Constitutional amendments needed to reinforce the rule of law, good governance
We need to introduce new concepts, including good governance, accountability, transparency and openness, says the dean of the Faculty of Laws
The dean of the Faculty of Laws Kevin Aquilina explains the importance of the rule of law and why it is in ill health in Malta right now – as well as what should be done to fix it. Interview by Philip Leone-Ganado
How would you rate the health of the rule of law in Malta?
I wouldn’t rate it highly. There are a number of problems in our legal system, problems which didn’t emerge in the last few years but in some cases go back to Independence.
We have two main parties which alternate power between themselves and effectively do what they want. You have Parliament breaching the Constitution, government breaching the Constitution and the judiciary breaching the Constitution.
Do these problems emerge from the Constitution itself or is the problem with the institutions’ approach?
I don’t think the problem is with the Constitution. The Constitution states what the law is. The problem is with the three organs the Constitution creates – Parliament, Cabinet and the judiciary – which in some respects do not comply with the supremacy of the Constitution. It’s an institutional problem, where the institutions perceive themselves to be above the law.
Under the rule of law, you are governed by the law; you are not superior to it. Parliament can change the Constitution, but while it remains as it is, you have to comply with its provisions as it is today, not as you want it to be tomorrow.
You say these problems didn’t begin a few years ago. How have they progressed over time?
Things have worsened rather than progressing favourably. The more time passes, the worse the situation gets. I attribute this mainly to our political party system. Since 1964, we have developed into a bipolar system, with two parties alternating power between themselves.
So we end up, for example, with the anti-constitutional institute of positions of trust, which the Public Service Commission has stated in three annual reports runs counter to the Constitution. The Ombudsman said the same one month ago. But still both parties, when in government, continue to dish out jobs without going through the proper procedure.
Is there a lack of effective constitutional enforcement?
Yes, that’s a general problem, because the lack of enforcement cuts across the whole of society. The government solves certain enforcement problems with amnesties: you see it with the Planning Authority, Income Tax, VAT.
At a higher level, naturally, it’s more serious. If the institutions themselves are not functioning, if they are not complying with the law they are supposed to be implementing, there’s a serious problem.
In light of current events, there’s been a lot of talk over an institutional paralysis. Is this a consequence of the problems with the rule of law?
I think it’s a problem of information. Take the magisterial inquiries into the Panama Papers, into the murder of Daphne Caruana Galizia. The difficulty is that we don’t know what the institutions are doing, because everything is covered by secrecy.
The Police Commissioner gives a press conference but says nothing, because the Criminal Code doesn’t allow him to divulge information. What is Magistrate Aaron Bugeja doing? What is the Attorney General doing? We have no idea, because everything is covered by secrecy.
Even information that is not covered by secrecy is often not forthcoming. The administration uses the Freedom of Information Act to deny access to information, rather than to provide it. The law exempts certain institutions from the provisions of the Act, even if the information in question is not harmful to the interests of the State.
Transparency, governance and open government are part of the rule of law. You can’t have a situation where the government hides behind rules to deny access to information.
There is a lot of focus right now on the manner of certain appointments. To what extent do you think appointing the Police Commissioner by a two-thirds majority in Parliament is a positive or a necessary measure?
I would not limit myself to the Police Commissioner and the Attorney General. I would also look at the Broadcasting Authority and other constitutional commissions and the way they are appointed, right now half from government and half from the Opposition.
I would look at the judiciary: in the UK there is a totally independent judicial appointments committee, where it is the judiciary appointing and disciplining itself, whereas in Malta appointment is made by government and discipline by Parliament.
The Police Commissioner and Attorney General are just part of this picture where the main public administration offices are filled up by the government, often without a two-thirds majority. Even the President of Malta is appointed and removed by a simple majority of the House.
Is this a question of concentration of powers?
Essentially, the winner takes it all and the loser gets nothing. The fact that you have won an election doesn’t mean you can ride roughshod over existing laws, or that you can appoint all your people to top positions without taking meritocracy into account.
Being a majority doesn’t mean you can do what you want and ignore the rights of minorities. The rule of law has to look at the whole of society, at the common good. Fundamental human rights don’t only apply to the party that won the election and the people who voted for it. Accountability applies to the government.
What are the consequences to ordinary people of State institutions not functioning as they should?
The rule of law isn’t something abstract; it has very concrete consequences. If you’re applying for a job and someone else gets the job simply because a minister passed a good word, you’re affected by a malfunction in the rule of law. We can’t just say this is an institutional problem that the political parties need to solve. Misrule of law will affect citizens in their daily lives.
Daphne Caruana Galizia’s family have said it was a breakdown in the rule of law that allowed criminality to flourish, and in some way contributed to her murder. Do you agree?
It’s difficult to say without knowing the exact motives behind the homicide. Her murder has certainly affected freedom of expression. You can’t live in a society where the fourth estate risks ending up dead for expressing an opinion.
If there’s a collapse in freedom of expression, there’s a collapse in rule of law. This worries me in the context of the government’s proposed Media and Defamation Act, which was an attack on freedom of expression and therefore an attack on rule of law.
But in broader terms, does criminality flourish when the rule of law is neglected?
Yes, because you’d have a situation where corruption thrives. When you’re studying the rule of law, you have to look at the level of corruption: the more corruption, the higher the probability that the rule of law is not functioning.
What can be done to address the problems?
First, we need to look at the Constitution. It has been with us for 53 years, and like any other law, it has to reflect the needs of society. We need to introduce new concepts, including good governance, accountability, transparency and openness.
I would also look at the human rights provisions; which at the moment do not consider ‘new’ rights like digital, communication and environmental rights. I would advocate more decentralisation as far as local government is concerned.
I would revisit the method of appointment of constitutional committees, including that of the President, and ensure a separation of duties between the Attorney General and a new director of public prosecutions.
What would the process look like?
I wouldn’t like it to be Parliament carrying out the amendments. The tendency there would be to look at the interests of the political parties rather than society at large.
I would prefer a procedure where civil society is involved: MPs, mayors, State bodies like the MCESD and the Equality Commission, and civil society at large, including human rights and environmental groups. I would ultimately submit the proposed Bill to a referendum to ensure it has the legitimacy it requires.
How do you define the rule of law?
“My preferred definition is a very simple one: the people should obey the law and be ruled by the law. ‘Rule by law’ means a number of things: there shouldn’t be arbitrariness, the government has to abide by the law, there must be equality before the law, there should be respect for human rights and fundamental freedoms, there should be a system of checks and balances and separation of powers between the three organs of the state (the legislature, the executive and the judiciary), and the courts should be accessible by the public, so the public can challenge government action or a law enacted by Parliament.”
How Parliament, government and the judiciary breach the Constitution
“With government, I’m talking about political party financing, which both parties have breached. It seems there is one law for the people and one law for the political parties.”
“Parliament has passed a number of laws which run counter to human rights or the Constitution. The media and defamation bill is in breach of a number of provisions, most notably freedom of speech.”
“I have criticised a number of judgements passed by the Constitutional Court, such as the one related to the seats in the 2013 and 2017 general elections, where I believe the court breached an article of the Constitution on which court should decide on matters related to membership of the House.”
Rule of law
Today, the Times and Sunday Times of Malta launch a campaign aimed at raising awareness of the need to strengthen the rule of law, bolster the independence of the institutions and increase controls over the exercise of power by the government of the day.