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Giving value to the Presidency

The Constitution establishes the Office of President. The President and the House of Representatives compose Parliament. The President is also the head of the executive (government) and chairman of the Commission for the Administration of Justice. He also carries out other duties established by law or by administrative decision. Some of his duties have been inherited from colonial times.

 

The President is appointed by resolution of the House of Representatives and is not elected. S/he is also removed by resolution of the House. A simple majority of MPs is sufficient to appoint and remove a President. Not even a vote of two-thirds or an absolute majority of MPs is required to appoint or remove a President. The person occupying the highest office of the land is at the mercy of Government as this office does not enjoy any security of tenure. S/he exercises the vast majority of powers on the basis of binding advice given by his or her government and it is only in very few exceptional cases that s/he acts on his/her own initiative. The President is the guardian of the Constitution but does not have the necessary powers to carry out such role except by trying to persuade the actors involved. On the other hand, s/he enjoys considerable moral authority and is a unifying factor in Maltese society.

 

The powers of the President as contained in the Constitution are limited. If the present cabinet government system is retained, then the office of President should be reformed. The President should, in conformity with the doctrine of the separation of powers, eradicate him/herself only in one organ of the state – the Executive. First, the President should not sign bills into law. Such legislative function should instead be devolved upon the Speaker. In this way, the President will no longer form part of the legislative branch of the state. Second, the President should not chair the Commission for the Administration of Justice, more so that the Commission may be called upon by the Government to give its advice on the appointment of a member of the judiciary who eventually ends up being appointed by the President even if on the advice of the Prime Minister. Furthermore, the House of Representatives may call upon him or her to remove from office a member of the judiciary. Third, the President’s functions should be limited only to one organ of the state – the Executive. As head of the Executive, the President should be given more powers to exercise on his/her own initiative. S/he should chair a consultative Council of State and appoint all Constitutional Commissions and the Broadcasting Authority following a nationwide consultative process where s/he discusses proposed appointments with the proposed Council of State, the Prime Minister, the Leader of Opposition, political parties, constituted bodies and the voluntary sector. All appointments should be made in the national interest and not in the interest of the party in government or opposition and the main criteria to be adopted for such appointments should be merit, integrity and competence. This would ensure that members of the said Commissions/Authority will not be appointed on the basis of loyalty to the political party in government or in opposition but loyalty to the State of Malta and its people. Their appointment should be renewable once only.

 

The President should be appointed by at least a two-thirds majority vote of the members of the House of Representatives and should be removed also in the same manner. Should the House not agree on a person to occupy that office within a week from the day that the office of President becomes vacant, the proposed Council of State should appoint an Acting President from amongst past Presidents or one of its members should there be no past President willing to take up the Presidency. Once the House agrees on the appointment of a President of Malta the Acting President will vacate office. If the House takes more than three months to make such appointment, then it will forfeit its authority to make such appointment and the Acting President will take over the office of President until the term of office in terms of the Constitution comes to an automatic end, thereby ensuring an uninterrupted period of time in office.

 

The President of Malta is currently appointed for one term of five years. Consideration should be given to the possibility of renewing the President’s term of office for a further term of five years. There is indeed nothing new in this proposal as it already applies to the Ombudsman whose term can be extended by a second term of office. This has worked well with regard to the Ombudsman. Both Mr. Joseph Sammut and Chief Justice Emeritus Joseph Said Pullicino have had their term of office extended for a second term and both have done a good job. Should this provision not apply to the President of Malta as well?

 

There are quite a number of functions which the President’s office has inherited from colonial times which are more appropriate to be exercised by a Minister of Government. Such is the case, for instance, where the President authorises land expropriation. Such function should devolve on the competent Minister or Cabinet. As much as possible, the President should not be involved in the day to day administration of the country. The Government should fulfil this task.

 

Different Presidents have given the Presidency their own mark. Some have brought the presidency more in touch with the people or with civil society. Others have kept their distance from the people choosing to carry out their duties without taking any proactive initiatives. Some Presidents have emphasised certain of their functions whilst others have stressed others. In this respect there needs to be a clear line of demarcation between the office of President and that of other offices of the state. The handful of provisions in the Constitution which regulate the office of President need to be rethought so that this office is made more relevant to Maltese society. A Constitutional convention should be appointed to revisit the provisions of the Constitution in a systematic and holistic manner, including also the provisions regulating the office of President of Malta.

 

This article first appeared in the Times of Malta

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