Malta's Constitution Needs To Change

And this is how we need to change it

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The events of the past week, culminating in one of the largest non-partisan demonstrations Malta has ever seen, have made it clear that change needs to come to Malta, and it needs to come now. 

With Prime Minister Joseph Muscat himself saying that he hopes constitutional change will be coming in the next "few months", it seems that the glaring weak points of the Maltese constitution are becoming untenable. 

But a change to the very document that our nation is built on is not something to be done with haste or taken lightly. However, it is something that needs to be done - and here is why.

There is no real separation of powers in Malta

Let's get straight to the crux of the matter. Anyone who has taken an interest in their country's systems - or taken Systems of Knowledge in 6th Form - knows that any democratically representative government is split into three clear branches: Executive, Legislative, and Judicial. 

At first glance, Malta's powers do seem to be split effectively: Executive power is in the hands of the Prime Minister/Government; Legislative power is in the Parliament/House of Representatives, and Judicial power is in the hands of the Chief Justice/Judiciary of Malta. 

This is in accordance to the constitution that Malta adopted in 1964 upon Independence from Great Britain - and herein is where the country's problems began. 

This constitution was far from perfect - it has been amended 24 times in just 53 years. In comparison, the USA's constitution has been amended 33 times - in 228 years.

The 1964 constitution made Malta a parliamentary democracy within the Commonwealth. The Queen of England remained sovereign of Malta, but a lot of the power was centralised in the hands of the cabinet under the leadership of a Maltese prime minister.

In 1974 the constitution was revised, Malta became a republic, and executive authority was vested in the President. 

With that revision, the President was given executive authority - however, the President also works on the recommendation of the Prime Minister, and most, if not all, of the real power remained in the Prime Minister's hands. 

In fact, it turns out many facets of the government's inner workings hinge on the recommendations of the Prime Minister.

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The following institutions have become compromised 

Before Malta joined the European Union in 2004, the European Commission suggested that Malta reforms the procedure for the appointment of members of the judiciary, a procedure they believed was "controlled by political bodies."

This, in a nutshell, can be extended to many of Malta's institutions. 

The Police Force - The Police Force is run by the Police Commissioner, and the Police Commissioner is appointed directly by the Prime Minister. This means that the Police Force is really nothing more than an extension of the Prime Minister's power. And considering only the police can initiate criminal investigations and prosecutions, police investigations into the government or without its consent are practically impossible.

This is why so many people are questioning the integrity of the Police Commissioner and losing faith in the Police Force - even if the Police do investigate the Government, the Prime Minister, or indeed a Government minister, they would be investigating parties that exercise executive control over them. Their findings would always be questionable. 

The Constitutional Court - When Donald Trump announced his Muslim travel ban in the USA, the courts in America said that it was unconstitutional, and judges struck his travel ban down.

This is what would be referred to as part of a good system of 'checks and balances' - a set of triggers in a country's democratic system that occurs when something unconstitutional happens, halting the unconstitutional act.

This triggering does not happen in our courts. If a law is found to be unconstitutional in Maltese court, all that happens is that law is disapplied to the case at hand. It does not strike down the law. It merely ignores it until the next court case, when another person would need to go through the process of having it disapplied to him/her again. 

Judges must be given the full power to strike down a law if it is found to be unconstitutional - they should also have the confidence to do so without any political interference or consequences.

The Planning Authority - One of the most politically compromised state organisations is the Planning Authority - as can be seen by some of the atrocious buildings that have been allowed in recent years. While there are representatives from both the PL and PN on the Planning Authority's board, leadership is made up of political appointees. Whether you want to add 3 stories to your house in Balluta, or build a villa in ODZ land, it's just a matter of pulling the right political strings. 

The Competition Authority - Malta loves monopolies, or duopolies, be it regarding band clubs, political clubs, or companies. Anti-trust laws are essential to any free market capitalist society - they are key to ensuring an equal playing field for all Maltese companies, big or small. 

However, the Competition Authority in Malta is not an independent authority but a division within a government ministry - meaning that any action taken against a company needs to be signed off on by a minister, and very few ministers want to publicly punish a Maltese company and possibly lose votes.

The Civil Service - This is a classic, and something that happens in many countries to be fair. When a new administration is elected into government, they have the chance to replace pretty much all of important roles in the civil service. 

Permanent Secretaries - emphasis on the permanent - were replaced as soon as Joseph Muscat's government was elected, meaning that the workers that make up the civil service have no doubts as to who their boss is.

The Constitutional Organs - Any organisation that has most of its members and/or leadership appointed by the government cannot be anything but totally compromised from the get-go. The office of the Attorney General, the Broadcasting Authority, and the Public Service Commission are all functionally dependent on the Government, and as such can not enjoy any independence from political interference. 

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There's an imbalance of power

The main issue in Malta is the centralisation of power. However, our situation is different than say what is happening in countries like Turkey or Russia. 

Strongmen like Putin or Erdogan both changed their constitutions in 2008 and 2017 respectively to consolidate power at the head of the governments, in effect giving themselves more power than the constitution already gave them.

However, in Malta, our constitution was specifically created with a centralisation of power at the top of the government, a leftover from British rule. 

A change in the constitution in Malta would hope to do the opposite - it would change the way top officials and heads of institutions are appointed, indeed, change the whole idea and system of political appointees.

Essentially, instead of the Police Commissioner being appointed solely at the discretion of the Prime Minister, he could be appointed through a more democratic method, say, by obtaining a two-thirds parliamentary majority in a vote among Malta's representatives. 

This system minimises the chance for abuse of power and the placing of governmental puppets into positions of public trust.

It will also minimise any accusations of criminality that inevitably get thrown around when one of these political appointees get into trouble - if they were elected through a two-thirds parliamentary majority mechanism, that person receiving that position is no longer the Prime Minister's sole responsibility and political responsibility falls on the members of Parliament that voted for their appointment.

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Our politicians know all of this

Both major political parties have known this for years, and talked about it when it benefitted them. Former Prime Minister Alfred Sant had pointed it out; and when Joseph Muscat was in the Opposition, there were specific amendments to change the Constitution in Labour's 2013 manifesto.

However, when the Joseph Muscat administration was elected into parliament, they formed a constitutional convention to look into a constitutional reform - and put Franco Debono, a man who had just brought down the PN administration, at it's helm, knowing the PN would never sign off on it. 

And no surprise here, but Franco Debono was also a political appointee in that role.

Simultaneously, the PN enjoyed the benefits of this centralised power for nigh on 25 years. After being kicked out of government, they immediately took a stand against the abuse of power, and have made "anti-corruption" their battle cry. They have since included constitutional change in their manifesto as well. 

The PN didn't want to change the constitution because it benefitted them, until it didnt.

The PL wanted to change it, until they enjoyed the powers themselves.

But with the assassination of Daphne Caruana Galizia last week, a spotlight has been put on how certain institutional leaders are appointed, and a drive for a real change in this system is happening right now. 

Malta must take this opportunity and show the rest of the world that the rule of law is indeed the rule of the land.

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How can power be shifted?

It is essential that anyone that is serving the public enjoys the trust of the people. There will always be opposition to some figures, but a two-thirds majority in parliament is a good place to start. 

This will increase transparency and open the decision making process to further scrutiny, something that the Maltese as a whole need to accept, as uncomfortable as it might be for some politicians at the top.

A change to the constitution reflecting a modern Malta's desire for political accountability, honest public servants, and the appointment of competent, capable men and women who can lead the country through troubled waters would do good to help the Government's national standing and the country's international standing. 

Adding enforceable overarching principles to the constitution, allowing more significant constitutional judgements to be made, would be sensible, as well as giving extra legal strength to the Maltese constitution.

An independent public service commission should be set up to ensure that civil service workers or other public service workers are appointed and promoted due to merit, and not to political allegiance or any other factor.

Institutions and constitutional bodies needs to function independently of the executive - and they even need to have the ability to take the government to court if they feel the need to.

Until the public has faith in public servants, and until Malta's institutional leaders are seen to have Malta's best interest in hand, the authorities can expect more demonstrations, more accusations, and more open defiance. A sensible change in the coming months could save the government years of headache in the future.  

Do you think Malta's constitution needs to be amended to increase transparency? Let us know in the comments below?

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Written By

Johnathan Cilia

Johnathan is interested in the weird, dark, and wonderful contradictions our late-capitalist society forces upon us. He also likes music and food.

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