The Malta Independent 21 September 2019, Saturday

Constitutional imperfections

Mark A. Sammut Sunday, 8 September 2019, 10:50 Last update: about 14 days ago

I share Noel Grima’s approach of comparing unfolding events in the UK and Italy. It is useful to public debate in Malta, as it has been somewhat scant.

Our historical dependence on the UK has continued even after formal independence. We had got used to it and old habits die hard. Moreover, our resources being limited, we cannot afford not to borrow. Our dependence on Italy is geo-historical, Italy being our Christian neighbour.

Let us have a quick look at recent events.

UK Prime Minister Boris Johnson asked the Queen to prorogue Parliament to allow Mr Johnson respite from his opponents’ manoeuvring.

Irrespective of the outcome, the move was criticised as potentially unconstitutional. Legal action was taken, but the critics lost.

The issue revolved round the Sovereign’s residual powers (or lack of them). Some quarters argued that the Queen had the residual power to refuse to accede to Mr Johnson’s request.

Then, after Mr Johnson lost the majority in Parliament, a law was passed to change the Government’s political direction. The issue of constitutionality was raised again, this time by the Leader of the House who, citing the constitutional author Dicey, argued that the objective of all laws should be to ensure that the will of the people be carried out.

Meanwhile, in Italy, hard-right leader Matteo Salvini decided to withdraw his party’s support for the Government, resulting in the collapse of the coalition with the Five-Star Movement (5SM). Mr Salvini had calculated that this would lead to new elections which his party, and Giorgia Meloni’s Fratelli d’Italia, would easily win, according to opinion polls at least.

However, the President of the Republic decided to allow the formation of a new coalition between 5SM and the Democratic Party. Giorgia Meloni has argued that this makes no logical sense, as both the 5SM and the DP had fought the last general election on the premise that neither would enter into a coalition with the other. The electorate voted according to this premise, and a coalition between these two would – according to Ms Meloni – defy the intentions of the voters. This notwithstanding, Ms Meloni did explicitly acknowledge that what the President did was constitutional.

The difference between the UK and almost everybody else (with the exception of a handful of countries) is that the UK has an unwritten constitution. What this means in practice is nebulous. Up till now, we – the rest of the world, that is – were under the impression that it was nebulous only for us. But now we realise that it is nebulous also for the British themselves. The fact that there is nothing in writing on the Sovereign’s residual powers, for instance, seems to raise questions as to the wisdom of having an unwritten constitution. By unwritten constitution one understands that the legal framework of the State is not found in one fundamental piece of legislation but is made up of customs, conventions, disparate pieces of legislation, precedents, authoritative opinions, etc.

For a moment, it seemed the British regretted not having a saying like the Italians do: patti chiari, amicizia lunga,a clear agreement engenders long-lasting friendship”.

Yet, even if the Italians do have this axiom, their written constitution does not seem to have avoided political discord. Despite their written constitution, some Italians were unhappy with the way that, they claim, popular sovereignty has been sidetracked.

These issues are not new in the realm of constitutions. Consider the US. It is very difficult to imagine that the original drafters of the US Constitution had abortion in mind, and yet, abortion in the US is considered by mainstream legal thinking as constitutional.

Indeed, this conundrum is “resolved” by the idea that the constitution is a “living tree”. In other words, irrespective of the intentions of the original drafters, a constitutional document is to be re-interpreted periodically to reflect society in its ever-changing forms and mentalities. For this school of thought, the wording of a constitutional document is not stuck in time; it is fluid and takes the shape proposed by unfolding current events and evolving dominant ideologies.

Which could mean that things would not change much for the UK if it were to codify its constitution and transition from an unwritten to a written one. All this necessarily leads me to repeat and stress Giovanni Bonello’s observation that it is better to have a bad constitution in the hands of good people, than the other way round.

On a different note. The prorogation of Parliament in the UK is a political act, and the traditional approach was that whereas there is legal regulation of official power, such power and acts deriving from it are not justiciable. And yet, legal action was initiated on the premise that political power was abused. The reasoning behind this action could be studied, irrespective of what the British courts decide. I am aware that there might be difficulties if one applies the analogical approach; yet, the most basic premise – namely abuse of political power – could be a premise to invoke the provisions of Chapter Two of our Constitution. It is unchartered, virgin territory – but it might be worth a try.

 

The need of the public to know

Some readers might have asked themselves questions upon reading my opinion piece of last Sunday, as to why the public should not know what goes on behind closed doors when the Commission for the Administration of Justice (CAJ) meets and deliberates.

Perhaps to get close to an answer, a thought experiment based on two points would be in order.

First. What would happen if the CAJ were not to adhere to in camera proceedings? What would the practical consequences be? Would the system survive the stresses and the strains? Does the need for having an orderly society outweigh the public’s perceived right to know? What is more important: that the public knows everything or that the system works well? When the CAJ is composed of members hailing from so many different places in society, why sow doubts in the public’s mind? It is in the common interest that there be special officials entrusted with the oversight of such structures, but that this oversight be not made public.

Second. The thought experiment should include the possibility, envisaged by the law, for Parliament to discuss the future of a member of the judiciary. If Parliament decides that such a member has committed an act which is serious to a degree that necessitates removal, then Parliament can remove such member. It is therefore difficult to understand the need to demand that CAJ proceedings be public, even on a selective basis, as Malta Today, in their warped vision of the world, seem to think.

There are very good reasons to keep the system as it is. Do they need to be spelled out?

In the book Il-Liġi, il-Morali u r-Raġuni, the late Giuseppe Mifsud Bonnici said (my translation):

“For the Commission to succeed in its mission, disciplining magistrates and judges should be a confidential matter, confidential to the Commission, that is, and not exhibited in public, as has happened in certain cases. ... Why should a judge or a magistrate be publicly accused? Except in extreme cases, needless to say, where the misbehaviour keeps dragging on. ... Proceedings should be in camera, not public. There should be dignity, not shows” (pp. 168-69).

The wisdom of Professor Mifsud Bonnici’s words lives on. Because ultimately, the judge and the magistrate represent the State not themselves.

 

Books thrown away!

The news of a truckload of religious books being disposed of like rubbish, alarmed many people when it broke out this week. Luckily, Heritage Malta took over. Kudos! The more heroic characters of this story are a lady with sound values and steely determination, and the Archbishop of Malta.

The real question to ask is, how many others have decided to throw away antique books and didn’t catch the eye of somebody like the lady who alerted the Archbishop? We have at least one recorded incident. In his book Reflections in a Canvas Bag, Mario Vella narrates an autobiographical episode, when somebody informed him that a truckload of books had been thrown away on a cliff. As any civilised person would do, he dashed to that place and tried to salvage as many book as he could. However, it seems he arrived too late and there wasn’t much left after the wind had carried a lot of books out to sea.

After the MUZA mould disaster, Minister Owen Bonnici must have felt that sharing the limelight, as  saviour of antique books, was a godsend... However, if Minister Bonnici really wants to be useful to the nation, he should create a mechanism whereby whoever needs to dispose of antique books, can get in touch with a State agency and find advice and assistance. The country would certainly benefit from more libraries and centres of learning.

 

AUM

The Government and Sadeen Group seem to be labouring under the impression that it is the State’s obligation to ruin the urban and natural environment. One can excuse Sadeen – when they see the rampage, they probably think that there is indeed an obligation on the State to turn the island into a concrete maze and to obliterate the historical heritage.

As a matter of fact – and this might come as a shock to Sadeen and the Government – the constitutional obligation on the State is to safeguard the environment and our historical heritage.

The proposed AUM extension, given its negative impact on the urban environment (less open spaces) and on our historical heritage (the entrance to Senglea), defies one of the principles set out in the Constitution.

But one need not refer to the highest law of the country – common sense and European values should suffice. In many places around Europe, there is the concept of university town. The town (or neighbourhood) becomes the university campus. Universities find existing buildings and convert them – with flair and taste, not by adding barbaric structures – into whatever it is that they need. Such towns then become vibrant centres of student life, with students living in the community rather than occupying a “gated” campus. Cafés, second-hand bookshops, and other university-related businesses start mushrooming, not around the “gated” campus but within the town itself.

There is no need to have a dormitory (with a swimming pool!) as an extension of a university building. Cottonera would benefit if students were to live within the community, creating a university town with material and intellectual affluence reaching inhabitants and local businesses. Now that would be a real revival of the Three Cities.

 

My Personal Library (65)

It is ironic that the UK itself does not have a written constitution, given that it imposed codified constitutions on its colonies at the time when they were transitioning to independence.

S.A. de Smith’s The New Commonwealth and Its Constitutions (1964) presents a general survey of constitutional developments in what were then the newly self-governing and independent countries of the Commonwealth. In the chapter called ‘The Advantages of Being Explicit’, Professor de Smith  admitted that “there are great practical difficulties in codifying the conventions on such matters as the dissolution of Parliament and the dismissal of Ministers”. But he also warned that “flexibility implies a high degree of uncertainty” – “uncertainty not only as to what rules should be applied but also as to how in any particular case they should be applied.” He added a presage: “Residual discretions which become exercisable in an atmosphere of political crisis inevitably expose the person who exercises them to partisan criticism; and a Governor-General or a ‘constitutional’ President is clearly more vulnerable to such criticism than the occupant of the throne”.

As an expert, de Smith could not foretell the future but he knew the system so well he could see its pitfalls, weaknesses, and risks, and could extrapolate. A layman would not necessarily follow de Smith’s intuition, and this is another reason why experts have to be overseen by other experts.

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