The New Republic

Guest commentary by Mark Scerri

The last two months of 2019 will go down in the annals of history as the months, which have exposed like a raw nerve, the brutal truth about the state of Democracy in Malta.

Malta is a democracy only in name, where 50% + 1 of the valid votes in a general election de facto grant unchecked powers to the Prime Minister such as absolute control over Cabinet, and the (majority of the) House of Representatives, the power to nominate the members of the judiciary, the police commissioner, the heads of all the regulatory agencies, the President of the Republic etc.

The fact that we hold free elections once every five years can never mean that we have a functional democracy especially when so much (unchecked) power is vested in the Office of the Prime Minister. This is a situation, which is more akin to elective monarchies than to modern liberal democracies.

In theory, the House of Representatives was meant to keep the powers of the executive (Prime Minister included) in check – in practice this is practically impossible, even more so, with the now-established practice of dishing out of jobs, retainers and so on, to the members of Parliament of the party in power. It seems that when the Independence Constitution was being drafted, it was assumed that the Prime Minister would always exert his power with circumspection.

The investigations into the assassination of Daphne Caruana Galizia and the revelations of the so-called middleman, culminating with the resignations of Konrad Mizzi, Keith Schembri and eventually of Joseph Muscat, have exposed a wound, which has been allowed to fester for far too long – the cosy relationship between the world of politics and the world of business. This, together with the hold the party in government has over the institutions of the State, is central to the Maltese moral question, just as much as it was (and still is) in Italy, and is the major handicap to the democratic growth of the country.

The major political parties in Malta have shed their roles in the shaping of ideas, ideals and the public conscience a long time ago; ideology, political programmes and passion are considered passé and have been replaced by organisations whose sole aim is the acquisition of power – at all costs. This is highlighted by the answer Keith Schembri gave to the journalist who asked him whether he felt that he had betrayed Labour, to which he promptly replied that “… I have given them 10 historic wins”.

He was perhaps right to point this out, because winning and winning at all costs has become the fixation of the major political parties. Organisations that should be dedicated to the advancement of the common good have become vehicles for self-aggrandisement. With this mind-set, it should not surprise anyone that, not only did the Prime Minister not use his powers with prudence, but used them to the fullest to milk the system dry.

What we have to keep in mind is that Joseph Muscat did not invent anything. He did not grant himself any additional powers, he did not use any power, which none of his predecessors did. Muscat stands out more because, in barely 10 years of office, he used to his advantage absolutely all the power afforded to him by the law. Replacing Muscat with Chris Fearne (or Robert Abela) or in a pipe dream … with Adrian Delia is not a solution. Even if they all act conscientiously, we could still at some point be in the same situation.

We need to ensure that Malta becomes a state, where the rule of law is always respected, where the checks and balances work well and where not too much power is concentrated in the hands of a single person. We need a second Republic and not simply a change in the person or the political party at the helm. This means that we need a radical overhaul of the Constitution to ensure there is an adequate response to abnormal situations such as our current crises.

In my view, we should follow the approach adopted by the Italians when they drafted the Republican Constitution, that is a bottom-up approach ensuring as wide a participation as possible in order to ensure ownership of the constitutional by the electorate.

For this reason, I suggest that a partly elected, partly nominated Constitutive assembly is set up and tasked exclusively with drafting the Constitution of the second republic. The elected members of the Constitutive Assembly should be elected using proportional representation to ensure representation of political minorities. Representatives of the local councils and various facets of Maltese civil society should be nominated on the Assembly to ensure the inclusion of a plurality of voices and that the debate is not dominated by the political parties.

The new Constitution should be written in a language, which is easy to understand and should, in my view include a number of radical reforms, which transform Malta into a fully functional Democracy.

One of the major moral issues of our political system is that of favouritism. Constituents seek favours (in the form of jobs, promotions but also the payment of bills, etc.) from the representatives of their respective district in exchange for votes. I propose to tackle this through the abolition of the electoral districts (this will also do away with the problem of gerrymandering) and treating Malta as one whole district and changing the electoral system to a proportional one with party lists.

This system has other advantages – that there will be strict proportionality between votes cast in favour of a political party and the number of MPs elected (one can discuss the issue of thresholds at a later stage). It will also enable the introduction of gender balanced lists to solve the pressing issue of female under representation.

The new Constitution should limit the Prime Minister’s powers to those of the chief of the executive organ of state, which focus on the implementation of policy as well as on the initiation of legislation. Nothing more. There should be a clear distinction between the legislative (parliament) and the executive (Cabinet) arms of the State. When appointed to Cabinet, members of parliament should give up their seat and be replaced by somebody else.

Additionally, the practice of nomination of the judiciary by the President, on the advice of the Prime Minister (de facto meaning that the Prime Minister has full control of the process), should be replaced by career judges and magistrates regulated by an autonomous body. Other issues the Constitution of the second Republic should delve into are: Malta’s constitutionally entrenched neutrality and its validity in the post-cold war era, a more consensual method for the nomination of the President of the Republic (e.g. parliamentary approval by a two-thirds majority) and whether it is the time to shift from a unicameral system to a bicameral system (to increases the checks and balances).

However, at the expense of being unpopular, I have to mention the elephant in the room, which is the issue of the party financing. It is not possible for the political parties to properly carry out their duties without financing. In order to ensure the independence of political parties, corporate donations should be totally banned and political parties should be publicly financed. This should make those backroom deals, which skew policy decisions in favour of corporate interests (e.g. development planning decisions) less likely.

It goes without saying that as with anything else, for the system to work, it would have to be enforced as strictly as possible. To this, I would tie the issue of the political television stations, which financially are a mill stone tied to the necks of the political parties and are also providing a disservice to society through their daily transmission of propaganda disguised as news. It is time to start considering banning the ownership of TV stations by political parties.

This would also prevent shenanigans such as circumventing funding laws through the sale of TV adverts. There should be a strict anti-revolving door policy, banning former ministers and prime ministers from taking up top posts in corporations or company boards for at least three years after they leave office.

There is also the issue of full-time parliamentarians. In 2020 we cannot have a part-time parliament. All parliamentarians should be full-timers and paid a decent salary. Ultimately, for the electorate to take ownership of the Constitution of the second Republic, I suggest approving it through a referendum.

To conclude, I will repeat a point made earlier on – the current political crisis has highlighted most of the issues that make Malta a dysfunctional democracy. Replacing the people or party in control of the deep levers of the state and leaving everything as is, is no solution!

Malta needs a constitutional overhaul to ensure there are enough safeguards and counterbalances to the power of those in control and that restraint in the use of power is not dependent on the conscience of a single individual. Only in this way can we ensure that the State is in a position to react quickly when faced with a similar constitutional crisis. Let 2020 be the year in which Malta finally becomes a mature democracy!