Category: Constitutional Development

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Constitutional Development Politics

The Powers of a President

Jeffrey Pullicino Orlando has been quoted by Malta today saying that “the President of the Republic would be justified in calling the Prime Minister to see if he has a majority after Franco Debono’s comments.” (see also on Maltastar). Well he wouldn’t. The President of the Republic need not take any such initiative because it is not up to him to do so. Our Constitution (God Bless the Paper it is written on) is quite clear about when the President may intervene with regards to the Prime Minister (and the leader of the opposition).

The Constitution

Everybody knows that the President appoints the member of the House who in his (the President’s) judgement is best able to command a majority of the members of that house. That situation arises “Whenever there shall be an occasion for the appointment of a Prime Minister” (article 80). On the other hand the Constitution is quite clear about the removal of the Prime Minister (article 81) and it that case it specifies quite clearly that this occurs: “If the House of Representatives passes a resolution, supported by the votes of a majority of all the members thereof, that it has no confidence in the Government, the President may remove the Prime Minister from office“.

You see Jeffrey. It is not up to the President to decide whether the PM still enjoys the support of the majority of members of the House. It is up to the House voting on a clear no confidence motion to do so. Had the drafters of our Constitution wanted to give the President the power to constantly use his own judgement – and not that of the House – in order to assess whether the PM commands a majority then we would have had an article similar to article 90(4):

90 (4) If, in the judgement of the President, a member of the House of Representatives other than the Leader of the Opposition, has become the Leader in the House of the opposition party having the greatest numerical strength in the House or, as the case may be, the Leader of the Opposition has ceased to command the support of the largest single group of members in opposition to Government, the President shall revoke the appointment of the Leader of the Opposition.

The constitutional provisions have already been ignored once in the Richard Cachia Caruana motion and procedures (article 111 in particular). We cannot afford to have politicians continue to ride roughshod on the constitution, observing only the parts of the law that are convenient to them. Abela’s mission in Peru is safe for now.

Punditry Revisited

I am led to believe that some observes sill imagine an extension of the life of this government beyond the reopening of parliament after recess ends. I disagree. The summer break is a reprieve and a chance for the PN to put its house in order. An election cannot be too long in the waiting once the summer break ends – if only for the simple obvious reason that one of either JPO and Debono will be prepared to vote against the government in a crucial confidence motion.

Whether Lawrence Gonzi is prepared to call their bluff – if only to let the blame of the end of government to fall squarely on their shoulders – is a matter of electoral brinkmanship. What we can say for certain is that this kind of midsummer rumbling is a prelude to the silence before the storm. Expect that silence to occur mid-August and the storm to hit you with a vengeance around September (if you’re still around and haven’t melted in the heat).

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Constitutional Development

Ordinary Salaries & Extraordinary People

Labour’s latest rant about Richard Cachia Caruana and his salarial status within the government structures has provided the world with proof, if any was needed, that the PL still sits uncomfortably with its usurpation of parliamentary power for a very private lynching affair. Following a statement by the Labour communications office we read the following comment by the unnecessarily anonymous “Labour Party Spokesman” (best not be able to identify who is behind the latest excuse for politicking):

“Can the Prime Minister explain which civil servant takes a terminal benefit and transitional facility,” a Labour party spokesperson told MaltaToday. “This is proof that Cachia Caruana was not just any civil servant but is the equivalent of a minister. Labour is right when saying Cachia Caruana is accountable to the scrutiny of parliament, because he is not a civil servant like the others.”

The telling bit is the last sentence. Labour (or in any case its anonymous spokesperson) is painfully trying to square the circle of “accountability of civil servants”. The motion presented in parliament by Luciano Busuttil et al flew in the face of all parliamentary convention and practice. Labour would love to seem to be partisans of the doctrine of parliamentary sovereignty and have gone to great lengths to sing to the tune of “strengthening democracy’s greatest institution”. When push comes to shove though, political expediency easily trumps parliamentary convention.

On the law

Our constitutional system is a hybrid one. We do not have the “historic” unwritten constitution in Diceyan terms and questions of supremacy are (currently) controversially divided between the written constitution and parliament. What we definitely have inherited from UK jurisprudence is the system of parliamentary conventions. In Dicey’s words:

“(A) set of rules (that) consists of conventions, understandings, habits or practices which, though they may regulate the conduct of… officials, are not in reality laws at all since they are not enforced by the courts”. (The Law of the Constitution)

Among those conventions is that of “ministerial responsibility” that can be both “individual” or “collective”. The modern form of ministerial responsibility is based on two ports – (1) a minister’s political or administrative competence, (2) a minister’s personal morality. The original application of the competence rule held ministers answerable to Parliament for every action undertaken by their department’s civil servants. Ministers took credit for civil servants’ achievements and were expected to resign for any grave errors committed by their staff. The corollary to this is that individual civil servants would not face parliamentary scrutiny or public criticism for their own failures.

In time the expanding nature of government administration led to an adaptation of this conventional rule. The effect of this adaptation was not however that of bringing civil servants within the ambit of parliamentary scrutiny but rather the additional requirement of proof: that a Minister was aware of the or personally involved in a particular decision before being forced to resign.

On the person

In the Cachia Caruana case (can we call it parliamentary impeachment or would that risk opening another can of legal worms?) we clearly have a bypass of the convention of Ministerial responsibility. Parliament dragged a civil servant (ordinary or extraordinary is irrelevant) before it and proceeded to vote. Even if we set aside the fact that the actual accusation was never proved (the Wikileaks accusation did not, if you pardon the pun, hold water) and that the vote was carried merely in Sicilian vendetta style we are still left with an even more important consideration. The Labour party motion blatantly ignored all forms of parliamentary convention for the sake of political expediency.

We now have the baying hounds drawing attention to Richard Cachia Caruana’s remuneration. Forget the return of Maltese relativism for a moment. The issue is much more serious constitutionally speaking. The current trend among the Labour party is to highlight their dedication to the real constitution – the real parliament they say, not the multi-million building in Valletta. They have shot tirade upon tirade at the party in government for supposedly diminishing the role of parliament. When it came to turning the parliament into a vehicle of political expedience the very same Labour party had no qualms but to ride roughshod over any semblance of parliamentary convention. It did not even bother to pretend.

The afterthought has led to a sort of backtracking. It is now crucial for Labour to try to prove that RCC was a kind of Minister – not a civil servant. It is crucial because that way they think that they would save their face. What they are actually doing is providing further proof that their knee-jerk activity acting as a second-fiddle to Franco and JPO.

Then again what do you expect from a party that seems to be determined to introduce the very progressive system of government by facebook?

 

Categories
Constitutional Development

The Evils of a Party System

Albert Venn Dicey Vinerian Professor of English Law at the University of Oxford in the 1880s authored one of the classics on the British constitutional system entitled “Introduction to the Study of the Law of the Constitution”. Dicey’s groundwork on English constitutional history and principles may be described as legendary. In this post I would like to summarise/list part of an unpublished lecture by Dicey that was prepared in July 1898 – in the hope of provoking a discussion on the merits and demerits of the UK party system as inherited by us in Malta.

The lecture was called “Memorandum on Party Government” and he deals with the pros and cons of the party political system as developed within the British constitutional structure.

In section C of this lecture he outlines the “Inherent Demerits of Party System” as follows:

1. It makes impossible consideration of measures on merits.

2. An Opposition which cannot carry out its own policy maims & renders abortive the policy of the Government.

3. The Party system involves a waste of capacity.

4. The Party system leads to an exaggeration of the points on which the whole of one party, e.g. the Tories, are supposed to agree & to be opposed to the whole of their opponents, e.g. the Whigs.

“(…) it is still true that the party system intensifies the tendency of politicians & their followers to look upon their own side as the party of the good, & upon the opposite side as the faction of bad men, whence, among other evils, results the sort of political hypocrisy which leads men of sense & merit to overlook or palliate the decline in moral principle of a party which they have at one time held, perhaps rightly, to represent public virtue.

The patent evils, in short, of the Party system, even at its best, are that it presents men from considering measure on their own merits, that it produces the kind of vicious compromise by which an opposition maims a policy which it cannot resist, that it involves a waste of political capacity, that it exaggerates the differences which divide one party from another & promotes the idea which is often false, & at best only partially true, that one party in the State has a monopoly of public virtue.”

In the next section (D) Dicey expounds “The Conditions Necessary for the Beneficial Action of the Party System” and he divides them into four broad conditions, namely:

1. All parties in the State must be loyal to the Constitution.

2. The distinction between the two parties in the State must depend upon real differences of principle.

3. Parties must not be kept together mainly by personal interest.

4. There must if possible exist only two important parties.

5. The nation must take a real interest in Politics.

And what happens when these conditions fail? Well here is Dicey’s answer:

“(…) all these evils may be summed up under one head whenever they exist they mean that parties are degenerating into factions, that is to say that they have become or are becoming, bodies of men not bound together by community of principles but either by self interest or by the feelings of partisanship“.

Finally Dicey also suggests two obvious ways of mitigating the negative effects of the party system:

1. The judicial & administrative bodies of the country should be kept as far as possible from the sphere of the Party.

2. Large questions of general policy should whenever possible be so determined that they may be placed outside the realm of the party.