Opinion: What type of Second Republic? – Kevin Aquilina





Question time of April 30, 2016 was entitled ‘Constitutional Supremacy: Is there need for a Second Republic?’ This question was surely answered by Professor Ray Mangion, Lawyer and Historian.

Now that the general election came and passed by, what is relevant is what government understands by a ‘Second Republic’. I am sure that what government and opposition comprehend by that term might not necessarily agree with my own interpretation.

One of the Labour Party’s electoral pledges contained in the electoral programme L-Aqwa Żmien Ta’ Pajjiżna (The Best Time for our Country) distributed in households during the electoral campaign states that, in government, the Labour Party will amend the Constitution through the addition of a new provision that transfers power from the politician to the Constitution in those serious cases that may involve Members of Parliament and/or persons holding high public office.

This proposal is certainly couched in principle and one will have to see which powers are to be transferred, which are those serious cases which merit the taking of the above action and what action will be taken. Ray Mangion gives more flesh to this constitutional proposal to check political corruption in the above-mentioned piece and one understands that the PL’s well-prepared electoral manifesto is mirroring his proposal which runs as follows:

‘… the Constitution does not mention “liability” of any representative of the people at the helm of a portfolio’. There should therefore be introduced ‘a mechanism that would ipso facto suspend the elected member of the government concerned in case he prima facie breaches an express list of criteria’.

This electoral proposal, if and when implemented, is a move in the right direction to ensure not only ministerial responsibility but accountability of all MPs and heads of departments. But a second republic should not just simply look at this aspect. Raymond Mangion identifies others in relation to human rights, particularly citizens’ rights in which the PL apparently found also an inspiration while fashioning their manifesto.

These and others are ingredients which a Second Republic should surely adequately address.

Yet there is no doubt that my conception of a Second Republic differs contrastingly from that of the two main political parties in the House. I do not see the Second Republic as a codification of unconstitutional practices which both parties in government have developed since independence to subvert the Constitution ranging from appointing persons of trust to apportioning amongst themselves the membership of the constitutional commissions and the Broadcasting Authority, the dishing out of direct orders to sympathisers and filling public offices of state on a strictly partisan basis. Nor would it be one where the doctrine of ministerial responsibility is changed into one of ministerial irresponsibility where one Minister covers the back of the other whenever a motion of no confidence in a Minister is tabled in the House even where it is clear that the Minister concerned acted incompetently.

The way that I see a second republic developing is that the Constitution is respected to the letter, the rule of law becomes the norm not the exception, offices of state are filled by the most capable and meritorious, direct orders are approved by the Public Accounts Committee only following a positive recommendation to that effect by the Auditor General, new legislation is subjected to a human rights impact assessment, and, generally, the citizen is involved in the approval of the constitution establishing the second republic and it is not imposed from above as all amendments made to the Constitution have always been approved since 1964.

 

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta

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