Complex reforms call for in-depth discussion

A month before the 2013 general election, then Opposition leader Joseph Muscat, said that he intended to give birth to a ‘Second Republic’, following a constitutional convention.

Implicit in that intention is an overhaul of the country’s legislative and institutional set-up. Today, there appears to be widespread consensus that such an overhaul is needed. Yet beyond recent changes in appointment of the judiciary, little progress has been achieved since March 2013. Even the Constitutional convention, which began four years ago, has been derailed and apparently forgotten.

This is a pity, because the reforms in question do merit serious (and, if necessary, lengthy) discussions involving all sectors of society. From this perspective, it is not surprising that elements within civil society would get together to demand that Malta re-starts the process it had started but never completed. 

The ‘Occupy Justice’ movement has raised some very valid points regarding, precisely, where the changes are most needed. Perhaps inevitably, the initiative has already been polarised through the usual binary prism of Malta’s bipartisan culture. This is regrettable, as it can only cloud the otherwise valid arguments being raised.

However, while the initiative itself is laudable, some of the stated aims may need fine-tuning. 

It is understandable that demands are made for the resignations of the Police Commissioner and Attorney General... if nothing else, because the incumbents do not enjoy the trust and confidence of significant portions of the population. But the demands should have been directed (as indeed they were, in the case of the Police Commissioner) to the holders of those two offices in question. 

First of all, a government cannot just remove the Attorney General without a basis of law, since he enjoys security of tenure constitutionally, and can only be removed by two-thirds of the House.

Even the two-thirds approval proposal is questionable. Under the proposal in the PN’s good governance pledge, the AG would be appointed by a two-thirds majority... but if that is not achieved after two rounds of voting, the candidate would be finally appointed by a simple majority anyway.

One might justifiably ask, therefore, whether this parliamentary rigmarole is just an attempt to put a headstrong government in a bad light (by steamrolling ahead for a simple majority vote), or whether it would expose an equally headstrong opposition intent on rumbling the government’s game.    

Clearly, there are no winners here. The two-thirds mechanism has rarely served its intended purpose in the past: when such majorities were called upon – for instance, to impeach sitting judges – they did not materialise in practice. Given the sensitivity of the role of AG to government (even though, in this case, it must be said that the current AG was appointed by the PN administration), it is to be expected that government would want to appoint an AG of its own confidence... and that, for the same reason, the opposition would object. This would only take us round in circles. 

Moreover, one must tread with caution when proposing administrative changes. It is said that ‘the road to hell is paved with good intentions’; the adage is particularly relevant to the current situation.  The ultimate objective should surely be to strengthen the autonomy of existing institutions that should, ideally, be holding the government to account. This objective cannot be achieved by placing the entire decision-making process in the hands of the political class. 

In principle, concept of final approval by parliament should be retained, as it is technically parliament that is empowered to represent the people. But this too, has to be subject to checks and balances. It remains debatable whether parliament can always be trusted to do the right thing, for the right reason. Let us not forget that it is ultimately occupied by political parties, which have their own political agendas.

What Malta really needs is a clear and unequivocal separation powers. In the AG’s case, the aim should be to distinguish between the incompatible roles of government’s legal advisor, and chief public prosecutor.

Ideally, the reform should allow the AG to act as the government’s advocate; and then have an independent prosecution service that can carry out its job without any interference from the State. This would work akin to a magistrature that is also tasked with magisterial inquiries. Prosecutors would be able to work with magistrates and police to ensure a parallel and co-operational investigative service, free from any political influence: much like the judiciary.

On the subject of the judiciary: the reforms already introduced were well-intentioned, and they represent a more judicious application of the parliamentary approval principle. 

But we should also be concentrating on improving the existing structures as much as possible. Moving beyond the issue of who does the actual selecting... we need to also look at the qualifications and eligibility of the candidates themselves.

Ideally, magistrates should also be picked from a pool of skills that includes investigative and police experience; not simply lawyers with the ability to understand the law. In this way, we could ensure better synergy between investigators and legal minds.

Clearly, the issues at stake are complex, and cannot be subject only to the usual tribal level of political discussion.