Who will bell the Constitutional cat?

The Council of Europe’s Venice Commission report has highlighted several legal and institutional shortcomings within Malta’s Constitutional system. From the direct appointment of members of the judiciary by the President, to the hiving off of the Attorney General’s prosecutorial powers to an independent prosecutor’s office; from calls for legal limitations on the number of persons of trust, to higher wages for MPs; the proposals strike at the heart of democracy and good governance.

There are some extremely valid observations, especially insofar as the need to strengthen the system of checks and balances is concerned. But while the two major political parties now appear to be falling over themselves to embrace the proposals for ‘change’, in reality what the Venice Commission has proposed is nothing new.

Many of its proposals have been put forward by different people over the years. Some could be found in the electoral manifestos of Alternattiva Demokratika as far back as the early 1990s. More recently, many individuals – including rebel MPs like Franco Debono – put forward similar suggestions in parliament. It is interesting to note that among those who now champion the Venice report, are some who rubbished similar proposals when made by others in the recent past.

In 2013, the government-appointed Bonello Commission for Judicial Reform also put forward a series of valid proposals, some of which have not been implemented and have now found their way into the Venice Commission report. Elsewhere, some of the issues identified in the report have been debated editorially in the press for years. This newspaper has on countless occasions been critical of systems that have never been updated.

Only the myopic would believe that similar proposals were only made in the last four years, by an Opposition that has discovered a newfound yearning to champion good governance. This is not just about the deficiencies of a Muscat government, but the failures of a system that has been inherited through the years. It is also about the ingenuity of politicians who ‘abuse’ of the system’s loopholes once in government.

For the same reason, only the naïve would accept without question the Government’s argument that these are all ‘legacy issues’, in which it had no part whatsoever. Government evidently needs reminding that it was elected in 2013 with a mandate to introduce more transparency, accountability and meritocracy. This discussion is as much about what was not done to improve the situation, as it is about what was done to damage it.

Nonetheless, it seems that while we have all long recognised and understood the issues highlighted in the Venice report, we have collectively been unable or unwilling to do anything about them for decades.

The stark truth is that many of the proposals by the Council of Europe body require constitutional change; and when it comes to changing the Constitution, the buck stops with the two major parties in Parliament.

This is particularly relevant to the issue in discussion, because the current situation has evolved precisely because the two parties have a common interest in maximising the government’s share of power vis-à-vis other arms of the state. Already they have abused of that power to extend their sphere of influence far beyond the confines of executive government… controlling other, supposedly autonomous institutions by proxy appointees, etc.

Both have been equally guilty of this, even as both have traditionally blamed each other for the situation when in Opposition. From this perspective, it appears unlikely that the Venice recommendations may suffice to significantly alter the status quo.

There are, however, indications that we may be poised for radical change. Muscat has already suggested that the proposals will be taken on board; and what also makes the situation slightly different today is that both parties are now committed to Constitutional reform talks – which at least provides the bedrock for a serious national discussion.

The question remains, however: will the two parties walk their own talk, and work together and with others to deliver a revamped Constitution that strengthens the system of checks and balances? Or will discussion fizzle into yet another stalemate, with no genuine reform in sight?

And will only the two parties be involved in this debate? Past experience has shown that both are very reluctant to let go of their own grip on power. This discussion will however present an opportunity for them to meet halfway on a number of basic issues. At the very minimum, will they give up their dominance on Constitutional bodies like the Electoral Commission and the Broadcasting Authority, and allow the President to appoint members on these entities?

Will they agree on laws that control the number of persons of trust and what jobs they should perform? Or are these appointments only to be despised by the parties when they are in Opposition, only to embrace them once returned to government?

Is there a genuine, cross-party will to reform the Police Force, and grant it the resources and autonomy it needs to hold even the most powerful – i.e., themselves – to account? Who will be bold enough to bell the cat and bring about lasting change?

Only time will tell whether good faith will prevail.