As the term of office of Dr. Edward Fenech Adami draws to a close, the role of the Presidency will, once more, be reviewed in the light of past experience.

Ranier Fsadni had some interesting things to say in The Times of 11 December under the heading Republic at the Crossroads.

As a matter of fact, this topic has been raised a number of times before – generally before the expiry of the term of office of succeeding Presidents since the late Eighties. It is worth pointing out that it was initially addressed by a select committee of the House of Representatives soon after the l987 election. The committee included three MPs who were subsequently elevated to the Presidency – Dr Censu Tabone, Dr Ugo Mifsud Bonnici and Prof. Guido de Marco – along with Mr Dom Mintoff and the late Dr Guze Cassar.

Those five Members drew up a first stage report to Parliament, which was never followed up, and a constitutional vacuum has lingered on as a result. It has to do with the powers of the Presidency.

Malta had enjoyed limited self-government for very many years before the people of these Islands became masters in their own home in l964. It has been said that “self-government is better than good government”, and that autonomous government is better than benevolent government administered in the interests of a foreign power.

There is a universal natural desire for people to manage their own affairs, or to have a real say in the management of these affairs. The democracy of ancient Greece is the earliest example of a community ruling itself with a substantial part of the population playing an active role in decision-making.

It has taken a long time for the notion of self-government to evolve and take root. This kind of democracy, however satisfying, has its shortcomings. In a certain sense, the demand for self-determination is a demand for freedom. In another sense, the demand for independence could end up by narrowing, rather than broadening, the sphere of human rights.

As we survey recent history, we must not forget that Nazism and Fascism in Germany and Italy came to maturity in essentially democratic societies that provided tools for discussion and for the mobilisation of public opinion.

Anti-democratic elements, operating in a democratic environment, were able to overthrow the democratic system by capturing the attention and support of people in whom the principles of liberal democracy were only weakly rooted. Sheer numbers could upset the democratic applecart.

In Malta, things have never got that far, but we have passed through periods where polarisation was at a high pitch and excesses, which could not be tolerated by any democratic standards, were registered.

There were instances where the State rode roughshod over the constitutional rights of the citizen, and where the law courts were sacked. Those ugly days are over, but democracy is not out of danger.

From time to time, blatant evidence of clientelism and the strong stench of corruption shake the nation’s democratic conscience. No one seems to be accountable. There is no constitutional guarantee of an independent investigation to establish the facts, and to assuage public opinion. There are no resignations, and life goes on from one scandal, real or imaginary, to another. If the government of the day shirks its duty, there is no one to reassure the sovereign electorate that what is wrong is going to be sanitised.

What is worse, there are situations where the spirit, and perhaps the letter, of the Constitution are denuded of their vitality, notwithstanding the fact that an oath of office is administered to ensure that the Constitution is “preserved, protected and defended”.

One case in point is the constitutional provision that is supposed to guarantee that, when a person is charged with a criminal offence, he or she is entitled to a fair hearing “within a reasonable time” by an independent and impartial court.

Our courts are independent and impartial but, progressively, Maltese justice is not, in many cases, being dispensed “within a reasonable time”.

The Malta Independent on Sunday carried a story, as recently as this last 14 December, about a court case involving a claim of Lm400 that took 17 years to decide!

The number of pending court cases has piled up and is outrageous. Some magistrates are said to have even declined to provide “basic information” about their backlog.

Justice is being delayed, and to the extent that it is delayed, it is being denied. Sometimes, a particular magistrate may not be at fault, but the same cannot be said about a good many cases, where the law and the Constitution are being rendered meaningless – and this in spite of the fact that the Constitution provides expressly for a Commission for the Administration of Justice.

One could not expect the government of the day to impose itself upon the independent judiciary. There is an elected parliament to legislate where needs be. There is an elected government sworn to bear true faith and allegiance to the people and to the Republic and its Constitution.

In this case, the fundamental rights and freedoms of the individual citizen are involved.

It has resulted, in the light of all this, that it is not enough to entrench human rights’ safeguards in the Constitution – although the European Court of Human Rights might now afford long-term, ultimate satisfaction to aggrieved citizens.

What is important is to set up the machinery that could provide for timely initiatives to be taken, or to act as a court of last resort in similar situations.

It is not enough for the Constitution to enshrine the people’s rights. It must provide a constitutional formula to guarantee such rights as are denied to citizens by omnipotent institutions. In other words, democracy has to be underpinned in real terms.

The question arises as to whether the time has come for a meeting of minds to provide for the institution of a Council of State, (with the President of the Republic in the chair) with powers to act as guarantor of the Constitution.

This would make it possible for the guarantor to intervene when the provisions of the Constitution are blatantly violated or otherwise not honoured, and when those sworn to safeguard the Constitution fall short of their assignments.