‘The Prime Minister’s prerogative’ is precisely the problem

Since January 12, people have been asking whether the appointment of a new prime minister would bring about any meaningful change to our current political predicament.

But of course, the question is being asked here in Malta: a perennially divided country, where answers always vary according to the agendas of the people providing them.

Last Wednesday, for instance, Occupy Justice/Repubblika resumed their weekly protests under the rallying cry: ‘Nothing has changed’. And there were perfectly valid reasons to make that assertion, too; for it does indeed seem that – beyond certain superficial indications of ‘change’ here and there – there has been no real effective reform of our institutional lacunae since Robert Abela became Prime Minister three weeks ago.

It is also true that some of Abela’s decisions – such as the abortive nomination of Konrad Mizzi to head an official delegation to the OSCE; or the lucrative consultancy he was (briefly) given with the Malta Tourism Authority – indicate that the new Prime minister intends to continue with at least some aspects of his predecessor’s direction: including the rather nasty habit of ‘rewarding’ backbenchers with plush (and entirely undeserved) public postings… a practice that has meanwhile been condemned by the Public Standards Commissioner.

But to argue so categorically that ‘Nothing has changed’ – nothing at all – also belies the evidence that we can see all around us. One thing that has certainly changed is the size and atmosphere of last Wednesday’s protest itself: which attracted a visibly smaller and more muted attendance than usual.

Clearly, some of the anger and excitement that fuelled previous protests has dissipated in the meantime. And granted, this might just be a perfectly natural consequence of entropy: the immutable law of physics, whereby ‘heat’ – real or metaphorical – always eventually levels out to the same, tepid temperature.

But part of it might also be a recognition that Abela has, so far, signalled at least an intention to undertake certain reforms: including his promise to implement all the Venice Commission recommendations (despite earlier indications that he would do the opposite), and his proposal for a new system to appoint police commissioners.

OK, the proposal itself might not be exactly what the Venice Commission had in mind; but then again… that may well be because the system proposed by this Commission would most likely have proven unworkable anyway.

We already have the experience of at least two failed attempts to impeach sitting judges… so we know first-hand that the ‘two-thirds majority proviso’ simply wouldn’t function in practice.

Besides, the two-thirds approval measure does not take into account the (now uncomfortably plausible) prospect that one party, alone, might be perfectly capable of occupying two-thirds of Malta’s House of Representatives.

Joseph Muscat himself came close in 2017; and would have come a lot closer had the Constitutional Court not trimmed his majority down by three seats.

By implication, then, the Venice Commission’s proposed model could actually produce the opposite of the effect intended: for any future Prime Minister who controls two-thirds of Parliament would, de facto, be a plenipotentiary dictator.

Nonetheless, Robert Abela’s proposed model is not exactly perfect either. As far as I can see, it still retains the Prime Minister’s prerogative to make the final decision: which is precisely what was flawed in the previous system, and what needs to change.

But it does introduce a vetting procedure, and the concept of Parliamentary scrutiny of candidates. And unlike the other proposal, it does at least stand a chance of actually resulting in the appointment of a police commissioner from time to time...

To me, however, the question ‘what has changed’ is by no means limited only to the ‘good governance’ and ‘rule of law’ issues raised by the Venice Commission, or complained about by Occupy Justice or the PN. In taking up the mantle of Prime Minister, Robert Abela also assumed responsible for all the government’s policy directions, in all areas: including, among countless others, the environment.

What has changed on that score, I wonder? Well, one small change was announced this week: that the (somewhat contentious) issue of hunting and trapping has been moved out of the Environment Ministry – where it so clearly and obviously belongs – and entrusted to the Ministry for Gozo instead… a portfolio which has absolutely nothing to do with hunting and trapping at all.

This manoeuvre is already preposterous in itself (I mean: why not shift the Inland Revenue Department to the Ministry for Sports, while they’re at it?); but it becomes dangerously absurd when you also consider that the Gozo Minister, Clint Camilleri, is himself a hunter; and therefore is technically responsible for the regulation of his own chosen hobby.

Now: in the interest of fairness, I’m not going to simply write Clint Camilleri off for this reason alone.

I don’t know him personally, so I can’t exclude that he might indeed possess the necessary detachment and impartiality to regulate this sector (although I have to admit that his past record, as well as his public statements since taking over the portfolio, do not exactly fill me with hope.)

But regardless of all that: it is still a decision that clearly flies in the face of all known accepted practice. Take the case of a judge who is also a hunter, for instance. He would be expected to recuse himself from any case involving hunting… and failure to do so might even result in a mistrial: not necessarily because the judge in question would have been demonstrably biased… but because his own involvement in the issue might raise legitimate public suspicions concerning objectivity.

Likewise, an MP who is also a professional tuna-rancher, cannot expect to land himself the portfolio responsible for regulating the aquaculture sector… for reasons which are too obvious to even bother mentioning.

The same principle applies just as much to hunting and trapping, or indeed any other activity… regardless of the intentions or integrity of the responsible minister concerned.

Meanwhile there are other complications, some of which have nothing to do with Clint Camilleri or his hobbies.

For while the Wild Birds Regulatory Unit has now been transplanted to the Gozo Ministry… the legislation that governs it still makes reference to the Environment Minister as the ultimate political authority.

This also means that any decision taken by the Gozo Ministry concerning hunting and trapping can (and, one assumes, will) be challenged as ‘illegal’ in court. And while I am certainly no expert in legal matters… as far as I can see, the Gozo Ministry wouldn’t have a leg to stand on: for the law, as it stands, requires those changes to be made by a different minister.

Effectively, then, this decision is not only flawed and abnormal by its very nature; like the two-thirds majority proposal before it, it is also destined to fail by virtue of being unworkable in practice.

But the part that intrigues me most was the Gozo Minister’s reaction to the decision. Sidestepping all the above objections – which are incidentally now the subject of a judicial protest filed by Birdlife Malta – he simply pointed out that the decision to assign ministerial portfolios is, was and remains ‘the Prime Minister’s prerogative’.

Erm… what is that, exactly, if not another way of saying that Prime Minister Robert Abela took the decision simply because the law empowers him to… and nobody can stop him?

Much as I hate to bring it up precisely now: that is exactly the attitude that lies at the heart of the political crisis that has engulfed our country over the past few months.

Boil down the Venice Commission’s criticism to its bare essentials, and the resulting argument is that Malta’s system of checks and balances places far too much power directly in the hands of the Prime Minister himself.   

It is, in fact, ‘the Prime Minister’s prerogative’ that is under attack here: the Commission’s entire argument is that the Prime Minister should NOT have so much prerogative in the first place (before we even get to the question of HOW he goes on to use – or abuse – that prerogative).

And the Gozo Ministry decision is a very good example of exactly why this is so wrong, too.

Because it results in flawed decisions taken for all the wrong reasons; and with the possible consequence of weakening all the enforcement and disciplinary aspects of regulation… which, in turn, is precisely the same pattern of governance that had precipitated the political crisis to begin with.

So we may, at least, have part of an answer to that original question.

Can a new prime minister bring about any truly meaningful change? Oh yes, indeed he can… but not by replicating all the mistakes made by his predecessor.