The Constitutional crux of the matter | Martin Scicluna

‘Constitutional reform’ is one of those subjects that crop up from time to time, cause a bit of a dust-storm in the media, and then quietly fizzle out into nothing. 

Sporadic efforts (mostly futile) have been made to address certain specific lacunae – the electoral process being the most cogent example – but despite electoral promises (by both Labour and PN) to hold a convention on Constitutional reform, the issue is now arguably at the very bottom of the agenda.

What happened in the meantime? And why is it even necessary to revisit this legal document in the first place?

Recent developments seem to point towards a few answers. Since the last election, numerous scandals and controversies have engulfed the present government – nearly all of which arose directly from the lack of proper institutional checks and balances within the country’s operating system.

Questions are now asked about the competence of key institutional roles such as the Police Commissioner (who has been accused of unwillingness to investigate cabinet ministers); and more recently, the party-financing scandal revealed the impotence of existing regulations to prevent abuse.

It is as though the Constitutional system bequeathed to us by the brokers of Malta’s Independence is now springing leaks from all angles. And few have been pointing this out more often and with greater urgency than Martin Scicluna. 

As director-general of the Today Policy institute (a post he only recently vacated) he oversaw a comprehensive report on the subject that was more or less totally ignored. Even earlier, his role as advisor to government on national security exposed him to the inner functions of several constitutionally-appointed bodies (not least the AFM). 

As we meet for this interview, he almost instantly refers me to a pile of reports on the table. Constitutional reform is but one of many: others deal with the environment (Scicluna is incidentally also a former chair of Din l-Art Helwa), social security, pensions, immigration, defence, health, etc.

Some, he hastens to add, were well-received by government, and many of the proposals were taken on board. Others were less fortunate; and in the main, these either proposed curtailing government’s power through checks and balances... or tackled ‘politically sensitive’ (i.e., ‘vote-losing’) issues..

“The report on the future of Malta’s social security system was one they absolutely didn’t want to touch,” Scicluna recalls.“There was one other report on Broadcasting which, again, was presented to the minister of justice... but despite lots of promises, it wasn’t followed up. I would like to think that, to a greater or lesser extent, all the others were picked up in one shape of form...”

On other notable exception was the 2014 report entitled: ‘A Review of the Constitution at 50: Rectification or Redesign?’  

“The report of constitutional reform was, in my view, the most important one we produced. If you look at any of the problems Malta confronts at the moment, the way our whole government set-up works, it all comes down to this. One of the major commitments in the [PL] manifesto was that there would be a Constitutional convention, which we hoped would consider some of the aspects highlighted in our report. None of that happened. This, to my mind, is a major omission from this government’s electoral promises; and it is one which quite frankly haunts us. Because until we’ve sorted out the Constitutional issues in way we operate, we are not going to move forward...”

But what is so wrong with the Constitution, anyway? The report itself describes it as having “proved to be an adaptable, well-performing and legitimate” document...

“The problem is not with the structure as it is today. It is the way it is operated. The truth of the matter is that our Constitution  - which is essentially based on the Westminster model – is dependent on the government of the day obeying its spirit. The letter can be bent any way a powerful government wishes it to be bent. And this government, with its huge majority, has used and abused the institutions in all sorts of ways: bringing us to the point that there are question marks about government’s governance and its influence on Malta’s way of life.  To me, the major target of any solution to our difficulties must start with that...”

What are the Constitutional issues in most urgent need of attention? 

“First and foremost the systemic checks and balances, because whichever way you look at it, the three arms of the Constitution – the executive, legislative and judiciary – all owe their power and control to one man: and that’s the prime minister. So if you get an authoritarian prime minister, as we had in the 1980s – or as we have now: a strong prime minister, who firmly believes in the way he wants to go – the checks and balances simply aren’t in place. The institutions aren’t strong enough, because they all owe their existence directly to the prime minister. That is really the area we need to look at if we are to change the way we operate to a more efficient and democratic system.”

Scicluna outlines various entities – including the Broadcasting Authority, the Electoral Commission, the Planning Authority, etc. – where all the key positions are at the discretion of the government of the day. 

“But I would go back to basics, and start with the top of the structure: the President. The President is very much elected by the will of the prime minister. If the prime minister has someone he wants to kick upstairs, or wants to do someone a favour, he can make him President. We proposed, in this report, that there should be an electoral college made up of the ‘great and the good’: I would define that as being composed of former prime ministers, former speakers, former chief justices – that sort of calibre of person – who are no longer involved in the knockabout of daily politics, but who have done their bit for Malta and have a commitment to the nation’s well-being. They would form an electoral college to put forward to the PM three or four names: not necessarily politicians... personally, I don’t believe that only politicians can make good presidents... there are good people around. One doesn’t have to mention names. You start with an electoral college that makes proposals: then the process reverts to the prime minister, who selects a candidate and seeks two-thirds majority approval in the House...”

The present system, Scicluna argues, damages the office of the President itself... which, by definition, should be above party politics.

“In fairness, I think – from my direct experience and from what I’ve read – none of our presidents has so far failed us. But they have simply been heads of state as a symbol of government. I would go further: in our report we also proposed a Council of State, made up of the same kind of people I mentioned earlier, who would advise the President on a whole range of things that would be devolved to the Presidents’ responsibility. The thing we are weakest at is choosing the right heads of our institutions: the Ombudsman, the Police Commissioner, the Electoral Commissioner... all these are vitally important for the governance of Malta. All of them are at present hand-picked by the prime minister. If you had a Council of State choosing candidates, which are then approved by the President – not the prime minister – I suspect that the man in the street would be more confident of the calibre of people being put forward...” 

A further tier of checks and balances could take the form of a parliamentary interview system along the lines of the European Parliamentary ‘grilling sessions’.

“All of that would bring about a sea-change in all the areas of weakness we’ve got at the moment. It would introduce checks and balance, and hopefully also a non-politicisation of these crucially important jobs and institutions in Malta. It would also give the President greater status than just a rubber-stamp for the government...”

At the same time, what we’re talking about is not a minor tinkering of the system: the proposed change would radically alter the power structure of the country. The role of the President would radically change, too. It could be argued that, under those circumstances, it should be the electorate to choose their President. Does Scicluna agree?

“No. We did consider it, but I think it would be a step too far. As for the role of the President, there would be changes, yes. But Cabinet’s authority would not be undermined. The executive would still be able to do its job. And I think one of the strengths of our system is that the first-past-the-post method gives us a two-party system that - for better or for worse – allows governments to function without going through all the coalition-building process that goes on in other countries. In Malta, I believe that would be culturally alien to the way we operate...”

Yet the electoral system is also one of the things that many (including smaller parties) argue needs to be changed. The current system might have its merits... but it also condemns us to a choice of only two parties which (let’s face it) resemble each other on most issues...

“I think that’s true; but the advantages outweigh the disadvantages. The advantages are that, as long as you introduce all the necessary  checks and balances – you end up with strong governments with clear policy lines, without all the ‘dealing’ that goes on between parties. By ‘culturally alien’ I mean that we, as a people, might find it hard to make all the concessions that are necessary for that system to work. That is why I am so in favour of the two-party system, warts and all...”

So would his proposed Constitutional reform retain the electoral system as is?

“No. Our present electoral system is unfair, there can be no doubt about it. Smaller important parties like Alternattiva Demokratika are never really given a look-in. There is a very good argument that if we were working on a single district instead of 13 - as we do with European elections – the proportion of votes earned by a party like AD would translate into parliamentary representation: depending, of course, on how we set the national minimum threshold. That also forms part of the two-party system. What I would be against is a system that leaves us with four or five parties in parliament. It would take us back to the period after the war until the early 1960s: with short-term governments, all the infighting between parties, Mintoff against Boffa, etc. I don’t think we’re mature enough for that system to work...”

The period he mentions dates back to pre-Independence Malta, over 70 years ago. If we were not mature enough then, and we are still not mature enough now... is Scicluna suggesting we will never evolve to that point at all?

“I don’t think it will ever change, because the truth of the matter is that the government of the day has so much to dish out to all those voters who expect something in return. It’s how we are: we’re too small, we all know each other. But that is precisely why the checks and balances are so vitally important. If we knew that the decision-making process is no longer in the hands of one man, but subject to additional tiers of scrutiny by advisory bodies... hopefully our sense of dependence on government would lessen.”

Until that time, the prime minister will continue hand-picking all the top public positions in the country. That includes the Police Commissioner, despite the fact that the police has its own internal hierarchy of ranks and promotions. Shouldn’t that system be extended all the way to the top of the chain of command? Shouldn’t the police appoint its own Commissioner independently?

“When I was advisor to the prime minister on the AFM, I had to willy-nilly be conscious of what the police were doing. The police force is one of Malta’s weakest institutions at the moment, and part of the problem has been the inability to have proper succession for a line of future Commissioners. The AFM, until this administration, was really very good at that. There was always a clear line of succession. Even back in 1996, you knew who the next two commanders were going to be. The police have never had that. It’s an endemic problem, but a system which has the imprimatur of a Council of State would make all the difference. At the moment, however, it is one of the weakest areas of our institutional structure...”

As with the Constitution, ‘police reform’ is another of those issues that occasionally crop up but goes nowhere. 

“When the Fenech Adami administration came in in 1987, it really failed to confront the issue. It just proved too difficult. There was no real root and branch reform. Attempts were made: I remember when Alfred Sant was Prime Minister, he commissioned a very good report on the state of the police. But it never saw the light of day, and in any case, Sant wasn’t in power for very long afterwards...”

All this seems to point towards an institutional stalemate. Any such reform – including all the others mentioned earlier – depends on the goodwill of the prime minister of the day. But the prime minister would automatically be diminishing his own clout and sphere of influence by introducing checks and balances. From this perspective, it seems almost impossible for any real change to come about.

So is there any way (apart, naturally, from armed revolution) of forcing these changes through within the current system... even against the government’s wishes?

“No, there isn’t. But again, this is why it was so important to hold the convention on Constitutional reform, which was promised in both parties’ manifestos. Yet it died a natural death, and we all know why.  The Prime Minister chose Franco Debono to chair the convention; the Nationalists, understandably, would not deal with Debono. That, in our judgement, was a mistake, because it was always going to be a red rag to a bull. This could have been avoided had the Prime Minister chosen a less controversial figure to chair the convention – we had proposed former president George Abela – while Debono could have been made the secretary-general, the factotum responsible for the day-to-day running...”

At the risk of asking a mischievous question: could it have been done on purpose? Was it Joseph Muscat’s way of torpedoing a convention he didn’t really want?

“No, I think the Prime Minister genuinely did want to hold the convention: but it reached a deadlock, and in the end, as tends to happen in such cases, it just became too difficult to do. All the same, I wouldn’t be surprised if, in the next 10 months, we do get a convention: just to tick one of the boxes, and say it’s been done. But then they wouldn’t have to act on the results, would they? It’s just tragic, really. All the things we are complaining about: the maladministration, the poor governance, positions of trust, all the rest of it... it all boils down to our inability to reform the Constitution.”