Occasions when the president has to take decisions without instructions from the prime minister are rare. Our president acts in place of the Queen of England. And the Queen of England can only take initiatives on her own personal affairs and not without restrictions in that case anyway.
But our constitution expects the president to act when a leader of opposition loses the support of his group. And in this one thing, rare as it is, the advice of the prime minister is intentionally excluded because logically the prime minister would choose as the leader of the MPs whose job it is to oppose him, the weakest, most compromised and least likely MP willing to put up any sort of resistance to him.
In other words, if George Vella were to ask Robert Abela whom he’d like to be leader of opposition, he’d pick Adrian Delia.
This podcast is less about the specific Adrian Delia situation and more about how the president is acting in the rare circumstance when he’s needed to be more than a rubber-stamp; where there needs to be what Times of Malta described this morning as his “verdict”.
It is more than a mere academic question. Because thanks to a bill in front of parliament right now the occasions when the president will need to be taking decisions without the benefit of the prime minister’s advice will increase. He will be choosing judges from short-lists given to him by a selection committee.
You would think that power does not concern you too much. But the reason this bill is being debated at all is that we have learnt that the manner in which judges used to be appointed allowed Joseph Muscat to capture the judiciary, to build this mafia state in which we live and to breed the corruption and the rot that has cost us so much, including the life of a journalist.
So fixing that is rather important, would you not say?
The whole point was about getting someone else rather than Joseph Muscat and his successors to choose the judges that could sit in judgement of their actions in the executive branch.
What is the Adrian Delia situation teaching us about the president’s ability to act independently of the prime minister?
I observe three things right now.
First: that the institution of the presidency is poorly equipped to take decisions of this scale. The president has the benefit of a small team of advisors none of which have been recruited for their legal, institutional or constitutional expertise. That makes sense because the president normally doesn’t do any of that. The president needs people who understand protocol, can put together a state dinner at short notice and can help raise funds for the chest fund.
This means that the president has little internal infrastructure to lean on to prepare him for decisions of national import such as appointing leaders of opposition in a parliamentary crisis or choosing a judge from a shortlist.
The president right now is presumably calling up lawyers in private practice or, God forbid, getting the advice of the Attorney General, another captured institution slavishly serving the interests of Robert Abela.
It seems clear that either we’re going to spend the money to equip the president with a shadow executive set-up (which I think is a bit of a waste) or at least support the presidency with a Council of State – a group of elders, typically former presidents, prime ministers, chief justices, parliamentary speakers, that sort of thing – that he can officially and formally turn to for advice.
Second: that if the president is going to be an autonomous agent of the state, taking decisions and issuing “verdicts”, we need to start getting used to submitting his decisions to independent review. If a prime minister takes a decision or undertakes some action, anyone effected by it has the right to go to court to contest it. Similarly, if parliament passes a law, anyone can challenge that law’s compliance with the constitution in a court of law. And similarly, again every decision taken by any court except the very highest is subject to appeal and review by a higher court.
It makes sense. Everyone can make mistakes. Anyone can misread the law or the constitution and, intentionally or not, act outside it. The president will need to be ready to defend his decisions in a court of law and we will need to be ready to get used to that.
Consider the current scenario. If the president is meant to appoint Therese Comodini Cachia as leader of opposition in line with the reading of the constitution that three experts produced yesterday, and doesn’t because he chooses to follow a different reading of the constitution that tells him he should retain Adrian Delia, then surely that can’t be the last word on the subject. Surely if the president has the power to hand down a verdict, there must be somewhere where someone else gets to think again whether that verdict was in line with the law.
Third: that the suspicion will remain that a president appointed by the prime minister will be tempted or conditioned to act at his pleasure and in his interest. There clearly is a benefit for the Labour Party for a decision that retains Adrian Delia and dismisses Therese Comodini Cachia. There is a partisan, political benefit for the president to proceed along the self-serving legal argument given to him by Adrian Delia rather than the legal arguments that point to his removal.
What will a president who served his entire life in the Labour Party, was its deputy leader and was appointed to the office by the current leader, do? Of course George Vella was appointed by Joseph Muscat, not by Robert Abela. But let’s entertain the notion of continuity for the sake of argument.
Consider that George Vella has no institutional set-up to advise him (and he therefore has no one to over-rule or ignore) and when a proper, independent review of his decision is unlikely if not near impossible.
Like the judge hand-picked by the prime minister, the president hand-picked by the prime minister may end up feeling obliged to act in the interest of that prime minister. But even if they were to act according to their conscience, it will be impossible for the public to perceive a president appointed in this manner as acting independently of the government of the day.
This transfers the question about the manner of appointing judges to the question about the manner of appointing presidents. Right now, the position is in the gift of the prime minister, not unlike the way the prime minister gets to choose his chauffeur.
There’s another bill in parliament changing that.
But that’s a farce. The bill requires the nominee for the presidency to be chosen by at least two-thirds of parliament. But if the government’s candidate fails that test twice in a row, the government still has the right to appoint its candidate anyway.
In the meantime, of course, George Vella was not appointed by the system still to be introduced. He was handpicked by Joseph Muscat. How will he act on the Adrian Delia question? Will we continue to see Joseph Muscat’s capture of our institutions work in the interests of the Labour Party?
Our democracy is heading south.