The British have historically held the view that government should not be just about formal systems of government enshrined in a rigidly written constitution but should be much more about the people into whose hands are entrusted the levers of power.
Malta is a country with historic links to Britain – manifested by the George Cross that proudly adorns the red and white. We have long-admired much that is British and we like to think we practise a parliamentary system based on the widely respected Westminster system of government. Britain has a bicameral system of government, with no rigid written constitution, allowing parliament unfettered power. Paradoxically, the House of Lords – a constituent part of this much envied system – is the most undemocratic house of government but it still effectively discharges its restricted role as a legislative house of review.
The stark juxtaposition between this and our system of government is this: the British Parliament, albeit lacking the rigid embrace of a written constitution, operates with traditional integrity and a level of governance envied worldwide, not based on enforceable statute law but on parliamentary conventions, a code of ethics which, albeit unwritten, is respected without question.
Conventions provide the checks and balances required for good and honourable government. In Britain, the principle of ministerial accountability is based on the parliamentary convention that demands the resignation of ministers who are held responsible for actions judged to be well below the standards expected by their parliamentary peers. Like other conventions, it is unwritten but has been historically upheld when it mattered and the passage of time has given it added value and credibility.
Conversely, in Malta’s case parliamentary convention is strengthened with specific written reference to ministerial accountability in our Constitution but with both conventional and constitutional references being totally ignored with impunity as if neither existed. Section 79 (2) of our Constitution specifically states that errant ministers are to be held responsible to Parliament.
Those who choose to look for escape hatches within the wording of our Constitution may argue that section 79(2) specifically refers to ‘collective ministerial responsibility’ as opposed to the singular accountability – clearly neither the spirit nor the intent of this historic document but the writer’s response to those who questionably wear the badge of Honourable Members, is this: Section 80 of the Constitution also makes it clear that the Prime Minister has the executive power to select and lead his Ministers in Cabinet. He clearly controls and thus represents the Cabinet, so it logically follows that when the errant Minister for Lands also happens to be the PM, section 79(2) of our Constitution has to apply under whichever interpretation it is given. There is no escape from it. What can or should be done about it is another question that we will address further on.
The Doctrine of Separation of Powers was first espoused by the French philosopher Montesquieu. It basically argues that the three organs of government should be kept separate and operated independently of each other. In effect, this means that the Legislature should limit its legislative powers to law-making, the Executive should use its powers for law-enforcement and the Judiciary should just be involved with adjudication or judicial functions. This doctrine was designed to avoid the tempting misuse of the concentration of power in one entity. As the phrase so famously coined by Lord Acton says: “Absolute power corrupts absolutely”.
How does this apply to Malta? The Prime Minister controls the Legislature by virtue of a strong majority granted to him by a disillusioned electorate. The Prime Minister heads the Cabinet which is the main constituent part of the Executive. Soon after the election, the PM lost no time in further tightening his grip on executive power by replacing the heads of the Police Force and the Armed Forces of Malta. Recent reports regarding the push for the appointment of new judges and magistrates, some of whom do not meet the qualifications criteria required by the Constitution, are strong indicators that the only remaining organ of government not yet under the PM’s control, the Judiciary, may not be immune from interference. Malta is treading a dangerous constitutional minefield not seen for many decades.
The resultant situation may be summarised as follows: A number of significant financial scandals with reported prima facie evidence of wrong-doing, and representing millions of tax-payers euros, remain substantially uninvestigated. The Australia Hall affair – involving the transfer of valuable land and historic property to the Labour Party for a pittance and subsequently appraised at a reported significantly much higher value – is now a fait accompli, whether tax-payers like it or not. Energy Minister Mizzi, outed with an undeclared Panama-registered company and New Zealand Trust structures, defended by the Prime Minister by calling for an audit which will no doubt show no significant funds in the accounts, thus deftly avoiding the real issue once again.
The whole purpose of a Panama company and trust structure could only be for harbouring undeclared assets and normally driven either by tax issues or disclosure of asset origin issues. Those structures obviously cost the beneficiary considerable amounts of money to set up and administer and equally obviously would only be formed if there was an impending reason for their existence. The audit is not likely to disclose the original intent (which no doubt has now been aborted) so it is just another charade designed to fool those unfamiliar with such matters and to protect the government.
So getting back to the question of what can be done about all this, the answer is probably ‘very little’. The Constitution was designed to provide some protection through section 79(2) to rein in a miscreant government. With its large majority in Parliament, there is no risk of the government losing a vote of confidence. There is, of course, the President – who is under oath to preserve, protect and defend the Constitution, but Madam President is highly unlikely to intervene. There is also the Constitutional Court, which would require significant legal resources in order to combat a recalcitrant government with unlimited taxpayers’ funds at its disposal. So, in a nutshell, this government seems free to ride roughshod over any principle of wrongdoing until at least the next election.
A. Trevisan