More powers should be granted to the President beyond assenting to laws enacted by Parliament and signing the Budget before being presented to the House, to mention just two of the President’s present duties. Photo: Darrin Zammit Lupi

The time has come for a holistic review of how Malta’s Constitution has operated: its strengths, weaknesses, omissions, efficiency and effectiveness. The government and the Opposition agree. Both major parties anticipated this in their electoral manifestos over two years ago. Indeed, Labour promised to “hold a constitutional convention” on the matter.

Sadly, like so much in Maltese politics, this necessary appraisal of our Constitution – which, in the words of a comprehensive report by Malta’s only independent think-tank, The Today Public Policy Institute (to which I belong), “represents the bedrock of the democratic governance of Malta… the rule-book regulating Malta’s governing institutions and processes” – has fallen foul of polarised politics.

The issue is petty. The person chosen by the government to run the convention is somebody who brought down the last Nationalist government by voting against the adoption of the Budget. He is therefore persona non grata to the Opposition. The Opposition leader, still riled by the loss of power at the hands of one of his own treacherous members, therefore refuses to cooperate in the constitutional convention, even though he too recognises the importance for a review. Result: stalemate.

In any other grown-up parliamentary democracy, the two leaders would find a workable compromise for the greater good. A proposal that would see a person of stature (of whom there are many possible candidates) nominated to lead the convention, supported by a ‘secretary general’ to coordinate its detailed administration, should surely break the deadlock without loss of face to either the Prime Minister or the Opposition leader. The issue is too important for political point-scoring.

The Independence Constitution 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 it. Yet, there are undoubtedly aspects which need revision.

The updating of our constitutional principles and citizens’ rights that are not currently covered and a number of other institutional issues which may need revisiting in the light of events since the Constitution was conceived are other obvious areas for close deliberation.

But there are also major institutional issues concerning the current checks and balances under our Constitution to be addressed: how the President should be appointed and how much power s/he should wield; should the powers of the Prime Minister and his Cabinet be reduced; should there be a Second Chamber, or would an advisory ‘Council of State’ provide the better answer?

The kernel of the challenge stems from the accumulation of powers in the executive and, specifically, the office of the Prime Minister. The notion that winning the election – even by a tiny margin - entitles the Prime Minister and his Cabinet to do whatever they please has taken hold. L’etat c’est mois.

Our Westminster model of parliamentary democracy has sometimes been called “an elective dictatorship”. Under our first-past-the-post electoral system the winner takes all the spoils.

The concentration of power in the hands of the Prime Minister is unhealthy. The President acts on the advice of the Cabinet. She wields no constitutional power. The Prime Minister has the effective last word on the selection and appointment of the President (and he can also remove her through his control of the parliamentary majority).

The Prime Minister appoints the Cabinet. The executive controls the House of Representatives (the legislature) through its electoral majority. Every constitutional commission, the Broadcasting Authority, the Attorney General, the Security Service and all top public officers are appointed by the executive. Members of the judiciary, the third arm of government, are selected and appointed by the executive.

The concentration of power in the hands of the Prime Minister is unhealthy

The separation of powers between the executive, the legislature and the judiciary exists only on paper.

The Prime Minister has effective control over all the levers of government. In practice, all power is vested in him.

The need for greater checks and balances and more transparency and accountability of the executive is now paramount if the poor governance to which this country has been subjected over the last few years is to be a thing of the past. While the current system of Cabinet government should be retained, it should be radically improved through the introduction of greater checks and balances.

The appointment of the President should stay in the hands of the Cabinet. But the final selection should be made on the basis of a number of nominations submitted by Cabinet to a small ‘Electoral College’ comprising a dozen members of civil society selected from among former presidents, prime ministers, speakers, chief justices and notable representatives of civil society.

More powers should be granted to the President. As well as giving her greater security of tenure through the introduction of two fixed terms, her duties should be extended to include specific responsibility for conflict resolution as well as the appointment of all constitutional commissions and authorities and any other major institutional posts where political sensitivities run high and whose importance to national security are great.

The President should be advised in this process by a senior consultative body - a ‘Council of State’ - whose responsibilities would be restricted to limited areas of governance. The Council of State would not be given any legislative power over the House of Representatives, nor would it have any power of veto over legislation passed in Parliament. However, its tasks might also include scrutiny of EU legislation pipeline acquis and EU policy.

It would be made up of individuals chosen by the President, based broadly on similar qualifications and calibre to those individuals in the Electoral College. The President would be advised to appoint nominees for sensitive public service posts (based on selections held either in camera or in public) only after recommendation and resolution by the Council of State.

This would ensure that the selection of these sensitive posts in government are made without political interference, solely on the President’s final judgement of the qualifications and merit of the individuals concerned, not political preference.

This devolution of power from the executive to the President would give that Office greater prestige while ensuring that politically-partisan appointments, cronyism and patronage – which have dogged Maltese politics for so long - are avoided.

Merit, integrity and competence, implemented in an open and transparent manner, will thus become the major criteria for selection of these important public offices of State.

In tandem with this limited shift in responsibilities from the Prime Minister to the President, the function of Parliament to hold the executive to account should be considerably strengthened. This can only be achieved if it is given its own budget and controls its own staff and members of Parliament are given the administrative infrastructure and research facilities to be fully effective. Similar considerations apply to the ability of Parliamentary Select Committees to hold the executive to account.

The need to ensure that the accumulation of power in the hands of the Prime Minister and his Cabinet is not abused, that proper constitutional checks and balances are in place to prevent this and an open public discussion is held to examine these and other constitutional options through a constitutional convention are now vital requirements that should not be held hostage to petty party bickering.