Analysis | The bumpy road to Constitutional reform

Neutrality | Electoral Reform | Technocratic government | Religion

Neutrality

Since 1987, the Constitution has defined Malta as a 'neutral' and 'non-aligned' State.

In theory, this marked the fulfilment of an ambition long held by former PM Dom Mintoff - much of whose lengthy political career had been moulded against the backdrop of the Cold War. For much the same reason, the wording of the clause itself unfolds in the anachronistic context of 'two superpowers' (not specified by name, though clearly a reference to the United States/NATO and Soviet Union/Warsaw Pact tandems, only one of which still actually exists today).

But while the concept of Malta as a neutral, non-aligned nation can be traced to a 1960 article penned by Mintoff in The New Statesman, in practice the clause found itself unceremoniously bundled into the Constitution only as part of a wider package of largely unrelated reforms: the most pivotal of which introduced a Constitutional mechanism to guarantee that the distribution of parliamentary seats would always be a reflection of the first-count election result, thereby avoiding a potentially explosive repetition of the 1981 election result.

Neutrality was therefore from the outset viewed more as a bargaining chip to achieve this purely domestic political goal, than as an ideal in its own right. Certainly there was never any public consultation on the matter, still less any nationwide consensus. Agreement was in fact brokered by means of 'secret' negotiations between Mintoff (by then no longer PM) and the late Guido de Marco in 1986. Years later, de Marco himself would reflect that "the Socialist government of the day... made [neutrality] a condition for it to accept the Constitutional amendment that guaranteed a majority in government was confirmed not by parliamentary seats but popular votes"... suggesting that the Opposition had in fact been arm-twisted into grudgingly accepting the clause despite serious reservations.

Given the contentious nature of its birth-pangs, it is hardly surprising that the meaning and relevance of the precise clause has been questioned ever since. In a 2009 press article, former US ambassador Douglas Kmiec unwittingly voiced the doubts of many when he candidly asked: 'Neutral to what? Is it neutrality to peace? Is it neutrality to assisting those striving for peace?'

Kmiec's curiosity was sparked by his country's invitation for Malta to participate, through non-military means, in the ongoing Afghanistan campaign. Predictably enough, it stirred a hornet's nest among local political and media circles; but while many complained about the ethical implications of a foreign diplomat 'interfering' in local politics, few would deny that the question itself was and still is valid - as can be attested by the frequency with which similar doubts and uncertainties have been raised over the years.

On the domestic front, pressure groups such as Moviment Graffitti have spent the past 20 years sporadically campaigning against the regular use of our harbours by foreign military vessels: including US and British navy vessels returning from active participation in the Iraq war. Elsewhere, Malta's participation in NATO's Partnership for Peace programme has consistently been challenged on Constitutional grounds: by the Campaign for National Independence (chaired by former PM Karmenu Mifsud Bonnici, under whose tenure neutrality was achieved); by Alfred Sant's Labour government, which temporarily suspended participation in 1996; and by various (mostly left-wing) press commentators, who view it as incompatible with the principle of non-alignment.

Interestingly enough, PfP's defenders have always pointed towards purely practical considerations in their counter-arguments: withdrawal from the programme would result in Malta's absence from crucial European decision-making fora, starving the country of vital intelligence. Few, if any, have bothered defending PfP purely on the basis of its military or strategic importance.

More recently still, Malta's involvement in the Libyan civil war last year - albeit limited for the most part to logistics and humanitarian aid - once again illustrated the precarious nature of our Constitutional neutrality, which ostensibly precludes the deployment on Maltese soil of large numbers of military personnel, as well as the use of Malta's facilities for military purposes... though all these objections are arguably obviated by the existence of a UN security council mandate for the intervention.

While disagreement persists on both the desirability and precise meaning of neutrality, there is at least consensus that the wording of the clause needs to be 'updated' to reflect present realities, and perhaps more importantly to incorporate any possible future developments that may affect the global balance of power.

There is also cognisance that direct military threat is not the only concern impinging on Malta's sovereignty; events of the past decade have shifted the focus away from 'traditional' military operations, and towards the threat of large-scale international terrorism and civil unrest. No such concerns are specified in the Constitution, prompting international relations expert Stephen Calleya to suggest that "issues of high security, humanitarian assistance, peace-keeping missions and election observers, should all be taken into consideration and put into context of the modern days we are all living in".

This is likely to form the starting point of any future attempt to re-negotiate this delicate Constitutional mine-field.

Electoral reform

If neutrality poses a dilemma for Constitutional reformists, electoral reform has so far proved to be the most insurmountable stumbling block of all.

There are several bones of contention, including such issues as the financing of political campaigns, laws governing broadcasting at election time, and the procedural responsibilities of the Electoral Commission, among others. But the major issues which have to date prevented consensus can be boiled down to two: strict proportionality between seats in parliament and valid votes cast (which at present can only be guaranteed by the aforementioned mechanism if one party achieves more than 50% of the total first-count vote, or if only two parties are elected); and the district-based quota system, which de facto limits representation only to candidates who secure the equivalent of 16.6% of the vote in any one district.

All constitutional provisos to this effect are entrenched, and require a two-thirds majority to be amended.

At a glance, these two pitfalls can be seen to impinge upon one another. Just like the anachronisms written into the neutrality clause, the 1987 electoral amendments were largely based on the assumption that the current status quo would be retained ad infinitum. Consequently, the mechanism was designed with only a two-party contest scenario in mind, whereby the '50% plus one' target is almost impossible not to achieve.

With the advent of a third (and briefly a fourth) political party contesting national elections, it rather belatedly dawned on both government and opposition that a repeat of 1981 would remain a distinct possibility (illustrated, incidentally, by the last election) should a third party gain one or more seats in parliament. Not even a second Constitutional amendment, introduced shortly before the 2008 election, managed to address this outstanding issue: so much so that Prime Minister Gonzi warned constituents on the tenth district that a vote for AD's candidate could easily 'translate into another Constitutional crisis'.

Effectively, the quandary has resulted in a situation where, without actually addressing the anomaly itself, succeeding legal amendments have concentrated primarily on making it as hard as possible for a third party candidate to get elected (thereby 'upsetting the apple-cart', as it were). With hindsight, even the unnaturally high 16.6% district quota seems tailor-made precisely to prevent that situation: a perception compounded by other electoral laws, such as the Broadcasting Act which apportions political media coverage according to representation in Parliament (thus ensuring that parties already in parliament are given the lion's share of exposure).

As any change to the status quo - especially insofar as the quota is concerned - would directly jeopardise the double stranglehold over parliament currently enjoyed the two main parties, it is not difficult to see why consensus has so far proven so elusive. Nonetheless, significant efforts were indeed made to find common ground: not least, a 1994 report drafted by Lawrence Gonzi himself (then still speaker of the House), which had overcome objections on all but two key issues: 1) the precise percentage of a national threshold to replace the existing district quota, and; 2) the transference of votes of candidates who fail to achieve that quota.

These issues would be revisited from time to time - such as when Parliament debated new proposals in 2005 - but in all such cases the major obstacle consistently proved to be the threshold itself, which by 2007 had been 'bumped up' (during yet another abortive round of talks on electoral reform) from the 5% proposed in the Gonzi report, to 7% (which was deemed too high by Alternattiva Demokratika).

The success of any renewed effort to overcome this impasse invariably depends on how adamantly the two main parties will defend their own entrenched positions.

Technocratic ministers

The Constitution currently limits a Prime Minister's options only to members of parliament when it comes to filling Cabinet posts: a situation that the present incumbent is known to have privately complained about to former US ambassador Molly Bordonaro, in comments subsequently made public by Wikileaks.

However, it is a rule more commonly observed in the exception. Former Mintoff administrations had elevated prominent trade unionists to the status of unofficial Cabinet members; and Nationalist governments under Eddie Fenech Adami and Lawrence Gonzi would allow the unelected EU perm rep Richard Cachia Caruana to sit in on Cabinet meetings.

This might explain why both Nationalist and Labour exponents have expressed a willingness to at least discuss the issue. Their concern is also understandable in the context of Malta's unique parliamentary composition (also governed by the Constitution) whereby the number of Cabinet ministers is disproportionate to the total number of elected government representatives from whom they can be appointed.

Effectively, any governing party has to appoint an average of 14 Cabinet ministers from only around 34 available MPs. As former AZAD chairman Ranier Fsadni recently observed, the upshot is that government must draw on a staggering 40% of its parliamentary contingent: "I'm not aware of any other EU government that needs to draw on such a high proportion of its MPs, or indeed of any European political party that is judged, even by its own electors, to have 40% of its MPs worthy of ministerial appointment."

The flipside to the argument - applicable to Malta as anywhere else - concerns the democratic credentials of unelected candidates, and whether such ministers can ever be held accountable to an electorate which never actually voted for them. The concern is perhaps best exemplified by the recent political developments in Italy and Greece, where democratically elected governments had to make way for technocratic governments appointed directly by the European Commission. But this is an extreme scenario produced directly by extreme circumstances, and as such the analogy does not necessarily hold.

Either way, it remains to be seen how the various parties will propose amending the Constitution, if at all, to extend the boundaries of Cabinet. Perhaps the likeliest compromise may resemble that proposed by former finance minister Lino Spiteri last September: "It might be worth discussing whether we should introduce a change whereby a limited number of ministers, say up to three, could be appointed from outside the House of Representatives. They would sit in the Cabinet and the Prime Minister would be accountable to the House for their actions."

Religion

Contrary to popular perception this is actually the easiest Constitutional amendment to effect, as only one of the three articles (2.3) is actually entrenched. The rest can be amended by simple majority; but it is highly unlikely that any of the key players will insist on their amendment: in fact the Labour Party has already announced its intention to retain the clause in full, and the entire issue is a non-starter for the PN.

Nonetheless, recent events have exposed serious cracks in the traditional perception of Malta as a 'quintessentially Catholic country'. For one thing, it is debatable how a country can Constitutionally endow a Church with the 'right and duty' to teach right from wrong... and then go on to roundly reject the same Church's teachings on such a seminal issue as the indissolubility of marriage, as the nation did in last year's divorce referendum.

But even before May 28 2011 - when a clear voting directive by the Church was rejected by an equally clear majority at the polls - sporadic murmurs of complaint had long been heard to the effect that Article 2 automatically induces a 'two-tier' citizenship framework, whereby non-Catholic citizens are made to feel 'less Maltese' than their Catholic counterparts.

Admittedly these complaints never quite concretised into massive street protests of the kind recently seen in Hungary - where a similar confessional Constitution has polarised the country, and even elicited criticism from the European Commission - but at the same time there is growing recognition that the archaic view of Maltese society as a homogenous extension of the Vatican State simply no longer applies to the pluralism of present-day reality.  

What is lacking from the mix is the existence of a popular groundswell movement to remove the naked exclusionism inherent in Article 2 (and in particular, 2.1). So far, discussion on this issue has been limited largely to the fringes, and despite recent evidence to the contrary, Catholic identity is arguably still viewed as essential insurance cover by politicians of all hues.