The Malta Independent 18 July 2026, Saturday
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An amalgamation of powers

Mark Said Sunday, 2 March 2025, 07:25 Last update: about 2 years ago

Separating the executive from the legislature and the judiciary safeguards democracy and is the hallmark of a society governed by the rule of law. Yet, recent examples of subtle and legislative-enforced power grabbing by the government, as well as attacks on the very mechanisms and institutions that seek to hold government conduct to account, are putting this in jeopardy in our country.

At a time when our constitutionalism is under serious threat of being dismantled step by step by an unscrupulous government, one would expect the President of the Republic, as guardian of that same constitution, to spring into action and intervene to restore the separation of powers and ensure the full observance of the constitution.

The main constitutional mechanism for assuring good governance is democratic accountability through elections. Dependence on the people is, no doubt, the primary control on the government.

When it works properly, it is expected to produce good government through the installation in power of good rulers who will rule for the common benefit of all. Such a democratic system as ours should thus produce a chosen body of citizens whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

However, such a primary system may fail, and the effect may be inverted. And this is exactly what has been happening in Malta. In light of a resounding electoral victory in 2013, followed by two other impressive victories, a government was elected made up of politicians of factious tempers, of local prejudices, or of sinister designs, who first obtained the suffrages and then betrayed the interests of the people.

This is why our Constitution contains, in addition to the primary mechanisms of democratic accountability, a set of backup systems designed to limit the ability of bad rulers to do serious harm to the public good. One such backup system is precisely the separation of powers, in particular, an independent judiciary.

That backup system cannot depend for its success on political actors complying with constitutional norms, for the very situations in which it is called upon to operate are those in which the actors in question are, by hypothesis, willing to violate prevailing constitutional norms, as, in fact, has been happening over the years with this government.

Take what has been happening in parliament. Our parliamentary system of government envisages administrative accountability to parliament, which means general political control over government. Parliament derives its power to control the executive from the Constitution.

Still, there has been much talk of the diminishing role of parliament and the increased power of the executive in the current political approach. PM's question time is inexistent, co-opted MPs seem to be the order of the day, and a Speaker chosen by a simple majority, who used to militate within the Labour Party and is perceived to side with the government's approach most of the time, risks rendering the House of Representatives irrelevant.

Political interference with civil servants has been evident to the point of rewarding them by promising to enact a law that affords them blanket impunity from criminal prosecution, and debate has been substituted with control.

Parliament does not govern and is not intended to govern. A strong executive government, tempered and controlled by constant, vigilant and representative criticism, is the ideal at which institutions aim. The Constitution of Malta amply fulfils this ideal.

To a greater degree, parliament is becoming the government majority, and the government majority of subservient MPs therein is a rubber stamp for the government. It is often felt that more than parliament controlling the executive, it is the other way around.

Horizontal accountability is continuously being eroded as the counterbalancing of state institutions like parliament, independent judiciary, and other constitutional watchdogs can no longer be discerned.

The government hardly heeds or implements the recommendations and findings of the ombudsman; the police commissioner is more of a government lackey, with the attorney general following suit and a state advocate subject to the prime minister's whims. We have a standards commissioner in place who couldn't be more lenient when sanctioning breaches of expected standards in public life and an auditor general whose highlighting of maladministration is mostly left by the wayside.

The Public Appointments Committee, too, has become a rubber stamp for confirming pro-government candidates to occupy high-profile, sensitive and pivotal positions. The Public Accounts Committee, despite being chaired by a PN MP, is most of the time stultified by the subterfuges of the Labour MPs sitting on that committee.

Of course, the latest legislative move through Bill No. 125, supposedly meant to reform how magisterial inquiries may be requested by private citizens, has, in reality, the aim of further minimising governmental accountability.

All these trends indicate a marked deterioration in the guardrail for integrity and standards governing our constitutionally based system in recent years. What this shows is there's a challenge to a system that's meant to be based on goodwill and people morally agreeing to play by the rules.

It all points to a wider institutional malaise in Malta's current political system that is eroding public trust both in democracy and in standards in public life.

A government interested in power is apt to abuse it and to carry its authority as far as it will go. The end result will be that power corrupts, and absolute power corrupts absolutely.

 

Dr Mark Said is a lawyer


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