Malta is one of those countries that do not enjoy a recall mechanism. Indeed, once voters elect a Member of Parliament they are stuck with that MP throughout the duration of the whole legislature, even if s/he does not perform or under performs, as Prime Minister, Minister, Parliamentary Secretary, Leader of the Opposition, Shadow Minister, or MP. As the position currently obtains it is the leader of the political party in question that determines the fate of fellow elected representatives and of his/her own.
This implies that once power is concentrated in the hands of the party leader, the electors are deprived from the possibility of requesting that an un-performing MP is recalled from office and unseated. Indeed, we do not live in, nor known of, a democracy where there is rule by the people, but, instead, in a representative democracy. The latter, in concrete terms, means that the party leader (in government or opposition) usurps popular power and transforms him/herself into an autocrat.
Indeed, as our indirect democracy works out in practice, when the Opposition requests the resignation of a government minister or parliamentary secretary, normally the Prime Minister (of whichever colour or flavour it might be – red or blue) goes completely out of his/her way to support that minister or parliamentary secretary. So do the MPs in the parliamentary group that faithfully and loyally emulate the party leader indicating that they have no brains of their own. Being shameful, of course, is not a virtue practised or cherished by our MPs. Should the leader decide that the MP should go, normally the MP willingly resigns out of his/her volition so as not to embarrass him/herself and his/her political party. It is extremely rarely that an MP is sacked for misbehaviour.
Nevertheless, although I have no difficulty with the party leader deciding the fate of his/her members in the parliamentary group, in the same way as the puppet master pulls the strings, such as whether to demote them from, or promote them to, ministerial office or simply changing their ministerial duties following a reshuffle, the people should also have the right to recall an MP with whose performance/behaviour they are utterly unsatisfied.
As the law obtains today, the representative democracy in which we live entitles voters to cast their ballot once every five years and then have to lump their representative in parliament for all the misdeeds s/he does. It is only after a five-year wait, when the damage done is irremediable, that voters can unseat the shunned MP. In the meantime, the MP is not directly accountable to the people. Accountability, in our representative democracy, is to Parliament, not to the people. MPs are only accountable to themselves. The inevitable question is: what situation is this where the people are completely side-lined in what is, with tongue in cheek, referred to as a ‘democracy’? An oligarchical democracy?
How many times have we witnessed on Parliament TV MPs not attending parliamentary sittings except when an important vote is called, or attend very late for the sitting if not withdraw early as well? How many times do we observe that MPs do not take the floor to discuss each and every bill that is tabled in the House of Representatives? At times, MPs decide to go their own way and forget that they have been elected to represent the constituency that has elected them. At other times they abuse parliamentary privilege or misbehave in the House and cannot be censored because the party machinery supports their misdeeds, this notwithstanding. The Committee for Standards in Public Life is a glaring example of a hijacked parliamentary committee that has power to sanction an MP but, for political reasons, refrains from doing so.
Once the Committee for Standards in Public Life has proved itself to be ineffective, there are two solutions to this problem: state accountability (not to be confused with parliamentary accountability). First, its composition needs to be changed. Second, it should be afforded powers not only to decide against MP misbehaviour but also to enforce its decisions. The Committee for Standards in Public Life should not be made up of MPs who have clearly a manifest conflict of interest to defend their brother or sister in the House who is accused of breach of parliamentary ethics.
As in the case of breach of parliamentary privilege, it should be an external body that ought to decide the matter, not the House itself. So as not to politicise the judiciary, it should not be the judicial branch. Instead, it should be a constitutionally appointed Committee. Its membership can be drawn from retired Presidents and retired Chief Justices as these are known for their impartiality: retired Presidents because in office they represented the state and not a political party and acted in a neutral fashion; retired chief justices because this is an indispensable criterion for their past appointment. Persons of known integrity with no past political involvement could also populate this committee.
As to the second matter of rendering the Committee’s decisions effective, the proposed Constitutional Committee should be empowered to enforce its own decisions. Parliament should have no say in the matter. Otherwise, it would end up like today – the laughing stock of Maltese society. Parliamentarians have made it a habit to make a fool out of themselves and, in turn, tarnishing Malta’s reputation abroad. Of course, one understands that, notwithstanding the integrity of the persons appointed thereon, there might be matters that require review by higher authority. Once again, one can draw a parallel from the judicial branch. In terms of the Constitution, when it has been decided to remove a judge from office, the judge can appeal that decision to the Constitutional Court. The same mechanism can be used for MPs.
Nonetheless, whilst in the case of the judiciary, they may be removed from office, the Constitution should also allow the Constitutional Committee for Standards in Public Life and, on appeal, the Constitutional Court, to unseat an MP and/or to prohibit an MP for contesting subsequent elections for such time period as the Committee or, on appeal, the Court may establish in its decision, including for an indefinite period, depending always on the gravity of the case. Thus, for instance, if an MP draws a pistol from his/her pocket and shots and kills another MP in the House, the ultimate sanction should be both his/her unseating and perpetual inability from contesting any future general election apart, of course, from the criminal sanction for wilful homicide and illegal possession of a firearm.
Yet the above solutions still leave the elector out in the dark. For the elector has no say should the Committee or the Constitutional Court opt not to take any effective action, for electors may be of the view – on political rather than strictly legal grounds – that the MP should be unseated. For an MP might have complied to the letter with parliamentary ethics, but is still considered incapable for office such as when s/he is lazy, disrespectful to electors, or fails to take up constituency issues in the House. Electors should have the right, as in foreign jurisdictions, to unseat a misbehaving MP. For instance, just to mention only one example, the United Kingdom has in 2015 enacted a law to recall MPs. If the British have increased political accountability to the benefit of electors, why should not Malta that declares itself to be a democracy introduce that mechanism as well? In this way, MPs are kept on tenterhooks throughout the whole legislature and not only when a legislature is nearing its irremediable end. In a true democratic state – not like the Maltese of course – people really matter.
Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta