Misrule of law is endemic in Maltese society. It is constitutive of the politician’s DNA. It is so much ingrained in a politician’s psyche, that it is more than a habit or hobby: it is part of the political cultural heritage. It is reflected in our national identity, is institutionalised, and is what makes Malta distinct from other societies. It is our politicians’ national pride!

It is not possible to list all the cases of misrule of law that have happened in Malta since it obtained its independence in 1964 as, to do so, the Editor will not only run out of space but of paper. However, let me mention a couple of instances that are still ongoing.

More than one year ago, the term of office of the Ombudsman came to an end. One would have expected that before this term would have elapsed, a new person would have been identified to replace the current incumbent. Again, the Commissioner for Standards in Public Life was recently appointed to the EU Court of Auditors and his office still has no replacement. One asks: what’s the urgency in filling these offices, other than avoiding bad omens for government?

The President has a clear provision in the Constitution that obliges him to sign a bill approved by the House of Representatives ‘without delay’, meaning forthwith, immediately, but conducts himself in a way as to abdicate his constitutional duties. A majority of MPs in the Opposition bench inform the President that they have no further trust in the Leader of the Opposition but the President, contrary to the provisions of the Constitution, failed to act and do his constitutional duty.

There is an express provision in the Constitution stating that the President, on the advice of the Prime Minister, cannot assign ministerial responsibility to a minister to whom ordinary law does not assign him or her that responsibility. But what happens in the case of the Wild Birds Conservation Unit? It is assigned to the Minister responsible for Gozo when the Environment Protection Act and the Wild Life Regulations assign it to the environment minister.

Disobeying the law in Malta is part of our culture, our way of life. The message that politicians convey is that they are above the law, that the law does not apply to them, and that they are there not to serve the law but to abuse their office.

If one is served with a police citation for a traffic contravention, one seeks the assistance of a Minister or MP to be acquitted from the charge.

If one gets a refusal by the Planning Authority of a development permission, one seeks political assistance to have the right decision overturned.

If a constituent has broken the law, the Minister will put loads of pressure on, or provides guidance to, an upright civil servant to retract the lawful decision against the non-abiding citizen.

If the Constitution mandates that no person (and ‘no’ means ‘nobody’, no exceptions made) is appointed as a person of trust, the government appoints around 800 such persons – all appointments being made in breach of the Constitution. Not only so, but government, instead of admitting that this is a wrong practice, instead seeks legal advice to support its contention that what it is doing is correct and lawful when the Ombudsman, the Public Service Commission, and several reputable international and European institutions acknowledge that recruitment of persons of trust is illegal as it flies in the face of the Constitution and the principle of merit. Being unmeritorious these appointments are consequently unjust. A former Principal Permanent Secretary justified this unconstitutionality with nonchalant candour.

The government during the most crucial part of an electoral campaign, when it is at panic stations, decides that it is the best time to start handing out cheques to parts of the electorate by way of a budget measure, a procedure which was interpreted by the OSCE as enticing the recipients to vote for the incumbent government. Yet for the police this did not amount to a corrupt practice: instead of pressing charges and letting the court rule on whether it was a corrupt practice or not, the police proactively pre-empted the courts from administering justice. Why should they, after all, embarrass the government? Buying votes with taxpayers’ money will surely not affect the outcome of an election!

The list of ongoing misrule of law instances continues and continues unabated.

Having identified the problem – continuous ongoing unfaltering and uninterrupted misrule of law – the next step, one would normally presume, is to identify the solution. However, what would, under normal circumstances, appear to be plain sailing and straight forward, is surely not the case in the banana republic of Malta that places political partisan expediency above cherished European values such as good administration, rectitude of public officers, prosecution of corrupt practices, and rule of law.

In order to do away with what the Daphne Caruana Galizia Assassination Board of Inquiry Report (DCG report) termed a ‘culture of impunity’, serious measures need to be taken. But the only problem here is not really the actual identification of these measures but the political willingness to see them through.

Indeed, politicians are so comfortable with the politically and morally corrupt status quo that it is not in their interest to take any of the measures listed both in the DCG report and those below to redress the culture of the misrule of law. So if the President defies the Constitution, nothing happens. If the Prime Minister, ministers and parliamentary secretaries employ unconstitutionally persons of trust, nothing happens. If the Commissioner of Police fails to act, nothing happens. Nobody is held responsible except the poor citizen!

This is typical of a mafia state where everything is done in the open but nobody sees nothing, nobody hears anything, nobody takes any action. Conclusion: the end result is that nobody is punished. Omerta’ at its best!

The Measures that Need Urgent Adoption

Various measures are needed to redress this politically and morally corrupt situation. Several have been identified – though not acted upon – in the DCG report. Others include:

(1) There has to be stipulated in the Constitution a time period within which all appointments are to be made.

(2) The Commissioner of Police should be henceforth appointed by the Judicial Appointments Committee not by government.

(3) There should be written down in the Constitution an effective deadlock mechanism, not like the ridiculous one proposed by the government whereby if no agreement is reached with the opposition, then the government appoints its puppies, opposition notwithstanding, for in this way the government will always bypass the opposition. Where the appointing authority fails to appoint within the constitutionally mandated deadline – that should not be beyond three days from when the vacancy arises – a neutral third party (that could be the Chief Justice) should make the appointment within one week.

(4) There should be a provision in the Constitution that penalises inaction by a public authority. For instance, when the President defies the Constitution and fails to sign a bill that had been sent to his office for signature, within a maximum of one week from the date of receipt, the Speaker should inform the House of that fact and a motion should be automatically tabled by the Speaker for the President’s removal from office on the basis of misbehaviour and for acting in contempt of parliament’s authority.

(5) If the misbehaviour is committed by the Prime Minister or the Leader of the Opposition, or both, then the Speaker, after having ascertained expeditiously the facts and after having allowed them to make their case why they failed to act as per the provisions of the Constitution, should declare them unseated.

(6) As the legislature is feeble to address maladministration and the public has in large part been excluded from the Constitution’s enforcement, the Constitution needs to be amended to extend the enforcement of the Constitution by way of a popular action in relation not only to laws that are unconstitutional as is now the case, but to all actions that are unconstitutional, except for those actions where such a remedy is already provided for in the Constitution as in the case of human rights actions, or which are not actionable in court as in the case of Chapter II provisions that are judicially unenforceable. In this way, the people will have direct recourse to the Constitutional Court as a court of original and final jurisdiction.

(7) There should be established a new constitutional public office to the styled ‘Defender of the Constitution’ whose purpose is to ensure that all public officers, bodies, and authorities comply wholeheartedly with the provisions of the Constitution. Should this not be the case, s/he should be empowered to institute proceedings before the Constitutional Court as a court of original and final jurisdiction. The court should hear all proceedings with urgency, that is, once the case has started to be heard, it has to continue to be heard on every consecutive working day, morning and afternoon, uninterruptedly, until it is decided. Failure to do so will constitute judicial misconduct. Once a judgment is delivered it will become effective erga omnes, prevailing over all ordinary law inconsistent therewith, and all ordinary law shall have to be interpreted subject to that judgment.

(8) Whilst ministers are limitedly accountable to parliament and to the judiciary, the judiciary need to have their accountability standards raised through the establishment of a self-governing organ to be styled the Judicial Supervisory Authority and through an Independent Special Prosecutor for Judicial Misconduct who will act before the Commission for the Administration of Justice and the Constitutional Court in judicial disciplinary cases.

(9) A right to recall shall be added to the Constitution, whereby a Member of Parliament may be recalled and removed from office by the people.

(10) The Referenda Act should be amended to allow the right for the people to initiate and approve legislation in parallel to, and without the intervention of, the House of Representatives.

(11) The constitution’s alteration provision should be rewritten as it was originally in 1964 to have several other provisions of the constitution entrenched with a referendum requirement in order that they may be changed, so as to reduce the powers of the current duopoly in the House.

Unless all organs of the state are held accountable for misrule of law, Malta will continue to be the laughing stock of Europe and the recipient of international disdain and censure. All this thanks to our political class.

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta