The opening paragraph of the report by Malta’s only independent and non-partisan think-tank, The Today Public Policy Institute, on the Constitution of Malta states: “The Constitution represents the bedrock of the democratic governance of Malta. It is the rule book regulating Malta’s governing institutions and processes. It constitutes the supreme law of Malta.”
These are heavily loaded words. To most readers, the Constitution of Malta dictating how this country is governed, is taken as given. A dry, legalistic document of interest only to politicians, constitutional lawyers and academic anoraks.
Nothing could be further from the truth. What happens to our Constitution is of direct interest to all, including those who come after us. The Independence Constitution, which came into being 50 years ago, has served Malta well notwithstanding some deficiencies. It is difficult to make a case for the complete rewriting of all, or even a major part, of its provisions. And even if a radical redesign of the Constitution were proposed as a result of a desire to make major structural changes, this would not imply that several existing provisions of the current Constitution would not find their place in a new one.
Nevertheless, 50 years after Malta attained its independence, the time is ripe for the Constitution to be reviewed as a complete document, rather than the piecemeal approach which has hitherto been adopted. The government promised in its manifesto that “it would hold a Constitutional Convention that will give birth to the Second Republic”.
The think-tank’s report, ‘A Review of the Constitution of Malta at Fifty: Rectification or Redesign?’, aims to consider the lessons of the last 50 years of Maltese constitution-making and proposes improvements as a baseline document for consideration by the national constitutional convention which the government plans to hold.
It has considered the issue as objectively and dispassionately as possible, drawing on the advice and experience of a number of constitutional experts many of whom have experienced the Constitution at the rock face. The findings in the report have been written in layman’s language, free of any jargon or legalese. It has tackled the subject in six parts.
The first part, dealing with constitutional principles, highlights a number of principles and citizens’ rights that are not currently covered by the Constitution.
It urges for consideration that these should be incorporated into the Constitution in order to swing the balance away from its current State-centred to a greater citizen-centred approach. The Constitution should not be perceived as an instrument wielding power for State institutions but as a means for an open and accountable system of government.
Part two of the report considers a number of major institutional issues that have been proposed from time to time and which, if implemented, would imply major changes to our Constitution. Should the powers of the Executive (the Prime Minister and his Cabinet) be reduced? If so, how? Should Malta stick with its form of Cabinet government or go for presidential government? Should Malta have a Second Chamber (a bicameral Parliament) or would an advisory ‘Council of State’ provide the better answer? How should the President of Malta be appointed and how much power should he or she wield?
All these possibilities raise issues about the current checks and balances in our Constitution which require very careful consideration, bearing in mind always that one tampers with a Constitution at one’s peril. “When it is not necessary to change, it is necessary not to change.”
The Constitution should be amended and amplified but there is no need for a fundamental redesign
The third section highlights a number of other institutional issues which may need revisiting in the light of events since the Constitution was conceived: the effects of accession to the EU; judicial accountability; the supremacy of the Constitution; parliamentary scrutiny and autonomy; whether Malta should have full-time, rather than part-time members of Parliament; whether to have technocratic ministers in Cabinet; anti-corruption measures; powers of locagovernment; the separation of Church and State; the crucially important matter of Malta’s electoral laws and emancipating the Constitution from the current two-party hegemony; the powers of the Ombudsman and the Security Service; the formation of an ‘Executive Services Commission’ to improve public service accountability; solving the interregnum between one Parliament and its successor; and the integrity of those in public life.
In all these areas the report offers possible changes for the consideration of the constitutional convention but also warns that, rather than blaming institutional lapses for what has gone wrong, there has mostly been a failure in administering these institutions. It suggests that it might be better simply to improve standards of professionalism, leadership, administration and management in government than to try tinkering with the Constitution.
As to consideration of political issues, the report focuses on three: national days; neutrality and non-alignment; and party political funding. Three lively issues on which much political passion has been expended.
The fifth part of the report draws the threads together by asking the question: does Malta’s Constitution require complete redesign, or simply rectification, amendment and amplification? It is the judgement of the think-tank that it is difficult to make a case for the complete rewriting of all, or even a major part of, its provisions. It considers that the Constitution should be amended and amplified, but there is no need for a fundamental redesign.
The Constitution has neither collapsed, nor is it discredited.
Finally, turning to the organisation and conduct of the all-important, proposed constitutional convention, the think-tank strongly recommends the need for great tact, consideration and delicate political choreography to ensure its success. Using the model of the European constitutional convention that was held a decade ago, it recommends that the convention should be organised in three phases. First, a period of listening to civil society and delegates from established institutions. Secondly, deliberation by a Group of Experts. And, thirdly, the drafting of proposals for change by the Group of Experts in conjunction with the Parliamentary Select Committee on the Constitution.
Most importantly, it recommends that the convention should be led by a person of stature, political independence and objectivity. This will be crucial to its success. It is for consideration that the serving President should not be involved since she could find herself facing a conflict of interest. But it suggests the selection of a former President, Speaker of the House or Chief Justice, judge or similar as being appropriate.
The objective should be to ensure that the convention leads to a measure of political agreement since, if no agreement proves possible, any attempt at wide-ranging amendments could prove destabilising and unsound. Malta’s well-earned reputation as a stable European country that has developed its sovereign constitutional framework in a democratic manner over half a century without break depends on it.
Successful democracy requires the two pillars of a cohesive working State and the rule of law to be firmly established. Neither democracy nor the economy can flourish properly in the absence of a competent State. The government’s promise to hold a constitutional convention presents an opportunity for Malta to take a hard look at the way its institutions operate.
The Today Public Policy Institute is organising a conference on the constitution at the Malta Chamber of Commerce, Enterprise and Industry in Valletta between 4pm and 8pm tomorrow. All are most welcome to attend.