First thoughts on Malta’s constitutional convention

I was sorry to have missed the President’s Forum two weeks ago dedicated to discussion of the Constitution of Malta, but regrettably I was abroad. As the President knows, the independent think-tank, the Today Public Policy Institute, of which I have the honour to be Director General, has been in the process of conducting a review of Malta’s Constitution for the last four years. Most unfortunately, due to Father Peter Serracino-Inglott’s very sad death (Father Peter had been the Lead Author of the report), it is only now nearing completion under the leadership of a new author.

Dr Edward Warrington, the Head of Public Policy at the University of Malta, has kindly taken on the task of completing this report. He is a specialist on the governance of small States and an adviser internationally on the subject. He was formerly Secretary to the Public Service Reform Commission and was much involved in advising on other aspects of public administration reform in Malta. He read public administration and political science at the Universities of Malta, Toronto and Oxford and is the author and co-author of numerous scholarly publications.

I am confident that he will produce a balanced and sensible report, grounded in common sense and the need to safeguard the essential elements of a Constitution which, on the whole, has served Malta well for the last 50 years. Subject to printing constraints, we are planning to publish the report within the next month or so.

As those of you who are familiar with the think-tank’s reports – of which nine have now been published covering a wide range of subjects – they reflect a set of ideas, options, approaches, conclusions and recommendations advanced by the relevant Lead Author with the objective of stimulating a wide-ranging public dialogue and debate, leading to subsequent policy decisions and action by government.

Since I presume that this is what the government had in mind when it declared in its manifesto that it would establish a Constitutional Convention to consider the workings of the Constitution and how it might be improved, I have informed the Prime Minister that my Board is placing the think-tank’s report at the disposal of the government when it is published as a basis for further discussion.

It is unfortunate that the Constitutional Convention – a good idea in itself – has got off to a slightly rocky start. We had recommended in our proposed ‘manifesto’ entitled “A Strategy for Addressing the Nation’s Priorities”, which we had submitted for the parties’ consideration just before the election, that a high-powered Commission of Inquiry under the President should be established to deal with this issue. It is not yet clear what shape the Convention will take, but it seems to me that there are four points that should be addressed at the start.

First, the importance of having somebody of the stature, political independence and objectivity of the President overseeing it could still be introduced without undermining the Law Commissioner’s role in organising the Convention and in due course submitting a report to Parliament on its outcome. Consensus-building will be key to the success of the Convention. The presence of the President might help defuse some of the current political heat which threatens to undermine the Convention before it has even begun.

Secondly, it is equally clear that the discussion during the Convention should be under-pinned by a sound assessment of where our Constitution stands today, what are its strengths and weaknesses and how it might be improved to the greater good of our country. It is no good trying to cherry-pick aspects of it – whether it be neutrality, or national days, electoral reform or public broadcasting, to mention just a few items which have caught the public eye recently – without at the same time recognising that each action has an equal and opposite reaction and the Constitution has to work as an organic whole. This, I hope, is where the think-tank’s report by Dr Warrington might come in useful by setting a benchmark for further constructive discussion.

Thirdly, the selection of attendance of delegates to the Convention will need very careful consideration. It should attract as wide a representation of Maltese civil society as possible, but must not be so large as to be unmanageable. It should work to a clear schedule lasting several weeks or months and focus on specific areas. It cannot simply be a brainstorming session, but must be able to concentrate on particular themes and make clear proposals, guided by experts in those fields.

The Convention should listen carefully not only to those in the academic and legal fields who have made a careful study of the Constitution, but should also hear from those who have worked with it at the political rock-face: our former Prime Ministers, Speakers of Parliament and Presidents of the Republic. They, more than most, know not only where the wrinkles lie in our Constitution, but also the political realities of any proposed changes.

Fourth, it is essential that, once the Convention has taken place and a distillation of all the ideas and proposals which have emerged from it have occurred, a Parliamentary Committee should take the matter forward to the next step, tasked with proposing the necessary amendments to the Constitution. It may be that a referendum on the issue may be needed (though my personal view is that matters of such complexity do not lend themselves to referendums). If the Convention has done its work properly this should not be necessary since a measure of agreement should by then have emerged on the sensible way ahead.

Indeed, if political agreement has not proved possible, not only will the Convention have been a failure, but also attempted amendments to the Constitution could prove highly risky and destabilising. It would be far better in such circumstances to abandon the project and stick with the tried and tested current Constitution.  

In embarking on this project, it is important for the Prime Minister to recall that you tamper with a Constitution at your peril. We have only to see the results of the Hungarian government’s recent reform of their Constitution, which led to considerable concern within the European Union. Or the unfinished business in the United Kingdom in the reform of the House of Lords – still incomplete 12 years after the event – to recognise the severe risks involved in not getting things right from the start. In matters of the Constitution of Malta, it might be wise to be guided by the old adage: “When it is not necessary to change, it is necessary not to change”.

There is an undoubted need for a review of our Constitution. Much has changed in the last 50 years, not least Malta’s accession to the European Union. But it remains a moot point whether the Constitution requires refinement, embellishment, restoration, reform or complete re-design. The way in which the Constitutional Convention tackles these issues will need very careful consideration, great tact and the most delicate choreography. The Today Public Policy Institute hopes shortly to make a contribution to this process by stimulating an intelligent and well-founded public debate on the subject.