One of the current government’s electoral pledges which, for an unknown reason, has been kept on the back burner during this legislature, is the Constitutional convention which supposedly would have paved the way for a Second Republic.
Although a committee for the familiarisation of the Constitution was appointed earlier on during this legislature, this committee appears from its website to have been dormant over the last two years. The last activities reported are in 2015.
The Constitution of Malta dates back to 1964. More than 52 years have elapsed since then and although it has been amended piecemeal several times since then, there has been no holistic attempt to review it. It has been used and abused by political parties in Parliament.
When Malta became a republic its supremacy was suspended so that the two political parties represented in Parliament could do away with the referendum which the 1964 Constitution mandated for constitutional change of certain provisions. This meant that the Constitution lost its legitimacy because the 1964 Constitution had been approved by a popular vote in a referendum.
However Labour Party MPs and a substantial majority of Nationalist Party MPs acted in tandem to bypass the will of the people by adopting an unconstitutional stratagem to do away with a referendum as the Independence Constitution then required ad validitatem for constitutional change.
The Constitution has suffered under both Nationalist and Labour administrations. The former created positions of trust to accommodate its supporters by dishing out jobs to the blue eyed boys and girls in breach of the Constitution. The latter liked the idea and followed suit. At times the two main political parties were, and continue to be, assisted in this flagrant breach through the connivance of constitutional institutions ranging from none other than the Constitutional Court to the Public Service Commission.
As the Constitution has nobody to defend it in real terms for the President of Malta has such responsibility but no power to do so, it is easy to bypass its provisions especially when all constitutional organs are organised in cohort to abuse it.
I would have thought that a Constitutional convention would have approved the text of a new constitution and subjected it to a referendum so as to give it the legitimacy it much deeply deserves. Although quite a number of its provisions have been tried and tested and withstood the test of time, there are others which need to be looked at afresh.
As the Constitution has nobody to defend it in real terms, for the President has such responsibility but no power to do so, it is easy to bypass its provisions
The composition of the Public Service Commission, the Employment Commission, the Electoral Commission and the Broadcasting Authority is a far cry from the representation of the public interest that the constitutional document had willed in 1964. Instead these institutions are apportioned, on a political partisan basis, between the political parties represented in the House.
These institutions are composed by having half of the members representing the Nationalist Party and the other half representing the Labour Party. As to the chair there is supposed to be some form of consultation between the Prime Minister and the leader of Opposition but at times this ends out to be more of a take it or leave it situation. At other times, not even a perfunctory consultation process is conducted by the Prime Minister with the leader of the Opposition. This is far from having these institutions representing the public interest and counterbalancing other constitutional institutions such as Parliament and government.
Once their independence is questioned, they end up nothing more and nothing less than glorified government departments at the beck and call of the government.
During the last 52 years of independence, we have had the Opposition boycotting Parliament and the president as well as calling for the resignation of chairs of constitutional commissions or the Broadcasting Authority, or expressing lack of confidence therein.
We have had instances where every year we used to change the national day or days for Malta such that in order to arrive at some form of bipartisan compromise we now have five, not one, national holidays. This might perhaps qualify us for recognition in the Guinness Book of Records for the State with the most number of national holidays.
We had instances where the Constitutional Court and the Broadcasting Authority – two constitutional entities – were not constituted for years. These happened under both administrations. We have seen the vilification of religion provision in the Criminal Code (which protects in practice the national religion in the Constitution) removed during the last legislature with the approval of both political parties represented in the House of Representatives.
We have witnessed during the last legislature the enactment of laws which are in direct contrast with the human rights provisions of the Constitution – the Constitutional Reform (Justice Sector) Act, 2016 (Act No. XLIV of 2016), the Criminal Code (Amendment) Act, 2016 (Act No. XXXVII of 2016), the Coordination of Government Inspections Act, 2017 (Act No. II of 2017), the Small Business (Amendment) Act, 2017 (Act No. XII of 2017), and the Standards in Public Life Act, 2017 (Act XIII of 2017). There is also the Media and Defamation Bill (Bill No 192 of 2017) which, as drafted, follows the unconstitutional footsteps of these five enactments.
Perhaps it has been a blessing in disguise that the Constitutional Convention has not yet been convened and the Second Republic has not been proclaimed as, by the track record which our Parliament boasts of, with the connivance of the Constitutional Court and some other constitutional entities, the onslaught on the Constitution would have been such as to exacerbate rendering it an object of ridicule that we have now became accustomed to.
I still have to see another democratic country which honours its Constitution more in its breach than in its reverence.
Though the history of the Constitution cannot be said to be a rosy one, one augurs that in the next legislature a Constitutional convention is convened to approve a new constitution which, while building upon the current provisions which have served the State well, ensures that through a holistic review of the Constitution, Malta gets a constitution which it deserves.
Moreover, the constitution, once drafted, should be put to a popular referendum to acquire the legitimacy which it has been robbed of since 1974. The constitution needs to be owned by the people from whom it derives its authority and should not be treated as any other law to be approved by the political parties in the House of Representatives who, at time, are more interested in pursuing their partisan interests rather than the public interest.
Unless the constitution is negotiated with the direct involvement of the people and gains their approval, it will end up to be the product of a bipartisan not a national initiative, deprived of the legitimacy which a fundamental law should enjoy.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.