07 Nov 2019
Verdala Palace, Buskett, Malta

Dr George Hyzler, Commissioner for Standards in Public Life, is proposing changes to the Constitution to strengthen the independence of Parliament and the judiciary, and to reinforce the principle of merit in appointments within public administration.

The Commissioner’s proposals are set out in a 138-page report which he has presented to the President of Malta in response to the President’s call for submissions on constitutional reform. The report has been written by Dr Hyzler together with the Director General in his office, Charles Polidano.

Among other things the report proposes that members of Parliament should be disqualified from the House of Representatives if they accept contracts of any kind from the government or public entities. Similarly, MPs should not be allowed to accept appointments as persons of trust or as members of government boards and committees.

As the report says, “Democratic principles require that Parliament should be capable of holding the government to account, but Parliament cannot fulfil this role effectively if backbench MPs are financially dependent on the government.”

The report proposes that judges and magistrates should be selected on merit following public calls for expressions of interest to fill specific vacancies in the judiciary. This would ensure that the best person for each vacancy is appointed. The government should retain its current power to overrule the selection process in exceptional instances, but it should publicise and justify any such cases.

The report notes that the present system of judicial appointments was reformed in 2016, but it still gives the government of the day too much discretion. “Even worse from the point of view of judicial independence, promotions within the judiciary – from magistrate to judge and from judge to Chief Justice – remain entirely at the discretion of the government.”

The report also proposes that the Constitution should permit appointments on trust, but only in ministers’ secretariats. Appointments elsewhere in public administration should as a general rule be made on merit. The Public Service Commission should be empowered to enforce the merit principle throughout public administration, not only in the Public Service as is currently the case.

At present the Auditor General, the Ombudsman and the Commissioner for Standards himself are appointed by the President on the basis of a parliamentary resolution supported by at least two thirds of MPs. The same mechanism should be used to appoint the chairpersons of the Public Service Commission and other constitutional commissions, as well as the heads of the Armed Forces, the Police and the Security Service.

Permanent Secretaries, who are the most senior officials in ministries, should be appointed by the President on the basis of merit, but the Prime Minister should have the right to object to any particular appointment. If the President accepts the Prime Minister’s objection another selection process would be held to fill the post in question. This system is based on that used to select top civil servants in the United Kingdom and New Zealand.

The aim of these proposals is to strengthen the checks and balances through which Maltese governments are held to account for their actions, yet without impeding their ability to govern.

The report includes draft amendments to the Constitution that are based on these proposals.

The report can be downloaded from here.

Photo: Verdala Palace at Buskett, the official summer residence of the President of Malta.