When Dr Ugo Mifsud Bonnici assumed the office of President in l994 – the fifth to hold this office since Malta became a Republic in 1974 – he vowed to uphold the nation’s trust in him.

He described how he had participated in the discussions that shaped the functions of the President’s office some 20 years earlier, and promised to keep “scrupulously within the bounds of the letter and the spirit of the supreme law of the land”.

He went on to say that this did not mean that he looked at the Constitution in “a

passive and negative way”. He emphasised his commitment to promote “the positive values which are part of the Maltese cultural identity”, making specific reference to Christian values and virtues.

This is good enough as far as it goes. It is, however, one thing to promote these and other values, and another to guarantee them.

Such guarantees must flow from the Constitution, and it would perhaps not be amiss to suggest that the Constitution should provide for a Council of State, headed by the Presidency, to play the role of ultimate guarantor.

Constitutional vacuum

If the democratic process in these islands is to function satisfactorily, in delicate areas where the democratic equilibrium or the national interest transcends political party considerations, the

powers of the presidency need be strengthened.

This sensitive consideration was addressed by a select committee of the House of Representatives soon after the 1987 elections. That select committee included three MPs who subsequently became presidents (Dr Censu Tabone, Dr Ugo Mifsud Bonnici and Professor Guido de Marco) along with Mr Dom Mintoff and Dr Guze Cassar.

The five drew up a unanimous first-stage report to

parliament that came to naught. The constitutional vacuum lingers on.

Malta had enjoyed limited self-government for very many years before the people of these islands became

masters in their own home with independence 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 primary interest of a foreign power.

Innate danger

There is a universal natural desire for people to manage their own affairs and to have a real say in the management of these affairs. The democracy of ancient Greece is the most famous 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 spread out. 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 the world, we must not forget that Nazism and fascism in Germany and Italy came to maturity in essentially democratic societies that provided tools for live 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 the support of people in whom the principles of liberal democracy were only weakly rooted. Sheer

numbers could upset the democratic applecart.

In Malta, we have passed through periods where polarisation was at a high pitch and excesses were registered that could not be tolerated by any democratic standards. Those ugly days are over. But democracy is not out of danger.

Accountability

From time to time, blatant evidence of clientelism and the strong stench of corruption shake the nation’s democratic conscience. The arrogance of power appears in flashes: no one seems to be accountable. There is no independent investigation to establish the facts and assuage public opinion when scandals come to light. There are no resignations, and life goes on from one “scandal”, real or imaginary, to another. If the government of the day is accused of shirking its duty, there is no one to reassure the sovereign electorate that everything is above board or, alternatively, that what was wrong has been remedied.

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”.

A 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, increasingly, Maltese justice is not dispensed “within a reasonable time”.

The number of pending court cases piles up to a degree that is unacceptable and so is the number of magisterial inquiries that take ages to be disposed of. There have been moments when some magistrates have declined to provide the ministry with basic information about their backlog.

Missing machinery

Where justice is delayed, it is denied and in such cases is being rendered meaningless.

One could not expect the executive (meaning the government of the day) to impose itself on the independent judiciary. There is, however, a Commission for the Admini-stration of Justice to keep an oversight on the judicial process.

There is an elected parliament to legislate where necessary. 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 fundament-al rights and freedoms of individual citizens are involved. It has resulted that it is not enough to entrench human rights safeguards in the Constitution – although recourse to the European Court of Human Rights might 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 only in this way that our Constitution can guarantee satisfaction when citizens are denied their rights by the omnipotent institutions. In given situations, democracy has yet to be underpinned in real terms.

What is perhaps needed is a supreme Council of State, presided over by the President and charged with the power and responsibility of intervention 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.

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