Why do we need a new Constitution? A study of the Republican Constitution points towards various shortcomings. The doctrine of separation of powers is very feeble within the Maltese constitutional legal system to the great advantage of the Executive and to the absolute detriment of the Legislature and the Judiciary.
There are many deficiencies that justify a thorough revision of the Constitution
There is too much concentration of powers in the Executive because it controls the House of Representatives through a majority it enjoys in the House.
The President invariably has to act on the advice of Cabinet and, when he acts on his own motion, he does not have a Council of State to advise him.
Constitutional commissions, the Broadcasting Authority and other public offices (such as the Attorney General, the Data Protection Commissioner, the head of the Security Service, top public officers) are appointed by the Executive.
The Executive decides which treaties are to be adhered to and not all treaties adhered to by Malta need parliamentary approval.
The Executive decides who is to be appointed to the Judiciary, as Attorney General, permanent secretaries, heads of department and to other public offices.
Where the Executive is not the decision-making body as to appointments, it partakes in the appointment of Speaker, Deputy Speaker, Ombudsman and Auditor General. There are few effective controls that can be exercised over the Executive, bearing in mind that it controls the House of Representatives and, to a large extent, even the President.
The Judiciary have abdicated their constitutional right to enforce human rights and fundamental freedoms erga omnes, instead leaving it to Parliament (in reality to the Executive) to decide when, if and to what extent to implement Constitutional Court and Civil Court, First Hall (sitting in its constitutional competence) judgments declaring a law to be in breach of Chapter IV of the Constitution of Malta, the European Convention Act and the European Union Act and whether a law is ultra vires not necessarily only of these three laws but also of ordinary law such as when an ordinary law runs counter to the European Convention Act, the European Union Act or is ultra vires the parent act.
Constitutional commissions and the Broadcasting Authority are appointed as a matter of fact by the Government of the day.
The Ombudsman’s reports give rise to non-binding recommendations on the Government, which can pick and choose which to implement or discard with no legal consequences attached thereto.
The Auditor General does not have the necessary clout to ensure that the public administration complies with his reports.
There is no culture of resignation in Malta.
Ministers and public officers are not sued by the Government for personal damages when it is found that they had ill-administered money or squandered public coffers.
Governmental accountability is very limited. For instance, when there was a breach of the code of ethics of ministers, former Prime Minister Lawrence Gonzi barely took action against his ministers.
It has been reported that certain MPs have flagrantly flouted the code of ethics over the years with impunity: 11 MPs failed to submit their income return for 2011, one has not done so for the last four years and a minister has not declared an account in a Swiss bank for the last eight years. The code of ethics is taken very lightly and nothing happens when it is breached with impunity. This sets a wrong example to the population. Ministers and MPs should lead by example.
Transparency in government is also very limited. Although Malta has a Freedom of Information Act, the law is riddled with exceptions where the public administration need not make available information to the public. There are too many secrecy laws on the statute book that have not been brought in line with the Freedom of Information Act.
The Nationalist Government had introduced several laws to deprive public corporations from their characteristic trait: independence from the Government in decision-making.
This is done through directives issued under the Public Administration Act and the Financial Administration and Audit Act, the Small Business Act and Cabinet directives requiring the approval of the Prime Minister for a subsidiary law to be published in The Malta Government Gazette.
Such requirement is in breach of the law because there is no law to authorise the Prime Minister to withhold the publication of subsidiary legislation made by another minister, person or body to make such subsidiary legislation.
In terms of this illegal Cabinet decision, the Prime Minister can block any subsidiary law from being published in The Malta Government Gazette even if the law does not empower him to make such subsidiary law or to block its making.
This gives the wrong impression that ministers perceive themselves to be above not subject to the law, thereby flouting the doctrine of the rule of law, which requires Cabinet to act in conformity with, not in violation of, the law.
With ministers being chosen from members of Parliament, this means that the Prime Minister has a very limited choice whom to appoint to Cabinet and not necessarily the most knowledgeable, efficient and competent MPs are chosen for the job.
Moreover, being MPs, ministers have also to take care of their constituents’ needs, thereby introducing a system of political patronage and clientelism, especially when the minister, to serve his constituents, uses his office to exert pressure on public officers, persons and bodies assigned to his ministry to take certain decisions that might not necessarily be in full compliance with the law or in the public interest, thereby putting undue pressure on such public officers, persons and bodies and placing them in an untenable situation.
This is nothing but abuse of power that goes unpunished.
The Constitution has very scant provisions with regard to the exercise of power in the interregnum between a dissolution of Parliament and a general election.
It does not provide for a caretaker government, nor does it set out its limits. It does not allow the recalling of Parliament in certain situations when there is need to adopt or provide feedback on an EU measure. The period between the dissolution of Parliament and the holding of a general election is too long.
The criteria for granting a Presidential pardon, remission or amnesty are not written down in the Constitution. The Emergency Powers Act authorises the making of regulations that may be in breach of human rights and fundamental freedoms as contained in the European Union Act or other ordinary legislation.
There are still quite a few laws that run counter to the human rights and fundamental freedoms’ provisions of the Constitution (and of the European Convention Act).
The Constitution still refers to the death penalty when this has been abolished in Malta.
The Constitution does not have a provision providing for the entrenchment of ordinary law and establishing a hierarchy of laws.
It still disallows prisoners from voting. It still continues to consider the administration of Parliament as being under the responsibility of the Executive and does not detach the legislative organ from the executive organ of the State insofar as the parliamentary service (as opposed to public service) goes.
There is no reference to constitutional doctrines such as the rule of law, individual ministerial responsibility and the anonymity of the public service. Nor is there any reference to criteria for ministerial resignation, to third and fourth generations of human rights and to an effective enforcement machinery of human rights of the second generation (civil, economic and social).
There is no right to good administration by the public administration.
Nor are there established uniform principles of good behaviour for tribunals.
Important constitutional offices such as those of the Leader of the House and the Whip are not even mentioned, let alone regulated by the Constitution.
Bearing in mind the above and other deficiencies, the time has arrived for a systematic and thorough revision of the Constitution to update it to current day needs, iron out certain unclear provisions and fill in gaps in the law.
Such review entails the rewriting of a new Constitutional document.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.