The constitutional reform has merely been a “check the box” exercise which has not been enough to guarantee that people of integrity are appointed to Malta’s highest offices, human rights lawyer Therese Comodini Cachia said.
Comodini Cachia said a constitutional reform would be meaningful if it brings about political, cultural and social change over a long spectrum of time. The constitutional reform, which has taken place over the past few years, has not been meaningful she said.
The former PN MP was interviewed by The Malta Independent on Sunday on how the Constitution could be amended to guarantee that the right people are appointed in the highest offices without there being a deadlock.
Comodini Cachia was elected as a member of the European Parliament in 2014 as a Nationalist Party candidate and held this post until 2017. That year, she contested the general election and was elected as a PN member of Parliament until the end of that legislature in 2022.
At a point during the interview, she paused and said: “Look, I've lived through 10 years in politics and I've been a lawyer for the last 25 or 26 years, and my observation has continuously been… that the procedures are important and having a procedure that can give you some security of knowing that the person appointed will be independent is good and needed, but in reality, whether that person is independent or not depends not on the procedure. It depends on the value that person places on his/her own independence.”
This seemed to be the overarching message that Comodini Cachia communicated throughout the interview. That although constitutional reform and procedures for the appointment of persons in Malta’s highest offices were important, this will have no effect unless there is a cultural shift towards prioritising state politics and the appointment of independent capable persons, rather than partisan politics and the appointment of people who are easily influenced.
Having said that, she carried an almost poignant tone throughout the interview when she expressed her “frustration” as she has not noticed any change in mentality.
No need for an anti-deadlock mechanism, just use ‘constitutional common sense’
In an interview with The Malta Independent on Sunday, President George Vella expressed his worry that he may have to stay on in his post if the government and Opposition fail to reach an agreement on his successor. Since his appointment in 2019, changes to the way the president is appointed mean that a two-third majority is now required. Given the differences between the two parties on the appointment of the Standards Commissioner, it is probable that it will not be easy to find a person both sides want. Last week, Opposition Leader Bernard Grech said in an interview with The Malta Independent on Sunday that Prime Minister Robert Abela is still to approach him with a list of names.
Comodini Cachia was asked whether implementing an anti-deadlock mechanism for the appointment of the president, similar to what was implemented for the appointment of the Commissioner for Standards in Public Life, should be considered.
In response, she said that having a deadlock on the appointment of high-ranking public officers, who are fundamental to the working of our democracy, is cause for concern.
“The problem is that simply having a procedure and following that procedure is really abiding by a rule that was placed there. But that rule alone is not going to give you the democratic value that you need for that office to be what the country needs. If you look at the two-thirds majority rule... it tells you the criteria that the president must fulfil, it does not mention competence, it does not mention capability, it does not mention reputation.”
These values are not stipulated in the Constitution because they can be seen as being “constitutional common sense”, she said.
Weakening of Constitution
When speaking about the anti-deadlock mechanism for the appointment of the Standards Commissioner, she said that since this mechanism was made to appoint a person over whom there was no agreement, this automatically weakens the Constitution.
She said that the commissioner could be a very capable one, but they will always have that mark on them which says that an anti-deadlock mechanism had to be made specifically for their appointment.
“I believe that if we had to carry out that analysis even just from reading the positions that both the Prime Minister and the Opposition narrated in Parliament, you realise that what they were disagreeing on were unwritten constitutional common sense values.”
She said it would be a huge mistake to simply impose an anti-deadlock mechanism if the government and Opposition do not come to an agreement on a future president.
“I think, in these appointments and these procedures, our politicians tend to fail to distinguish when they need to distance themselves from party politics and move to State politics. State politics requires agreement proposal and agreement on people who are suitable for that role, and they are suitable not only because they fulfil the formal criteria the procedure establishes, but because they are competent, capable and their reputation will not tarnish that of Malta.”
“From the first time that we started listening to this proposal to get the Constitution amended, my reaction has always been, do we need to change the Constitution or do we need to change our politicians’ mentality?”
In the Constitution, she said that you can address the imbalance of power between the State entities, but you cannot write every “nitty-gritty rule and value that you must abide by”.
“I think that the problems we face as a country are more questions of how do we manage to change the political culture from partisan culture to a State political culture and that is not something you write in the Constitution.”
Why should the President be given more powers? Is it because the OPM is too strong?
Asked whether the President has enough power or whether they should be given more authority in certain aspects, Comodini Cachia noted that usually, this debate arises when the Office of the Prime Minister (OPM) is seen to have too much power.
“Once again if you look at the Constitution, the office of the prime minister is one of the most powerful offices in the country, but it depends on how you exercise that power. If you exercise that power in a way that gives you a capture of all the State institutions then that is a problem. But if you exercise that power in a way whereby you respect the independence of State institutions, then that is not going to raise many difficulties.”
Presidential powers can always change, she said, but what is most important is that the office of the president is run by someone who is capable of shouldering and exercising their powers.
“Are we speaking of giving the President more powers merely because we cannot trust the politicians appointed to the executive, including the OPM, to exercise their power in a democratic way and to abide by the rule of law? Because if that is why we're trying to shift power onto the President then I don't think we're solving the problem.”
Two-thirds majority vote is a ‘step in the right direction’, but not enough
Over the years the Prime Ministerial office has reduced its powers, especially with the introduction of the two-thirds majority vote requirement for a number of important appointments, such as the Chief Justice.
Comodini Cachia was asked whether the OPM was still too strong and whether it should be stripped of more powers. Once again she said that she understood the importance of having the right procedures in place to give more security to make sure that the person being appointed will be independent, however, this on its own is not enough to guarantee that the person appointed will be independent.
“Joseph Muscat and Labour used to, I think they still do, boast about having removed prescription for corruption. Where has that led us? With several allegations of corruption and abuse of power. With several magisterial inquiries, some of which even concluded that charges should be issued. With police investigations of which no one knows if they've concluded. How many prosecutions? And how many convictions have we seen?”
“A meaningful change requires a good law; a law that in itself objectively can bring about an independent appointment, a strong office and protect the independence, objectivity and impartiality of that office.”
Although the laws on paper prevent State capture, in reality, there have been an array of incidents which lead to one doubting whether having fulfilled the written procedure is enough, she noted.
“This is why I started saying you can have as many good laws as you want, and you should have good laws but the question is, ‘is there the political will to adopt State politics as opposed to partisan politics?’”
Pressed on whether the two-thirds majority vote was a step in the right direction because the person being appointed was getting backing from both ends, she said: “It is a step in the right direction because it is a procedure which aims at trying to give you a check and balance on appointments, but once again whoever is appointed cannot run away and say ‘I have the backing of both political parties’ and then lose all the spine that that person had.”
She pointed out how the appointment of the Ombudsman has had quite a good reputation and has done quite a good job. “That office has been consistently sticking to objective standards, international standards, independence and not being afraid to move waters.”
Pressed and asked what is the difference between the Ombudsman as opposed to other appointments, she said that it depends on the person.
She said that when someone is picked because they can be easily influenced, then the government is playing party politics and not State politics.
No change in party politics mentality
Asked whether she has noticed a change in mentality, she said: “No, it doesn't look like it and this is what is frustrating.”
When mentioning the recommendations of the Venice Commission she said that although Malta implemented some of these, which brought Malta closer to meeting international standards, this is still “not enough”.
“You can have as many rules as you want, but those rules need to be meaningful.”
“There was a point in our political history when we really didn't need to spell out these things because people who had political power understood that they had to abide by certain values.”
“When we speak of institutions and offices, we’re speaking of people. We have this mantra of saying the institutions are working or the institutions aren’t working. The institution isn’t a building, the institution are the people who run it and manage it.”
“So if we have, on paper, a law saying the authority is completely independent of the State, but then we appoint people who are directly chosen by politicians or by the Cabinet then that is a problem.”
A good whistle-blower act will keep appointees accountable
Considering the high number of publicly appointed officials, Comodini Cachia was asked whether there should be stricter procedures for their appointments to make sure they are independent.
“You should never require a two-thirds majority vote to appoint anyone who needs to be appointed to carry out a function which is executive and administrative. The two-thirds vote should be kept for the higher offices,” she said in response.
Instead, she said that these officials must follow certain underlying rules. That of “integrity, transparency, accountability, independence, impartiality, working for the common good, removing conflicts of interest, and so on”.
“In reality, what I've found in my experience is that there are people of integrity in every institution but there are equally people who do not have that integrity and there are equally people who are afraid of exercising that integrity.”
Moreover, she mentioned the importance of having a good whistle-blower act which Malta does not have at the moment. “This would give whistle-blowers a meaningful opportunity to blow the whistle when things are wrong. How am I going to keep this appointee accountable?”
What is the role of technocrats in Malta’s institutions?
As things stand with the Standards Committee formation, MPs are investigating colleagues.
Asked whether she had any ideas of how the formation of the committee could change, she said: “MPs’ investigation of colleagues is not a new concept, even if you look at the UK parliament we do have parliamentary inquiries that are undertaken”.
She mentioned how the Opposition, the OSCE and the former Commissioner for Standards in Public Life George Hyzler, all made some good proposals on how to change the formation and composition of the committee. However, nothing has been done with any of these reports.
“Change in composition can help strengthen or prevent any backsliding into what we have today. But in reality, it’s the values and the integrity of those people who sit on that committee that matters.”
Asked whether there should be a change in the formation of the Public Accounts Committee (PAC), she said that she is not averse to having a composition which includes representatives from the government and Opposition on the PAC.
Nevertheless, she added that one way to improve the composition of the PAC and institutions as a whole, would be to define the role of technocrats in all institutions. She believes that this is a question that has never been solved in this political environment.
The second part of the interview, which deals with the media, will be published tomorrow