Joe Brincat, Lawyer

Whether the President of Malta could serve for more than one term is currently being debated with rather conflicting ideas. I believe the issue has been raised because the current President of the Republic is doing a great job and therefore there are those who believe she deserves to be given a second term.

In this regard, it is pertinent to note that both the President herself and the Prime Minister said that there were no discussions in this sense.

From the legalistic perspective the election of the President in Malta is regulated by Article 48 of the Constitution which lays down:

“(1) There shall be a President of Malta who shall be appointed by resolution of the House of Representatives.

(2) A person shall not be qualified to be appointed to the office of President if ­–

(a) he is not a citizen of Malta; or

(b) he holds or has held the office of Chief Justice or other Judge of the Superior Courts; or

(c) he is not eligible for appointment to or to act in any public office in accordance with articles 109, 118 and 120 of this Constitution.”

The last three articles mentioned state that a person cannot be elected President if he has been in the previous three years, a member of the Public Service Commission, (109) or of the Broadcasting Authority (118) or of the Employment Commission (120).

Then tucked in the penultimate article (Art 123) of the Constitution saving the provisions of this Constitution, every person holding a public office may be reappointed, except the President.

Constitution embodies the rules of the game, and so all parties have an interest in the proper functioning of those rules

This apparent disqualification was not placed in its rightful place, with reference to legal drafting. It could have been neater and not misleading, had it been placed in Article 48. In actual fact, I was also misled, until I went through all other articles to arrive finally at Article 123.

Let us examine some examples of the head of State being chosen by Parliament. Article 85 of the Italian Constitution lays down that the president is elected by a joint session of the Lower Chamber and the Senate, and the term of office is of seven years.

But that was no obstacle for Giorgio Napolitano to be chosen for another term, although he decided to resign after a couple of years.

In Germany a similar system of appointment prevails, but there the basic law states that the president may be elected for a maximum of two terms of five years.

The rationale of this provision in Article 123(2) of the Constitution remains unclear.

All institutional posts are saved and an incumbent may be reappointed, either immediately or after a period of time. Naturally there are examples which are subject to age limit, which is not the case with the choice of the president. In Italy he must be 50+, in Germany 40+, without any maximum age.

The only provision similar to one-term limitation for the president is to be found in the term of office of adjudicators in the Small Claims Tribunals. They are there for five years, not renewable. Therefore, the president might be seen as being placed on the same footing as a president of a tribunal. The interesting thing is that Article 123 of the Constitution does not need the two-thirds majority to be changed. It is not one of the entrenched articles. So a simple majority in Parliament can be enough to delete the prohibition for a second term for a president.

These comments, which reflect my personal opinion, are being made in the bigger scenario of what is reasonable in the Constitution. It must be remembered that the Constitution embodies the rules of the game, and so all parties have an interest in the proper functioning of those rules.

Errol Cutajar, PN candidate

Over the last weeks, the media spread indiscretions of a possible wish of the present President of the Republic Marie-Louise Coleiro Preca to serve a second term. The ensuing discussion has largely overshadowed the real issue: that of a much-needed constitutional reform to address present shortcomings in the checks and balances required on government in this country.

Our Constitution foresees the establishment of a government to serve its people. The people are the sovereign beneficiaries of our Constitution. The government is merely the body entrusted to serve them. This aspect should condition and qualify every single act of government. But, is that the case at present?

The celebrated judge of the European Court, Vanni Bonello, declared in the past that our Constitution was written by gentlemen for gentlemen. Over the past years our country has taken a few bends downwards when it comes to gentlemanliness. The actions of government are constant testimony to this. Gentlemen trust each other and speak openly. Not so government actions on the electoral register, where essential data is kept hidden from the Nationalist Party.

Apart from the role of the president we may need to review the role of the prime minister

By hiding matters from the Nationalist Party, the government is not simply disrespecting the Opposition and hence, Parliament, it is also disrespecting a growing chunk of the population demanding more transparency in public administration.

Opaque electoral registers are, unfortunately, just one example from a full list of actions demonstrating the contempt of this government to our institutions and the constitutional guarantees of fairness and inclusion they are meant to promote.

Back to the role of the President of the Republic, the question here is not whether that role should be limited to one five-year term, on which we are open to debate. The question is whether the President of the Republic should be granted a stronger role of scrutiny over government to ensure that our institutions effectively serve all the people of Malta. In essence, the role of the president should be strengthened to ensure that gentlemen, and we hope, many more ladies, behave as such.

The Nationalist Party will be coming up with concrete proposals of how this can be achieved. In the meanwhile, we want to trigger a reflection process which goes beyond politicians and the nitty-gritty of sections of the law and roles of constitutional bodies.

There are a few existential questions which deserve wide public debate. Apart from the role of the president we may need to review the role of the prime minister.

In a two-party system like Malta, should the prime minister effectively exercise all the power to appoint and remove the police commissioner, the ombudsman, the chief justice, the European commissioners and finally the President of the Republic?

The moment one takes away the gentlemanliness from the equation you realise that the safeguards of our Constitution fail to secure their intended purpose, because politicians of dubious intent can easily go around those same safeguards.

The strengthening of the roles of the president becomes even more imperative in this light. Another measure to put all exercise of power to an altogether higher level would be to include a structural checks and balances element between the role of the prime minister and the role of the president whereby the president would be appointed by Parliament on a proposal of the Opposition rather than on a proposal by the government it would need to keep under scrutiny.

The previous Nationalist administration came closest to that with the appointment of President Emeritus George Abela. Those were indeed times when our Constitution served as a book by gentlemen for gentlemen.

If you would like to put any questions to the two parties in Parliament send an e-mail marked clearly Question Time to editor@timesofmalta.com.

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