Second thoughts about a Second Republic

During the past couple of weeks the debate about proposed changes to Malta’s Constitution was quite articulated thanks to the participation of several high-profile personalities. Opinions were also quite varied and contrasted, but the majority of those who spoke, including two former Labour prime ministers, believe there is no need for a radical overhaul of the Constitution.

Unfortunately Franco Debono is so manifestly unfit for purpose that his appointment has been universally criticised

On April 22, Karmenu Mifsud Bonnici lambasted the idea of a Second Republic. While addressing a press conference he clearly stated that “there is no reason to create a Second Republic if it means destroying the foundations of the First Republic. The Constitution can be updated but it does not mean we need a Second Republic.”

What particularly irked the former Labour prime minister was the suggestion that the neutrality clause should be changed. However, Mifsud Bonnici made it very clear that the project of a Second Republic is for him a no-no.

Last Wednesday, together with Joe Pirotta, I interviewed Alfred Sant on Campus FM. We discussed with him his thesis that San Ġorġ Preca was influenced by both Manwel Dimech and the pastoral strategy of the Methodists. We argued about whether it is right to call St Augustine a fundamentalist. Then we touched more mundane subjects, mainly the desire of some for a radical transformation of our Constitution.

Sant proved to be sceptical of this proposition. “I do not believe we need to bring about radical changes in the Constitution” was his firm opinion. He made one exception though. The Constitution should have a temporary provision mandating female quotas in Parliament and commissions.

Sant made an interesting argument: “I believe the Constitution is as good as it is managed. I think it has not been managed in good faith.” He said that when we Maltese meet an institutional blockage we opt to change the structures. Instead we should ask ourselves whether we are making the best possible use of those structures. “We should reflect on how to manage the Constitution in good faith, not on how to change it.”

A similar theme was expanded on by Giovanni Bonello, former judge of the European Court of Human Rights, while addressing the President’s Forum. “There is no urgent need to amend the Constitution, but rather to read it and to respect it,” he said.

The speech delivered by Bonello provoked the ire of Chief Justice Silvio Camilleri who, according to reports in the press, said he expected a better sense of propriety from Bonello, seeing the number of judges present at the forum.

Many, including the public, were also angry and deeply worried, albeit for a totally different reason. People are irate and apprehensive at the realisation that we are not being adequately protected by our Constitutional Court. In his particularly pungent and acerbic style, Judge Bonello drives home over and over again one frightening point: the Constitutional Court protects the unconstitutional over the constitutional.

If you think I am exaggerating, just read the speech of Bonello on www.president.gov.mt. Constitutional expert Austin Bencini, writing in The Sunday Times of Malta in support of Bonello, complained about the “unexplainable reluctance of our Constitutional Count in enforcing the supremacy of the Constitution”.

As Sant and Bonello said, it seems the problem is not the Constitution but the way we put it into practice. Consequently citizens are not being adequately protected.

This does not mean the Constitution cannot be improved, the structures it set up strengthened, citizens’ rights more adequately protected and new challenges addressed. The Constitution has been amended 24 times to adapt it to new situations. There is nothing that says it should not be further amended and improved for the long-term benefit of Maltese society.

The question is one of method.

The Government has opted for a Constitutional Convention co-ordinated by Franco Debono. Unfortunately, he is so manifestly unfit for purpose that his appointment has been universally criticised. The person who is given such a task should be able to boast of two characteristics: ability to unite people and expertise in constitutional matters. I hardly think it is necessary to explain why Debono fails dismally on the first count.

Let me inquire about the second characteristic. Can Debono produce in defence of his constitutional expertise a bevy of peer-reviewed academic articles published in reputable law journals or at least some postgraduate studies in the area?

Should the constitutional reform project be handled by a select committee of Parliament as proposed by PN leader Lawrence Gonzi? During the last legislature there was an attempt to move along this track. In the first few months of the legislature, Gonzi and Muscat exchanged a number of letters that resulted in the formulation of an agenda for constitutional reform and in the setting up of a Select Committee of Parliament under the chairmanship of the Speaker.

Some progress was registered but the project was wrecked after Labour boycotted the select committee following the controversy of whether Justyne Caruana had voted yes or no during a particular division in Parliament.

I do not think we should go down this route for two reasons. Firstly because such a route, sensible as it is, when attempted, has ended up in a cul-de-sac. Secondly, civil society has such a great role in this country that its representatives should be actively involved in all stages of the movement.

The project for constitutional reform was sown and nourished by President George Abela. This has been one of the hallmarks of his presidency. One cannot but ask why is the presidency being put aside? It cannot just be that it is payback time for Debono.

I believe the Office of the President should provide the inspiration and be the force behind the process. Quite naturally, this Office must have the assistance of people who are both respectable and knowledgeable on the subject – characteristics profoundly missing in the initiative an­nounced by the Government.

Bencini and Aquilina could, for example, undoubtedly provide both these qualities, which are sorely needed if we wish that the process of constitutional reform comes to fruition.

joseph.borg@um.edu.mt