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How would experts reform the Constitution?

10 experts have their say

Anthony Manduca asked some of the country’s eminent figures in law and politics about the weaknesses in the rule of law in Malta and the best way forward for constitutional reform.

These two questions were asked of all the respondents:

■ In your opinion, what aspect of the rule of law in Malta most urgently needs to be strengthened?

■ What type of set-up would you propose for the process of constitutional reform?

Giovanni Bonello

Former Judge of the European Court of Human Rights

“The rule of law must reacquire its genuine and pristine meaning: that the only measure of right or wrong in democratic governance is whether an act or an omission is according to law or not. This no way means that anything according to law is right. It means that anything not according to law is wrong. 

A country cannot claim to follow the rule of law when all the prosecuting authorities are controlled and muzzled, when the judiciary is packed with party inepts, when the police force employs convicted criminals, when impunity is guaranteed for anyone on the right side of the political fence, when court-certified felons are promoted, when prosecutions are sabotaged and when those who try to follow up political corruption are battered, when the voice of protest is silenced in a blast of Mafia.

There is another name for this, and it is not the rule of law.

There is no rule of law when the law is diverted to the advantage of criminality and to the suppression of integrity.

The process for amending the Constitution is neither arbitrary nor left to the whim of any party or majority. It is laid down in detail in Article 66 of the Constitution itself.

Of course, before embarking on any journey of constitutional reform, every effort should be made to obtain maximum civic consensus for renovation, and the expertise of constitutional lawyers should be taken on board.”

Lawrence Gonzi

Former Prime Minister

“I will answer by echoing a statement made recently by Judge Giovanni Bonello (The Malta Independent, October 31) when asked the same question: ‘The Rule of Law is a very vulnerable value, and only survives where there is a total commitment to make it the rule of governance’.

In other words, we may choose to focus our attention on re-engineering our democratic institutions, but the real test lies in whether the persons chosen to lead those institutions are fully committed to the values of integrity, honesty, objectivity and strength of character to uphold those same values, especially when challenged by those who appointed them in the first place.

I am perturbed by the very idea of anyone thinking that Malta’s democratic deficit can be resolved by means of some process for constitutional reform. I feel even more perturbed by the fact that whoever is pushing this proposal chooses the dramatic and tragic moments we are going through as an appropriate context for this debate to take place.

I personally believe that we can only have a ‘serene’  and constructive debate on those very few aspects of our Constitution that need to be modernised when we reinstate the values that should guide us all in our daily decisions and when the leaders of our nation lead us by their shining example of those values.”

Conrad Portanier

One of the founders of Advocates for the Rule of Law

“By way of a general and overarching principle, the Constitutional Convention should focus on strengthening in a meaningful way the checks and balances between the  three organs of the State: namely, the legislature, the executive and the judiciary.

A lot of preparatory work was already done in 2013 by the Commission for the  Holistic Reform in the Field  of Justice. This report was commissioned by the Labour government itself, but to date remains largely ignored.

This report recommends, amongst other things, the establishment of an autonomous body to administer the courts and a complete overhaul in the method of appointment and removal of members of the judiciary, to curb the powers of the executive in this regard.

The 2016 reforms adopted by Parliament do not go far enough and have been widely criticised in legal circles.

It also calls for the establishment of an independent General Prosecutor having security of tenure under the Constitution. The function of prosecution should be removed from the duties of the Attorney General, since the latter might have a conflict of interest when also acting as chief legal adviser to the government.

I suggest that Parliament instruct the President of Malta to convene a constitutional convention chaired by either an ex-President of Malta or a retired judge.

The political parties should, in my view, be represented but have  a marginal role in this exercise, and the convention should be steered by academia, retired  judges and senior lawyers appointed by the Chair of the Convention.

Finally, any amendment to the Constitution should be approved by a national referendum.”

The comments above represent Dr Portanier’s personal views.

Ugo Mifsud Bonnici

President Emeritus

“There are two principles implied in the concept of the rule of law, which is a pillar of a democratic State.

One is that government is to be conducted according to law. On the continent of Europe, this is expressed as Rechtsstaat, Stato di diritto, État de droit. The other principle is that the Law is sovereign and supreme, and is to be obeyed by all authorities of the State.

These principles are enshrined in our Constitution, and all power of the State in Malta is subject to law. When in breach of this principle, the authorities have been challenged in the courts. The decisions of the courts have also been appealed from higher courts. The final and absolute decisions have been respected.

The Constitution thus embodies the concept of the rule of law. This does not mean that the spirit of the Constitution has always been adhered to. What we need to strengthen is the culture of justice, impartiality and even-handedness of those trusted with power.”

Vincent de Gaetano

Chief Justice Emeritus

“I am already on record as having said that the independent, effective and competent investigation of serious crimes, including plausible allegations, or reasonable suspicion, of such crimes having been committed, is crucial for the rule of law.

The Chief Justice took up aspects of this theme in his annual address at the inauguration of the current judicial year. Neither he nor I were attempting to re-invent the wheel.

Writing in the early part of the fifth century, St Augustine asked rhetorically, ‘Remota iustitia, quid sunt regna nisi magna latrocinia?’ – ‘If you remove justice, what would States be but big bands of thieves?’ (De Civ. Dei IV, 4).

Intimately linked to this issue is that of the institutional (as distinct from the constitutional) indepen-dence of the administration of justice – the provision of adequate resources, training and the proper selection of candidates for the Bench, including the Chief Justice.

I do not believe that we need to rewrite the entire Constitution in order to strengthen the rule of law. Any constitution, indeed any law, can, to use Rudyard Kipling’s words, be ‘twisted by knaves to make a trap for fools’. What is necessary is a clear purpose and honest commitment.”

Louis Galea

Former Cabinet Minister, former Parliament Speaker and former member of the European Court of Auditors

“We need more credible, effective and trustworthy checks and balances. We need stronger mechanisms to check and balance the various institutional, political, administrative, digital, financial and economic powers and functions of the State and its government. We need to scrutinise the current workings of all institutions, in particular Parliament, the Judiciary, the Executive and broadcasting.

It is time for such a reform. 

It is doable, while at the same time enhancing good governance, governability and the country’s stability. The bottom line, however, will always continue to be the integrity, honesty, competence and moral backbone of the people entrusted with these powers and functions, whichever way they are chosen and appointed. So far [the process of constitutional reform] has mostly been top-down. Now we need a bottom-up dialogic process. Such a reform would obviously need a proper legal basis, but it would also need to enjoy the force of moral authority so that it can be widely recognised as legitimate. The process needs to be free, as much as possible, of the partisan cut-and-thrust which makes it much more difficult to have a calm, popular, objective, educational and informative dialogue.

A rational and reasoned dialogue will require the participation of civil society – NGOs, unions, the Church, constituted bodies, the university and the other educational institutions, not least youth and women’s organisations. Civil society must be the central interlocutor with the official political actors – Parliament, government and its relevant departments, and the political parties and movements. After all, the aim is to produce a people’s Constitution.”

Joseph Said Pullicino

Chief Justice Emeritus

“One needs to recognise that, though the country still enjoys the trappings of a modern democracy governed by the rule of law, the basic essential elements of good gover-nance that include accountability, transparency and the uniform and universal enforcement of laws are being swiftly and dangerously eroded.

There is a manifest weakening of institutions that have the function to ensure law and order and to guarantee that all are subject to the same laws. Authorities charged by law to keep the public administration accountable are no longer effective as they should be and public trust in them is being undermined.

While urgent steps need to be taken to restore and guarantee the independence, autonomy and effectiveness of these authorities and institutions, the rule of law could best be served by a constitutional reform that would ensure a strong Parliament and a more accountable Executive.

However, it is even more important to ensure that the persons entrusted with the responsibility to keep the government accountable and to fully ensure the observance of law and order are honest, upright and capable of fulfilling their duties without fear or favour.

Any revision of the Constitution should not be entrusted solely to political parties or to the House of Representatives. It should also be ratified by the popular vote. It would be advisable to have a wide consultation at different levels.

The consultation process should in its first phase promote an in-depth study by a core group, including representatives of the political parties, the best available academics in public and administrative law, political thinkers and legal drafters.

Once this study has been completed, the findings of the expert group should be submitted to the widest public consultation possible.”

Austin Bencini

Constitutionalist

“The Constitution should guarantee our freedoms and liberties by limiting the powers of the State. These freedoms depend on having the separation of powers so that no one person or institution has unchecked power. This is one of the main weaknesses of our setup and needs urgent attention.

Our freedoms depend on the observance of fundamental human rights and therefore having an independent judiciary, which also needs much strengthening; our freedoms depend on everyone getting what the law grants to each person without political fear or favour.

Here we are in critical zone.

All the above and much else determines the existence of the rule of law in Malta. There is much to be done without further delay by civil society to bring the political class in line through constitutional reform.

Once these are the ones to be controlled, they should have as little a say as possible in constitutional reform”.

Alfred Sant

Former Prime Minister

“Issues being raised about the rule of law and constitutional reform are mostly red herrings, magnified by the horrendous murder of Mrs Caruana Galizia, and basically used to mitigate the electoral defeat of the PN this year.

Identifying the rule of law as a basic issue camouflages the problems of organisation and modernisation that have riddled the police, the judiciary and the army for decades.

Through personal experience, I know that some of those now lamenting the rule of law were in the past against tackling these real problems. Ongoing exaggerations about how law is serviced play into the hands of those in Europe and elsewhere who dislike the outreach of the services sector in the Maltese economy and want to kill it.

Moreover, following long years of stagnant economic performance, the unprecedented burst of economic and social development of the last few years has created new fractures in society. They are straining further our organisational resources, including for security.

Meanwhile, talk about constitutional reform indulges our habit by which when organisations fail to deliver, we circumvent the problem by setting up new structures. Over decades, constitutional provisions were implemented in bad faith by all. Unless this changes, it’s useless to decree any amount of reforms to the constitution.”

George Hyzler

President, Chamber of Advocates

“The strengthening of our institutions both in terms of competence of the persons appointed at all levels, as well as in terms of the structures themselves, is fundamental.

Political appointments should be reduced to a minimum and all key appointments should be made on the basis of competence rather than so-called ‘trust’.

Key appointments would include regulators, heads of authorities and public Corporations, the Chief Justice, Commissioner of Police, Head of Armed Forces, Head of Secret Service, etc.

The setting up of the Judicial Appointments Committee that involved a change in the Constitution (even though nowhere as far-reaching as we had hoped it would be) was an example of political maturity.

Most importantly we need to foster a culture of accountability, which in my view is seriously lacking.

A Constitution Reform Commission that would have the support of both sides of the House would in my view be the way forward in terms of set-up.

Any reform would necessarily require the support of the two major political parties, and therefore any process would require their full backing.

The Chamber of Advocates is in the process of commissioning a report on the strengthening of the rule of law. This together with other reports and opinions of experts and Civil Society should contribute to the national debate.

Following the report, the Chamber will organise a conference on the subject that too would hopefully prove useful.”

Rule of Law
The Times and Sunday Times of Malta are running a campaign aimed at raising awareness of the need to strengthen the rule of law and increase controls over the exercise of power.

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