The proposal to establish a Council of State has been mooted in the past. It was proposed in the preliminary report of the Select Committee of the House of Representatives presented by Guido de Marco in sitting 72 of February 23, 1988 (papers laid 214 of 1988). It was subsequently re-proposed by President George Abela during the Republic Day speech of December 13, 2009. However, the President’s suggestion was not taken on board by the Government as no Bill to amend the Constitution has been presented to Parliament to establish such a Council.
It is not clear whether the Government’s response is a principled objection to the setting up of such Council or simply government bureaucratic inertia. The question which thus should be asked is whether Malta would benefit from having such a Council. The reply should be in the affirmative, bearing in mind that such Council exists in several other jurisdictions and served the purpose for which it was established.
In the format I am proposing it, a Council of State should essentially be an advisory organ of the State. It should advise the President of Malta on those decisions which s/he has to take on his/her own motion. While, it must be admitted, in the current state of play these decisions are few and far between, such handful of decisions are of paramount importance for the governance of the State.
For instance, the Constitution states in the oath for the due execution of the office of President that the incumbent has to “preserve, protect and defend the Constitution of Malta”. This is quite an onerous task placed upon the President. S/he has to do so with regard to the three organs of the state – the legislature, the executive and the judiciary – as well as other State institutions and officers.
This means that, as guardian of the Constitution, there may indeed be certain situations where the President may end up at loggerheads with other institutions or offices of State. This is an arduous and unenviable task bequeathed to the President. The President has nobody to turn to in order to seek advice from and comfort for his/her decisions.
A Council of State would surely be of great benefit to the incumbent of the office of President.
Article 85(1) of the Constitution sets out some of those instances where the President acts on his/her own initiative. These include the powers to dissolve Parliament, to appoint or remove a Prime Minister, to appoint an Acting Prime Minister, to revoke the authority of a Cabinet Minister to act as Prime Minister, to appoint and revoke the appointment of a Leader of the Opposition and to appoint his/her personal staff.
Dissolution of Parliament is not an easy decision for a President to shoulder. To burden such a decision on one person only – as the Constitution has done since 1964 – might not necessarily be conducive to the best possible result. In such cases, the President should be allowed to seek counsel from a body that is above partisan politics and is there to provide honest, frank and impartial advice to the President. This can be achieved through a Council of State.
In a judicial setting, for instance, an appellate court and a court of final instance are always composed of three judges so that the decision is not taken by one person.
As to the composition of the Council of State, this should include among its membership past Presidents, Prime Ministers and Leaders of the Opposition. Other representatives of society might also be called upon by the Council to contribute, not as full members but as advisers.
I would tend to exclude the incumbent Prime Minister and Leader of the Opposition from Council of State membership due to an apparent institutional conflict of interest that might arise. I would also exclude sitting and retired members of the judiciary to keep the judicial organ separate and distinct from the executive organ of state in homage to the doctrine of separation of powers and not to involve former Chief Justices within the executive organ of the state.
As to functions, the Council can be inter alia consulted by the President or by the Government on the appointment and the removal of various high level officers such as those of President of Malta, the Attorney General, permanent secretaries, ambassadors, howsoever called, the Commissioner of Police, the Commander of the Armed Forces of Malta, the Ombudsman, the Auditor General, the Deputy Auditor General, constitutional commissions (the Public Service Commission, the Employment Commission, the Electoral Commission and the Commission for the Administration of Justice) and the Broadcasting Authority together with chairpersons and members of bodies corporate established by law as well as other statal offices such as those of the Data Protection Commissioner, the Commissioner for Children, the Commissioners for Administrative Investigations, etc.
The Council of State can also act as a think tank to the government and propose amendments to the Constitution, other laws and government policy. It can be asked to carry out inquiries under the Inquiries Act and, at the request of the House of Representatives, to forward its comments on Bills presented to the House.
With an election around the corner, perhaps the time has come for the Government and the Opposition to express in an unequivocal manner their views on the establishment, composition and functions of a Council of State for Malta.
Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta