The issue of autonomy of constitutional authorities such as the Broadcasting Authority or the Electoral Commission has recently cropped up. To what extent are these institutions really independent? Both of them are entrusted with important functions.

The Electoral Commission not only draws the electoral divisions which may favour one party or another, but also monitors party financing and hears complaints under the Party Financing Act 2015. The Broadcasting Authority has vast powers under the Constitution to ensure impartiality in all means of broadcasting, public and private in Malta.

In fact for a number of years a tradition or constitutional convention emerged whereby members of such authorities were selected from lists of persons approved by the two main political parties on a 50-50 basis, with the name of the chairman in both institutions to be agreed by consensus. For some reason or another in the last appointment to office of the chairman of these institutions, no consensus was reached and the chairman was chosen by the Prime Minister.

It is therefore only partly true to state, when a controversy arises, as has happened with the chairwoman of the Broadcasting Authority and her turbulent relationship with her staff, that these are independent institutions and government has no power over a person it appointed. Certainly there is political responsibility once the choice is in the hands of the executive, who may or may not have exercised a serious error of judgment. But one cannot appoint a holder of the office of chairman, who incidentally may be removed by the Prime Minister in the same way as he appointed such person, and then abdicate responsibility from the way things are run by such chairman.

Appointments to both institutions at law are practically in the hands of the Prime Minister who tenders binding advice to the President after consulting the leader of the Opposition. In both aforementioned authorities, the chairman has been chosen by him. This means that ultimately in the case of a decision getting an equal number of voters from among the ordinary members, as most things do in the Electoral Commission, the matter is effectively decided by the chairman appointed by the Prime Minister who depends on his re-appointment on the head of the executive in Malta. A possible solution to this unsatisfactory state of affairs would be that when there is no agreement between Government and Opposition the choice is made by the President of Malta acting according to her own deliberative judgment.

So long as there is no real state financing of political parties, political parties will continue to depend on donations for the execution of their proper functions

Take party financing. With the current costs of running a proper political party including its media, radio and television stations, parties have resorted to receiving donations from the public and from sponsors who do so for a variety of reasons. This is accepted in all European countries. The German CDU receives one third of its income from sponsorships by commercial companies. The SPD, also in Germany received €12.1 million in donations in 2011. In the United Kingdom, commercial companies donated close to £6 million to British political parties in the last election. Parties with at least two MPs who have taken the oath of allegiance are eligible for a share of grants of up to £2m a year from public funds (administered by the Electoral Commission) to “assist in developing policies for inclusion in manifestos for elections”.

The Electoral Commission in the UK which monitors party donations is composed of one representative from each one of the four main political parties (Conservative, Labour, Liberal and Scottish Nationalists) so that the government party is actually in a minority, and is answerable to Parliament and not nominated by government. Prior to the 2015 general election in the UK, a total of £65,654,486 was donated to UK political parties in 2014. Of this, £20,326,862 was received in the final quarter of the year.

In Malta the Party Financing Act 2015, while restricting the capacity of parties to receive donations both in capping and in revelation of identity of donors, did not support such legislative measures with adequate financing from state funds.

The problem which arises is, who is to monitor the implementation of such legislation with its various terms and conditions? The Act decided to leave the matter in the hands of the Electoral Commission which, according to article 60 of the Constitution, is appointed by the President acting on the advice of the Prime Minister after consulting the leader of the Opposition – which in practical terms means the choice of the Prime Minister – is final.

Suffice it to say that even though the drawing of electoral divisions has twice disadvantaged the same political party in 2008 and 2013, no changes to draw fairer electoral districts has been made; and the current plan and changes have been endorsed by a 5-4 majority with the chairman voting with government members.

To grant the supervisory powers for the implementation of such important legislation to a Commission whose membership depends on government’s will rather than an independent and impartial judiciary whose members enjoy security of tenure, is wrong in principle and practice.

It also means that the same organ investigates and passes judgment once such an important matter as party financing has been legislatively regulated, it does not make sense that the Electoral Commission decides these issues even outside an electoral campaign.This enforcement role of the Commission is further aggravated by its powers to impose administrative penalties. Over the years public bodies and public corporations have been granted by Parliament the right to bypass legal proceedings before a court of law, and given the power to impose administrative sanctions.

While the original intention was valid viz that of providing swift justice in certain matters, completely depenalising the process has led the Constitutional Court to strike down as unconstitutional any right given to public bodies and corporations to apply punitive sanctions except in small amounts like traffic offence fines.

A further issue which has arisen is that from reports which have appeared in the media it seems that following complaints by the two main political parties against each other regarding party financing and the implementation of the 2015 law, the Commission is about to appoint a committee or body from outside the Commission’s membership to investigate these complaints.

This is another faux pas. The law grants such power only to the Commission.

Indeed the law states that for the purpose of the execution of its functions under the monitoring and enforcement provisions, the Commission shall employ or contract one or more auditors who shall, on their appointment, take an oath of office. No other persons are mentioned. A constitutional body cannot delegate its powers of receiving, examining complaints and gathering the evidence to anyone else – whoever that might be – to assist the Commission.

To conclude these issues cannot be swept under the carpet. So long as there is no real state financing of political parties, political parties will continue to depend on donations for the execution of their proper functions. The monitoring authority should be independent and impartial , similar to a judicial body. The current law lacks such a structure and needs to be changed to ensure credibility in the monitoring process.

Tonio Borg is a former deputy prime minister and European commissioner.

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