News | Sunday, 05 April 2009

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What future for the Presidency?

It was intended to provide a focal point for national unity, but in practice the office has come to be viewed merely as an extension of the political parties’ stranglehold on the country’s institutions. Should Malta revise the role, executive powers and selection process for the President of the Republic?

Ugo Mifsud Bonnici

Dr Josie Muscat

Ugo Mifsud Bonnici
Perhaps because it is imagined as the summit point of the State structure pyramid, the Presidency is seen by some as the geometric convergence without any substantial content. Which is not really the case. Our Constitution allots the President a mere three articles (48)(49)(50), and most of the functions and duties are not spelt out there but are scattered all over the document or result from convention and custom. The Office is the end result of long years of political evolution elsewhere and of our native Maltese adaptation of the concept of a constitutional republic with representative democracy, following upon a constitutional monarchy.
The office is needed and useful, and has served well our democracy. It has guaranteed stability, acted as catalyst for reconciliation and resolution of constitutional disputes, provided a standard of national unity and identity. Holders of the office have tried to advise when formally given “advice”. As is proper, this avuncular role was never given any publicity, but perhaps precisely because of this has sometimes been very salutary.
The Constitution in Art. 78 declares that the executive authority is vested in the President, and yet the office exercises power on very rare and exceptional occasions, and it is the Cabinet (of which the President does not form part) that has the general direction and control of the Government of Malta (article 79). Through this almost paradoxical device the President can be exempted from the daily criticism of all government action or inaction, and retain a moral authority needed for the very rare occasions when presidential decisions are final and definitive.
The delicate arrangement whereby the President’s Government is responsible to Parliament and to public opinion, whilst the President presides over all with a calm, Olympic assurance, requires some restraint and diplomacy from both the President and the Government. During my tenure of the office both “my Prime Ministers” understood the need of maintaining scrupulously this balance, and so did I. I believe it has been so during other presidential tenures.
Again article 51 states that Parliament is composed of the President and the elected members. The President does not legislate on his own: he has to give his assent to the laws passed by the House of Representative without his participation. However in giving assent, the President can, as I did, see to it that a proper text is presented for his assent: concordance of the English text with the Maltese “original”, concordance of both to what was actually passed after amendments, and concordance with the rules of grammar. More importantly the President can, as I once did, send messages to Parliament, urging legislative initiative on particular matters.
Again the President chairs the Council for the Judicature, but has no judiciary mandate. The President however exercises a role which, without impinging on the independence of judges, does draw attention to their obligations towards justice, the law, and general observance of the rules of conduct and public service.
Some have asked whether we should not have a presidency with more powers. That would entail a change of concept, and a different balance. The use of discretion has to render account: that would make the Presidency definitely more “political” and “controversial”. The Presidents who left the political arena (Buttigieg, Barbara, Tabone, Demarco, Fenech Adami and myself) did their utmost, and largely succeeded to become non-partisan. Such executive or administrative extra powers could have made even Sir Anthony Mamo and our next President, part of the daily political engagement.
Within the constitutional limitations, Presidents can and have performed the service required of them. The Presidency arrives in the hands of George Abela with some lustre.

Dr Ugo Mifsud Bonnici is a former President of the Republic

Dr Josie Muscat
All right-thinking people agree that Malta suffers from certain democratic deficits, not because we are more corrupt than others – although the Mediterranean culture we have inherited does not help – but mainly because our small size makes family and other power networks more difficult to avoid.
It is precisely for this reason that I have argued, since the days of the troubles in the 1970s, that Malta needs to have a Presidency that is more than the figurehead it is. It is for this reason that it was included in Azzjoni Nazzjonali’s electoral manifesto, for we hoped to spark off a debate that, not unexpectedly, was not taken up by those who could have made a valid contribution. Here, I take this occasion to wish Dr George Abela a most successful presidency within the constrained constitutional limits in which he has to operate. For some reason there is a feeling of expectancy that the new Presidency might finally make some sort of a difference beyond collecting money for the Community Chest Fund.
It would truly mark Dr Abela’s Presidency as outstanding, indeed monumental in the annals of modern constitutional history, if he could steer Malta towards acceptance of an office with enhanced powers. It is no use complaining in the press, on street corners, on social occasions, about nepotism and power networks if we do not try to give back to politics at least some of the credibility that seems to have been eroded. In this small country of ours, with an inherited culture of suspicion of its rulers (until recently all foreign) there should be ways of ensuring that justice is not only done, but seen to be done.
The “seen to be done”, which is vitally important in a small community like ours, was completely missed when Austin Gatt decided that conflict of interest, “in and of itself (it) does not preclude someone from serving in public office as long as that conflict is clearly declared and that the person having that conflict does not allow interests outside the public office he is appointed to function in the interests of that office.” (Times 15.03.09).
So, because the Chairman of the ADT leaves the room, we can rest assured that no member will vote against his personal interests. Who can believe in this hoary interpretation?
This is why Azzjoni Nazzjonali recommended, among other things, that:
• The President should be elected by universal franchise. He should not owe his position to anybody except the people whom he represents.
• The President should be the guardian of the Constitution. This might finally bring to an end comfortable agreements by the parties represented in Parliament without even consulting the people whom they claim to serve and to whom they owe their position.
• The President should chair a Council of State which will be empowered to investigate any reports of corruption in all the organs of government, including Parliament, the Courts, Local Councils and public and parastatal companies.
• Above all, and this is the easiest way to start, the President should nominate the Auditor General as well as the members of the Electoral Commission, the Public Service Commission, the Broadcasting Authority, and the MEPA after consulting the Prime Minister, the Leader of the Opposition and representatives of Civil Society.
The still ongoing problem of the power and energy hikes has led a lot of responsible people to ask where are the regulators that are supposed to reach independent judgements. If the above appointments and others like them are taken by an elected President, the citizen might finally find that he can trust appointees to these posts, and suspicion of government’s intentions would lessen. It is after all in the interests of whoever is running this country that his decisions are not contested all the time and vital energy consumed that should otherwise be devoted towards solving the problems facing the country.

Dr Josie Muscat is leader of Azzjoni Nazzjonali and a candidate for the MEP elections

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