The Malta Independent 29 January 2023, Sunday
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Breaking the deadlock on the anti-deadlock mechanism

Mark Said Sunday, 15 January 2023, 07:44 Last update: about 14 days ago

The original law setting up the Standards Commissioner’s Office, whose job is to investigate complaints and disciplinary issues concerning MPs, lays down that the Commissioner must be elected through a two-thirds majority vote in Parliament. Indeed, Article 4 of the Standards Act states that the Commissioner is appointed by the President of Malta supported by the votes of not less than two-thirds of the House of Representatives, which is the same procedure followed to appoint both the National Auditor and the Ombudsman. That two-thirds rule had a ratio legis of compelling the government and Opposition to find common ground and appoint a person who enjoys both parties' trust. But it can also lead to stalemates that are nearly impossible to resolve if both sides are unable to agree on a nominee. Indeed, such a scenario had already been envisaged by the Venice Commission as well as the Organisation for Economic Co-operation and Development (OECD).

With the background of Prime Minister Robert Abela at loggerheads with the Opposition over the selection of the country’s next Standards Commissioner, while we were all taken up by celebrating the Christmas season, the government stealthily published a controversial new law that will change the way the Commissioner is appointed and ensure the appointment goes the way of the government of the day.

The anti-deadlock mechanism that the government wants to introduce would allow MPs to appoint a standards commissioner by a simple majority if two initial votes fail to garner a two-thirds majority and each of those three votes would have to be held within seven days of the previous one. Repubblika soon came out publicly decrying this proposed Bill as eroding democracy and continuing to ridicule Parliament. The Nationalist Party described it as symbolic of Abela’s dictatorial behaviour while the Malta Law Students' Society (GħSL) claimed that it will tend to politicise any appointment of a Standards Commissioner in case of a stalemate.

So where do we go from here? Let us put the original law’s enactment in its proper perspective. In 2017, Parliament unanimously approved the Standards Act, establishing for the first time an institution empowered to oversee the ethical conduct of MPs, ministers and persons of trust. However, for reasons still to be unravelled, the law did not effectively guarantee the independence of the Commissioner, considering that Parliament could repeal or amend the Standards Act by a simple majority at any time, including abolishing the Office of the Commissioner by a simple vote.

Therefore, once we are still at a stage where constitutional reform is on the agenda and still subject to proposals and discussions, is it not a golden opportunity to seriously consider having the process of appointment, role and functions of the Commissioner included in the Constitution of Malta? This is already the case with other parliamentary oversight bodies established, particularly the National Audit Office and the Office of the Ombudsman. We recall how the Office of the Ombudsman was entrenched in the Constitution of Malta by Act No. XIV of 2007, which amended the Constitution (Article 64A) in order to include information on the Ombudsman and the Office, and Act No. XLII of 2020, which complemented Article 64A with additional information on the process of appointing, removing and suspending the Ombudsman.

Article 6(1) of Chapter 570 states that the Commissioner is appointed for a five-year term but is not eligible for reappointment. This short period of appointment, combined with the impossibility of renewal, inhibits any sitting Commissioner from fully realising the functions assigned by the Standards Act during his or her mandate. For instance, the Canadian Conflict of Interest and Ethics Commissioner is appointed for seven years and is eligible for reappointment for one or more terms of up to seven years each.

We have just come out of a potential deadlock when, despite having finished his five-year term in early 2021, the incumbent Ombudsman remained in Office because there was no political agreement on a replacement. An effective anti-deadlock mechanism for the Standards Commissioner’s appointment can be that, in the event that the House of Representatives does not vote on or successfully choose a Commissioner, the Judicial Appointments Committee, established by Article 96(a) of the Constitution, could make a binding recommendation to the President of Malta for the appointment of a Commissioner. Coupled with that, Parliament could consider amending the Standards Act to allow for a five-year term with the possibility of reappointment for one consecutive term of five years, supported by the votes of not less than two-thirds of the House of Representatives. This would bring the terms of appointment and reappointment in line with the Ombudsman and the National Auditor.

Furthermore, a fundamental element for the independence and total impartiality of the Standards Commissioner’s Office is granting this oversight body the ability to hire the necessary staff independently from the executive. The law itself, by virtue of Article 11, fulfils this requirement in part by empowering the Commissioner to appoint staff, officers and employees, to his Office as may be necessary for carrying out his functions, powers and duties. Additionally, the Commissioner does not report to the Executive or through a minister, but directly to the House of Representatives, which grants him full autonomy and independence with accountability only to Parliament. However, the Standards Act omits to assign a legal personality to the Office of the Commissioner, threatening the Office’s independence by creating potential conflicts with Article 110(1) of the Constitution, which sets the conditions for the appointment, removal and disciplinary control over public officers.

Without its own legal personality, the Office of the Commissioner is technically part of the government and, arguably, subject to Article 110(1) of the Constitution of Malta. This means that without its own legal personality, the Commissioner’s staff would be appointed by the Prime Minister on the recommendation of the Public Service Commission, like most government employees, as established in Article 110(1) of the Constitution. However, the aim of Article 11 of the Standards Act is clearly to separate the Office of the Commissioner from the government and protect it from any political interference to guarantee its independence and objectivity.

Needless to say, in spite of public statements to the contrary, both the government and the Opposition will continue to harbour an inner temptation to somehow retain some form of political control over who is, at the end of the day, appointed as Standards Commissioner. While the two-thirds majority requirement in Parliament is meant to ensure cross-party support for the heads of independent offices, our deeply polarised nature of politics will continue to constitute a stumbling block. So does this mean that the current stalemate is bound to be repeated in future with the whole political issue being easily settled by a stroke of the pen with the enactment of this Bill that the government is piloting?

Hopefully not, as, otherwise, it would only be a strong confirmation that our long-cherished democracy is truly in crisis. It is augured that our main political parties truly heed the importance of satisfactorily, transparently and, above all, constitutionally solve the current impasse.

Dr Mark Said is an advocate

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