Richard Cachia Caruana served as Chief of Staff to various Nationalist administrations and was Malta’s permanent EU representative until 2012. The PN strategist has now broken his silence… to say he agrees with Prime Minister Joseph Muscat on term limits. This article first appeared on Lovin Tomorrow.
I do. I really do agree with Joseph Muscat about term limits for prime ministers. Possibly for some of the same reasons too. By the end of the current legislature, this constitutional and political post will have existed, albeit under a different name for some of the time, for over a hundred years. And during this period, particularly since 1971 but especially recently, the powers of the incumbent have increased dramatically notwithstanding the fact that, in the main, a prime minister’s functions have remained the same on paper.
What has happened to cause this? Most holders of the office have understood and respected both the written and unwritten constraints on the exercise of prime ministerial powers. Also, most holders of the other offices of state have done the same in respect of their own posts. However, the Xarabanking of Maltese society has meant that the unwritten constraints are not worth the paper they could have been written on – a former Labour leader is said to have described these unwritten constraints as ċuċati (it was probably something ruder). If something is not specifically illegal it has become acceptable. Because of this, the same ‘powers on paper’ now mean something completely different. And reversing the damage when governments eventually change is very difficult, whatever the intentions of a new holder of the office.
Once an individual is sworn in as prime minister, all national appointments become, in one way or another, his or hers to make. Presidents, ministers, judges, magistrates, key offices of state, civil servants, as well as the heads of the army, police, constitutional commissions, statutory bodies, educational establishments and government companies all owe their appointments to the prime minister. In only a few cases – judges, magistrates and attorneys general – does this not also include the power to remove appointees from office. Of course, many of these appointments have long been those of prime ministers to make but most previous holders of the office felt bound by the ċuċati as did those recommending people to them for appointment.
As to the holders of the other offices of state, bit by bit their voices have become muted either because their posts have been neutered by law or because it is easier or more rewarding to go with the flow. While we have seen an acceleration of this process in recent years, it started quite a while ago. The president lost his or her direct influence on legislation in 1964 while his or her indirect influence has declined since 1974, when it was decided that the appointment and removal of a president was to be by a simple resolution of the House of Representatives and future holders were to be limited to a single term of 5 years. A president is still protected from judicial review in the exercise of his or her constitutional powers but that is more likely to help someone who wishes to abuse these powers rather than defend them. What’s a possible solution here? Four new measures would go a long way to re-introduce some checks and balances: increase the single presidential term to seven years, re-introduce the right of a president to grant or withhold assent to new laws, elect the president by a two-thirds vote in parliament or, where that is not achieved in a particular case, by direct election, and make the chairs of constitutional commissions subject to agreement between the prime minister and leader of the opposition or, where that cannot be achieved in a particular case, to appointment by the new-style president.
“The Xarabanking of Maltese society has meant that the unwritten constraints are not worth the paper they could have been written on – a former Labour leader is said to have described these unwritten constraints as ċuċati (it was probably something ruder).”
Parliament has seen its powers vis-à-vis the executive decline since 1947 when the Senate, which reviewed legislation, was abolished. Later, changes began to be made to reduce the incentive or the ability of MPs to hold the government to account. While the Westminster model expects a government to have a majority in parliament, it also foresees an ‘accountability’ role for all MPs that do not form part of the government. However, notwithstanding our relatively large parliament, there had always been a relatively small number of government backbenchers and most of these were hoping for ministerial office.
Today, however, it appears all PL MPs receive additional payments from state sources, either contractual or of an employment nature. Until 1976, MPs involved in contracts with the government, even contracts of service, lost their seats as did MPs that accepted a government job. While the official opposition just doesn’t have the resources to carry out its job effectively in today’s world, government MPs are increasingly being put on the government payroll to toe the line or stop complaining. There are ways of getting our parliament to function better. MPs need to be able to be full-timers if they so choose and they have a right to be paid well – there are plenty of benchmarking exercises that have been carried out in other countries to establish what an MP should earn. However, all the previous constitutional disqualifications need to be re-introduced. It is interesting to note that Luxembourg avoids small government backbenches by requiring all ministers to give up their parliamentary seats to substitutes while they hold ministerial office although ministers remain answerable to parliament and participate in debates.
Successful cabinet government requires that ministers reflect society at large in terms of aspirations and policy positions if not in economic and social terms. This was certainly not the case when divorce and other family matters came to the fore after 2008 and this was a major weakness that contributed to the major PN electoral losses of 2013 and 2017. One obvious change that is now necessary is the introduction of obligatory gender quotas in party lists for parliamentary and local council elections as well as cabinet and for the Gonzi requirement of a minimum female share of government board memberships to be re-introduced. A second change that will make an important difference to the exercise of power within political parties will be that of term limits for holders of ministerial office, not including time spent as prime minister, of 10 years. A third change that is overdue is the extension of state financing to ensure professional organisational and campaign structures for political parties and governments in waiting, for example on the German model, together with further restrictions on any private financing of political parties that could impinge or appear to impinge on parties’ independence.
“Politics is a funny business. One is on top of the world one day and in the wilderness the next so it is everybody’s interest to fix what is now clearly a broken system.”
Judge Giovanni Bonello has recently published a book on our courts and the protection of citizens rights. Entitled Misunderstanding the Constitution: How the Maltese Judiciary Undermines Human Rights (BDL, Malta, 2018), this is an important publication that we all need to read. Judge Bonello has also had his say about recent statements that future judges will not be appointed by the government of the day in a context where 16 of the last 17 judicial appointments were ‘politically intertwined’ which is likely to impact on the balance of the courts for many years to come.
Judges and magistrates have difficult jobs and doing this job properly requires them and their families to make sacrifices. It is not a normal career, more like a vocation and I never understood why it took so long to ensure decent pensions for individuals who were being approached for appointment to the bench at the height of their careers. Possibly ministers are too well cushioned by their generous pensions to understand what life is like for the rest of the middle class. The standard of living of former judges should never have had to depend on government hand-outs. As for a new appointment method, review by a judicial appointments commission is certainly crucial but the process should be strengthened by a two-thirds vote in parliament on each appointee to avoid the risk of political patronage being replaced by another form of patronage.
The most successful appointments of recent years from an institutional point of view have been those to the post of parliamentary ombudsman (since 1995) and to that of auditor general (since 1997). These parliamentary officers, now joined by the commissioner for standards in public life, are appointed by a two-thirds vote in the House of Representatives. They should certainly be joined by the holder of the post or posts responsible for litigating on behalf of the government in terms of criminal prosecutions and civil representation. However, the role of chief legal adviser to the government which has become politicised should probably be subsumed into the ministry of justice and be held by the minister personally. This would not ensure independent legal advice for the government but it would allow political responsibility for the advice to be borne by politicians.
Which brings us back to my starting point of agreeing with Dr Muscat’s proposal that term limits should be introduced for prime ministers.
Term limits can certainly work within our parliamentary system, especially if the limit is based on a time period rather than a number of legislatures. A term limit of 10 years, not including time spent as a minister, would allow a prime minister and his or her government to have a medium term focus without disrupting the normal parliamentary cycle. Politics is a funny business. One is on top of the world one day and in the wilderness the next so it is everybody’s interest to fix what is now clearly a broken system. Abraham Lincoln said “Nearly all men can stand adversity, but if you want to test a man’s character, give him power”.
Those who feel invincible should recall that in the past 98 years, the Maltese electorate has only given a political party three consecutive electoral majorities once – in 2008 – while no prime minister has won three consecutive electoral majorities (although Dominic Mintoff infamously turned a PN electoral majority into a PL parliamentary majority in 1981). Interestingly also, the electorate has only given governments large parliamentary majorities five times – in 1932, 1947, 1955, 2013 and 2017 – and all but one of these governments was led by the PL.
However, notwithstanding this, since the Second World War, there have been PN prime ministers for 38 years and PL prime ministers for 30 years (the latter total including the 1981-87 period where the PN had won a majority of the electorate).