Issue link: https://maltatoday.uberflip.com/i/1197486
7 maltatoday | SUNDAY • 5 JANUARY 2020 NEWS MATTHEW VELLA THE devil is in the detail, sure- ly enough, says Prof. Joseph Cannataci, author of a contro- versial proposal in a package of legal amendments on the Malta Security Services, to give power to the President of the Republic to dismiss a prime minister. Controversial, because since 1974 the largely symbolic role of the President has been that of presenting a benign and unifying figure straddling over Malta's cut-throat partisan culture. Yet even in 2020, the pros- pect of according George Vella the power to dismiss a prime minister on the grounds of in- controvertible evidence that could damage Malta's interna- tional reputation seems to be a direct affront to the sovereign power of the Maltese elector- ate to choose its leaders. Cannataci's proposal was made as part of a package of amendments he submitted to the Maltese government in his role as a United Nations spe- cial rapporteur on privacy. But how can a President go beyond the understanding of what the Maltese have of their constitu- tional role to ask a prime min- ister to resign? Could George Vella be granted the power to dismiss his old boss, a PM elected to power with a major- ity close to 40,000? Cannataci builds the ra- tionale behind his proposal to – theoretically – give the President an unimpeachable argument to dismiss the prime minister. The first would be a clause that only gives the President this kind of power in a clear, explicit way. Importantly, Cannataci says it should be the President who becomes the ultimate report- ing authority for the Malta Se- curity Services instead of the Prime Minister. He says that such information from the MSS "or on account of strong evidence in the public domain" – again, not a proposal without controversy – is made available to him, "the President shall remove the Prime Minister from office on grounds that his behaviour or those of his close associ- ates may be exposing him or them to imminent prosecu- tion for serious crimes or are otherwise seriously prejudicial to the national interest or to the international reputation of Malta." Cannataci offers a hypotheti- cal example, where the head of the MSS collects incontro- vertible evidence that a prime minister or his associates are on the take, or have indeed created suspicious offshore structures. In his proposed changes, the MSS head would instead go to the President, and not the Prime Minister. "Until that moment in time, knowledge about the mat- ter would be restricted to a handful of people: the Secu- rity Commissioner who would have authorised the surveil- lance, the head and the agents of the Security Service who would have been involved, and possibly officials from the Financial Intelligence Analy- sis Unit. The intelligence may possibly not yet have even been given to the Police, given its sensitivity." At this point, the President would – theoretically – see such detailed evidence and ask the PM to his office and to resign. Cannataci suggests that the President could consult the judges in the Commission for the Administration of Justice, making any potential dis- missal one in which both the head of the executive and the ju- dicial branches of govern- ment are involved. "The proposals should not be considered alone. They should be part of a much wider debate which examines all aspects of the rule of law in Malta. Once that debate takes place, calm- ly, under the watchful eye of a Prime Minister who is sin- cerely committed to getting things right, then the pieces of an intricate constitutional jig- saw puzzle can be brought to- gether and worked on carefully to make sure that they fit will together well." Cannataci insists this clause is explicit in according such a power to the President of the Republic. "That way, at least, one can have a reason- able debate about the matter. The French call this process one of having a concrete pro- posal 'sous les yeux', with the chief merit of getting people to think properly and more deep- ly once they see things set out in 'black and white." Secondly, the power vested in the President would be per- fectly democratic if the Head of State has been voted in by the House by a two-third ma- jority. "Democracy does not mean that absolutely everyone who has any form of power needs to be elected directly by the people. In most countries in- cluding Malta, judges are not elected, yet they have great power, even the power to over- turn an election result on some occasions. "The President is part of the executive and not the judiciary so this is a very delicate matter in terms of constitutional the- ory and the balance of powers. But Malta is not a Presidential Republic, at least in name. For we have a prime minister who in terms of law and practice is as powerful as most pleni- potentiary presidents. Indeed, the major accusation is that in the Maltese system there is too much power concentrated in the hands of the Prime Min- ister." Cannataci says that in this way the powers of the PM can be balanced out by those of a respected constitutional fig- ure, the President of the Re- public. He concedes that such a proposal would also need ad- ditional safeguards. Cannataci argues that the power of a president to dismiss the PM would be in addition to processes of rule in law in Mal- ta, which, however, can easily be abused due to inefficiency – for example, the delays and duration of lengthy magisterial inquiries. In this sense, Canna- taci's proposal could however, and dangerously, short-circuit existing due process in a con- troversial removal of a popu- larly-elected party leader. "We can afford to do so more easily when the national inter- est is not at stake. The problem that my proposal is intended to address is what should hap- pen, what safeguards should the country put in place, when faced with an abnormal situa- tion where the President must take the national interest into account," Cannataci says. But he also overstates the problems that befall on a coun- try when the 'wrong' leader is in power – which even then, is a highly debatable notion. Are Hungary's and Poland's lead- ers 'wrong' because the EU says so? Are populist strong- men 'wrong' if they guarantee higher standards of living for lower-income groups? "A President would be acute- ly aware of what would happen if the wrong Prime Minister remains in office, of the dan- gers of loss of international trust and credibility which that would bring and the terrible impact that may have on the Maltese economy. "The jobs of thousands, nay tens of thousands, of Maltese workers, everybody's pensions and social welfare, hospitals, education etc. would all be at risk if the economy tanks on account of international loss of confidence and that is the type of hard call that a President would be expected to make." Such a judgement call can cut either way, Cannataci says. "There is nothing undemo- cratic about a process where one becomes Prime Minister knowing full well that one of the safeguards in place is the possibility of removal by the President in certain exception- al circumstances. It would then form part of 'the contract of employment'. In the same way that privacy rules are different for politicians when, for exam- ple, it comes to their financial assets, they would know that the political consequences of their actions or those of their close associates could be dis- missal by the President. "Due process would still be carried out in a court of law and no Prime Minister would risk imprisonment unless proven guilty after due process, but in the meantime the politi- cal consequences may have to be different because the loss of international credibility is a risk which the country cannot afford to take and would not be prepared to take, which is why it would have given a mandate to the President to exercise judgement in such matters." Power to the President? Should the President of the Republic have the power to dismiss a prime minister? The UN's special rapporteur Joseph Cannataci has a few ideas… "There is nothing undemocratic about a process where one becomes Prime Minister knowing full well that one of the safeguards in place is the possibility of removal by the President in certain exceptional circumstances" UN special rapporteur Prof. Joseph Cannataci What if the law allowed George Vella to ask Joseph Muscat for his resignation?