Issue link: https://maltatoday.uberflip.com/i/803478
14 'CONSTITUTIONAL reform' is one of those subjects that crop up from time to time, cause a bit of a dust-storm in the media, and then quietly fizzle out into nothing. Sporadic efforts (mostly futile) have been made to address certain specific lacunae – the electoral process being the most cogent example – but despite electoral promises (by both Labour and PN) to hold a convention on Consti- tutional reform, the issue is now arguably at the very bottom of the agenda. What happened in the mean- time? And why is it even necessary to revisit this legal document in the first place? Recent developments seem to point towards a few answers. Since the last election, numerous scandals and controversies have engulfed the present government – nearly all of which arose directly from the lack of proper institu- tional checks and balances within the country's operating system. Questions are now asked about the competence of key institution- al roles such as the Police Com- missioner (who has been accused of unwillingness to investigate cabinet ministers); and more re- cently, the party-financing scandal revealed the impotence of existing regulations to prevent abuse. It is as though the Constitutional system bequeathed to us by the brokers of Malta's Independence is now springing leaks from all angles. And few have been point- ing this out more often and with greater urgency than Martin Sci- cluna. As director-general of the To- day Policy institute (a post he only recently vacated) he oversaw a comprehensive report on the sub- ject that was more or less totally ignored. Even earlier, his role as advisor to government on national security exposed him to the inner functions of several constitution- ally-appointed bodies (not least the AFM). As we meet for this interview, he almost instantly refers me to a pile of reports on the table. Constitu- tional reform is but one of many: others deal with the environment (Scicluna is incidentally also a former chair of Din l-Art Helwa), social security, pensions, immigra- tion, defence, health, etc. Some, he hastens to add, were well-received by government, and many of the proposals were taken on board. Others were less fortu- nate; and in the main, these either proposed curtailing government's power through checks and bal- ances... or tackled 'politically sen- sitive' (i.e., 'vote-losing') issues.. "The report on the future of Malta's social security system was one they absolutely didn't want to touch," Scicluna recalls."There was one other report on Broad- casting which, again, was present- ed to the minister of justice... but despite lots of promises, it wasn't followed up. I would like to think that, to a greater or lesser extent, all the others were picked up in one shape of form..." On other notable exception was the 2014 report entitled: 'A Review of the Constitution at 50: Rectifi- cation or Redesign?' "The report of constitutional reform was, in my view, the most important one we produced. If you look at any of the problems Malta confronts at the moment, the way our whole government set-up works, it all comes down to this. One of the major commitments in the [PL] manifesto was that there would be a Constitutional con- vention, which we hoped would consider some of the aspects high- lighted in our report. None of that happened. This, to my mind, is a major omission from this govern- ment's electoral promises; and it is one which quite frankly haunts us. Because until we've sorted out the Constitutional issues in way we operate, we are not going to move forward..." But what is so wrong with the Constitution, anyway? The report itself describes it as having "proved to be an adaptable, well-perform- ing and legitimate" document... "The problem is not with the structure as it is today. It is the way it is operated. The truth of the matter is that our Constitution - which is essentially based on the Westminster model – is depend- ent on the government of the day obeying its spirit. The letter can be bent any way a powerful govern- ment wishes it to be bent. And this government, with its huge majori- ty, has used and abused the institu- tions in all sorts of ways: bringing us to the point that there are ques- tion marks about government's governance and its influence on Malta's way of life. To me, the major target of any solution to our difficulties must start with that..." What are the Constitutional is- sues in most urgent need of atten- tion? "First and foremost the system- ic checks and balances, because whichever way you look at it, the three arms of the Constitution – the executive, legislative and ju- diciary – all owe their power and control to one man: and that's the prime minister. So if you get an authoritarian prime minister, as we had in the 1980s – or as we have now: a strong prime minister, who firmly believes in the way he wants to go – the checks and bal- ances simply aren't in place. The institutions aren't strong enough, because they all owe their exist- ence directly to the prime minis- ter. That is really the area we need to look at if we are to change the way we operate to a more efficient and democratic system." Scicluna outlines various enti- ties – including the Broadcasting Authority, the Electoral Commis- sion, the Planning Authority, etc. – where all the key positions are at the discretion of the government of the day. "But I would go back to basics, and start with the top of the struc- ture: the President. The President is very much elected by the will of the prime minister. If the prime minister has someone he wants to kick upstairs, or wants to do someone a favour, he can make him President. We proposed, in this report, that there should be an electoral college made up of the 'great and the good': I would define that as being composed of former prime ministers, former speakers, former chief justices – that sort of calibre of person – who are no longer involved in the knockabout of daily politics, but who have done their bit for Malta and have a commitment to the na- tion's well-being. They would form an electoral college to put forward to the PM three or four names: not necessarily politicians... person- ally, I don't believe that only politi- cians can make good presidents... there are good people around. One doesn't have to mention names. You start with an electoral college that makes proposals: then the process reverts to the prime min- ister, who selects a candidate and seeks two-thirds majority approval in the House..." The present system, Scicluna argues, damages the office of the President itself... which, by defini- tion, should be above party poli- tics. "In fairness, I think – from my direct experience and from what I've read – none of our presidents has so far failed us. But they have simply been heads of state as a symbol of government. I would go further: in our report we also pro- posed a Council of State, made up of the same kind of people I men- tioned earlier, who would advise the President on a whole range of things that would be devolved to the Presidents' responsibility. The thing we are weakest at is choosing the right heads of our institutions: the Ombudsman, the Police Com- missioner, the Electoral Commis- sioner... all these are vitally impor- tant for the governance of Malta. All of them are at present hand- picked by the prime minister. If you had a Council of State choos- ing candidates, which are then ap- proved by the President – not the prime minister – I suspect that the man in the street would be more confident of the calibre of people being put forward..." A further tier of checks and bal- ances could take the form of a par- liamentary interview system along the lines of the European Parlia- mentary 'grilling sessions'. "All of that would bring about a sea-change in all the areas of weakness we've got at the mo- ment. It would introduce checks and balance, and hopefully also a non-politicisation of these cru- cially important jobs and institu- tions in Malta. It would also give the President greater status than just a rubber-stamp for the gov- ernment..." At the same time, what we're talking about is not a minor tink- ering of the system: the proposed change would radically alter the power structure of the country. The role of the President would radically change, too. It could be argued that, under those circum- stances, it should be the electorate to choose their President. Does Scicluna agree? "No. We did consider it, but I think it would be a step too far. As for the role of the President, there would be changes, yes. But Cabinet's authority would not be undermined. The executive would still be able to do its job. And I think one of the strengths of our system is that the first-past-the- post method gives us a two-party system that - for better or for worse – allows governments to function without going through all the coalition-building process that goes on in other countries. In Mal- ta, I believe that would be cultur- ally alien to the way we operate..." Yet the electoral system is also one of the things that many (in- cluding smaller parties) argue needs to be changed. The current system might have its merits... but it also condemns us to a choice of only two parties which (let's face it) resemble each other on most issues... "I think that's true; but the ad- vantages outweigh the disadvan- tages. The advantages are that, as Interview By Raphael Vassallo maltatoday, SUNDAY, 26 MARCH 2017 This government, with its huge majority, has used and abused the institutions in all sorts of ways: bringing us to the point that there are question marks about government's governance GOVERNANCE Whichever way you look at it, the three arms of the Constitution – executive, legislative and judiciary – all owe their power to one man: and that's the prime minister POWER The Constitutional