There is currently much government-inspired discussion about the need for constitutional reform or redesign. While the Maltese Constitution may need some minor tweaking, for the Prime Minister and indeed even the President to imply the erosion of the rule of law in Malta may be somehow connected to an outdated Constitution is just diversionary smoke.
A cynical tactic to deflect attention from the real issue of lack of governance at the top echelons of government and is not remotely Constitution related. The cradle of our parliamentary system is of course Westminster, the mother of all parliaments. That has been around for 500 years and it works perfectly well without any reference to a written constitution for good reason.
There isn’t one. Britain does not possess a written constitution. The templates for the British rule of law are the Magna Carta, which is 800 years old, and the writ of Habeas Corpus. Any suggestion of redesigning either of those two historic documents would rightly be regarded as sheer heresy.
The merest suggestion that fixing an unbroken constitution may in some manner address issues of rule of law and a state of near lawlessness in Malta, is just bovine excreta. The Westminster system works perfectly well in Britain because those elected to public office largely do the right and honourable thing and closely abide by unwritten conventions of parliament.
The doctrine of separation of powers is strictly observed, the independence of the judiciary is sacrosanct, law enforcement agencies are headed by competent officers appointed on the basis of merit without patronage and most importantly the principle of ministerial accountability is unarguably respected.
Without a written constitution there is a consequential absolute supremacy of parliament. In Malta the sovereignty of our Parliament is not supreme butsubservient to constitutional law, or at least it should be, but that hasn’t stopped the government with a substantial majority and a toothless constitutional court, from acting as if it has absolute power.
As has been said before, absolute power corrupts absolutely. The system of good government depends on traditional conventions of parliament, unwritten practices respected by all without fear or favour.
Under the British system ministers don’t have to resign if there is wrongdoing or maladministration within their portfolio as there is no written law to that effect, but ministers actually do and hold themselves accountable. There are examples of ministers resigning in the interests of abundant respect for the unwritten law in cases where the minister may have only been indirectly involved.
The system of good government depends on traditional conventions of parliament, unwritten practices respected by all without fear or favour
In Malta, errant ministers evade the issue of resignation by disingenuously pointing out the Constitution refers more generally to collective cabinet responsibility. In fact the Constitution logically also covers individual ministerial responsibility. The 9th amendment of the US constitution specifically begs readers to not limit themselves to the plain text but follow the spirit of the constitution.
In short it boils down to the integrity and leadership of governments. An interesting juxtaposition. The Westminster system, without a written constitution, demands strict adherence to the spirit of conventions, conversely in Malta, supposedly which is governed by the Westminster model with a written Constitution and specific reference to ministerial responsibility, accountability is regarded as a mere annoyance which is either easily explained away or totally ignored.
Every nation gets the government (or leader) it deserves according to the French philosopher De Maistre. A very broad statement which given growing global emancipation, is arguably more correct today than when it was uttered 200 years ago.
The US voted recently in favour of making America Great Again and got Trump. South Africa voted for extending the legacy of ANC freedom fighters and got Zuma and Malta voted to maintain the favourable economic status quo despite all the alleged transgressions by government and re-elected a Muscat government. In a microcosm of that process, the PN voted for a leadership change and got Delia.
The democratic process is not designed to deliver ideal outcomes, which in itself is a subjective commodity. The issue however is much more complex. Do the people of North Korea deserve the dictatorship inflicted upon them by a ruthless military-backed dynasty, and what can be made of governments in Zimbabwe, Cuba and others of the same ilk, who rule by absolute control of the levers of power resulting in subdued or incarcerated opposition, a muzzled and dependent judiciary, abandonment of the rule of law and corrupt enforcement institutions.
In Malta, despite some questionable tactics just prior to the election, the electorate still voted well in favour of leaving a strongly performing economy in the hands of a Labour government. The election result clearly demonstrated that even in what had previously been regarded as a closely polarised nation, Bill Clinton’s statement “It’s about the economy stupid” still proves the election-winning properties of a strong economy.
It is obvious that thousands of traditional PN voters have swung to the PL in pursuit of better economic outcomes.
The Constitution of Malta may need some cosmetic changes here and there to bring it in line with more current issues like the appointment and mandate of a powerful ombudsman and reconciling the issues of personal freedom with the latest internal security requirements. But the inherent problem is not the document but those elected to govern by its written and implied ideals and instead choose to circumvent them.
The rule of law cannot thrive and prosper in a climate which disregards government accountability, demonstrably promotes patronage in the appointment of magistrates, judges and senior law officers and strongly supports heads of enforcement institutions who brazenly refuse to enforce.
The Prime Minister received a massive mandate from the people at the last election. He clearly has the intellect to recognise right from wrong and no doubt also has the authority to stamp his will on his government.
Meanwhile, a weakly led and destabilised Opposition provides more opportunity, less resistance and added temptation to his government. He might just consider to actively turn around Malta’s current pariah image within the EU and make Malta’s reputation great again thus leaving a lasting and honourable legacy for posterity.
Prime Minister please consider.
Tony Trevisan is a businessman passionate about Maltese heritage issues.