched two-party State legitimated by the electorate’s overwhelming consistency in electing only two-party parliaments.

This means that no one person or even group of people may be strong enough to face the combined force of the two-party State. We have seen this happen countless times. So the drive to reform the current two-party constitutional balance must not naively assume it can be easily substituted by illuminated objective non-partisan constitutional referees.

I therefore declare my position to be in favour of working in the direction of reforming the presidency as the only constitutional institution which still symbolises our national sentiment, as distinct from the partisan. Yet one cannot ignore the two-party constitutional, social, political, and more importantly, electoral reality. The greater power passed on to the President could bring the presidency closer to confrontation with the two- party State.

One needs to note that the term ‘Second Republic’ originated in Italy following the political earthquake represented by the fall of their two-party divide between the Christian Democrat/Communist hegemony of Italian politics. In fact, the Second Republic brought with it very little constitutional reform except for a disastrous new electoral system.

So, Prof. Aquilina’s meaning of a Second Republic, of a thorough re-drafting of our present Constitution, updating it when and if required, is the correct and realistic one for the looming Constitutional Convention promised by the Prime Minister. He emphasised continuity in the sense that the approval of the two-party Parliament is essential.

A sad final note: Judge Giovanni Bonello once more sounded the alarm on the unexplainable reluctance of our Constitutional Court in enforcing the supremacy of the Constitution. Unless this issue is unequivocally settled so that a law declared unconstitutional is no longer law, without the need of Parliament’s further intervention, then any convention or even discussion on constitutional reform becomes completely useless and a total utter waste of time.

Austin Bencini’s Ph.D. thesis was The Supremacy of the Constitution of Malta.