The 2nd Republic Constitution: what’s it for? - Robert Musumeci

The 2nd Republic Constitution: what’s it for? - Robert Musumeci

What is a constitution? In simple terms, a constitution is an original form of a social pact, that identifies itself with the society that creates and shapes it. In other words, it is a contract which binds citizens and the State.

Although the constitution is the fundamental law of a country, with which all other laws are to be compatible, it may be modified from time to time by Parliament. Having said that, it should be highlighted that a number of its provisions (such as the removal of the Attorney General from his post) may only be modified with the consent of a qualified two-thirds majority of the House of Representatives. This is to ensure that certain provisions remain entrenched unless there is a broad consensus to provide otherwise.

Recently, the idea of revisiting the Constitution was mentioned by the President. The discussion was taken even further by Parliamentary Secretary Julia Farrugia, who is spearheading a number of other key reforms touching unprecedented territories, in the sense that citizens should be enticed to come forward with their own proposals in the process.

Giving Maltese citizens the opportunity to shape their own pact with society is an unprecedented move even though it would be ultimately up to Parliament in deciding the way forward.

Nevertheless, it is crucial that, as a preliminary step, citizens are familiar with the current setup. Only then will it be possible to identify whether the principles laid out in the current constitution are exhaustive and whether change is necessary. Otherwise, it is useless to attempt new proposals in a vacuum.

In this context, also given the recent episodes, the following questions are worth investigating:

Should the doctrine of Separation of Powers be further delineated? Should more checks and balances than those currently in place be introduced? For example, should the Attorney General remain the chief prosecutor and the legal adviser to government at the same time?

Should the doctrine of Separation of Powers be further delineated? Should more checks and balances than those currently in place be introduced?

Should the Public Accounts Committee, which emanates from the legislative, retain its quasi-judicial character? Should an inquiring magistrate form part of the judiciary? Should it be acceptable for the judiciary to exchange personal views with parliamentary committees, not least those established under the European Parliament?

The role of the President with regard to the granting of pardons also comes to mind. Should the President have the power to grant pardons, remissions or amnesties without further consultation?

Should Acts of Parliament, once de­clar­ed unconstitutional by the Constitutional Court, be removed automatically from the law statute? In other words, should the courts have the power to enforce constitutional rights erga omnes, instead of leaving it to Parliament to decide when, if, and to what extent the Constitutional Court judgment should be implemented?

Should the role of a caretaker government be strictly defined? Should the period between the dissolution of Parliament and the holding of a subsequent general election be shortened?

Should Parliament be bound to take steps within a reasonable set time frame, say a period of six months, once a legal instrument is found incompatible with Strasbourg judgments?

Should the scope of popular referenda to overrule parliamentary sovereignty be widened?

Should our Constitution be realigned with the new socio-economic realities, driven by recent demographic changes and new market conditions?

Is this an opportunity to strip away confusing traditions which hardly make sense in a society with increasing diversity and tolerance?

Should the principles of justice, balance, equity, order, equilibrium, rational relation and fair measure (in other words, the principle of proportionality) be included in the list of basic freedoms?

Should we work towards ensuring more openness and transparency that allow individuals to participate effectively in decision-making and accessing public services?

Should it become possible for those convicted to claim the right for their crime and punishment information to be forgotten after a certain date, regardless of the nature of the crime?

Should prisoners be allowed to vote?

Should it be possible for the Prime Minister to appoint unelected technocrats to sit in Cabinet?

Should the right for an accused to be notified of all the evidence that investigators have in hand be entrenched in the Constitution, as with the right to silence?

At this stage, I do not expect a ‘yes’ or ‘no’ for an answer. But, for certain, this could be an unprecedented opportunity for the Maltese people to renew their democracy and rule of law in the 21st century.

Robert Musumeci is an architect, a  lawyer and a University tutor of administrative law.

This is a Times of Malta print opinion piece

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