07 May 2013 Riforma Kostituzzjonali (5) – The Times Tuesday, February 28, 2012 – Ministerial Responsibility
Tuesday, February 28, 2012
Personal liability of ministers ‘should be in the Constitution’
The Chairman of the Select Committee on the Re-codification and Consolidation of Laws, Franco Debono, said that the provision for individual ministerial responsibility should be included in the Constitution.
This was so that ministers would have no alternative but to resign when they lose a no-confidence vote in Parliament.
He said that this should be done so that neither the government of the day nor the civil service would be embarrassed.
Dr Debono was presiding a meeting of the committee during which lecturer in Constitutional Law Dr Austin Bencini and Dr Edward Zammit Lewis, together with the Dean of the Faculty of Law Professor Kevin Aquilina, give their input. The committee was discussing the need of Constitutional amendments on individual ministerial responsibility.
Dr Francis Zammit Dimech (PN) said that he knew of no case where a minister did not resign after a no-confidence vote. On a legal level, however, he agreed on a constitutional amendment so that a no-confidence vote in a minister would lead to resignation.
Dr José Herrera (PL) said that when one is a public officer, one should enjoy immunity from personal responsibility. Ministers should always carry political responsibility. Maltese civil and criminal law provided for personal action against any public official, including a minister in cases of “dolus” where the official intentionally took wrong decisions.
Dr Bencini agreed that this was the classic example of constitutional amendments which reflected procedures.
Dr Zammit Lewis noted that there was no constitutional mechanism to guarantee that a minister would have to resign after a no-confidence vote.
Dr Zammit Dimech said that a minister’s resignation from office should remain a political choice and not defined in legal terms.
Dr Debono and Dr Herrera both said that the time was ripe for the President to be invested with more powers to reflect his position as guardian of the Constitution.
Dr Debono said President George Abela had taken the initiative of being a catalyst in constitutional reform.
He said that the appointment of the President should be by a two-thirds majority and where this was not achieved it would then be determined by an absolute majority.
Dr Zammit Dimech also spoke on the need of the Standing Orders being reviewed and to also include the possibility for MPs to correct their vote during the sitting.
Earlier, Dr Bencini remarked that the committee was handling more than the re-codification of laws. It was redefining Malta’s public law. The code reflected sections in the Constitution dealing with ministerial responsibility and removal of judges.
Professor Aquilina presented the committee with laws and reports on the composition and function of Judicial Appointments Boards in Scotland and in EU states. Dr Debono remarked that the Scottish model was similar to Malta’s system and could be fine-tuned for the country’s needs.
Dr Herrera said that judicial appointments should not be the responsibility of the Commission for the Administration of Justice. He said the government was not obliged to take advice on judicial appointments from the commission.
Dr Zammit Lewis said the members of the board could be appointed from former judges and magistrates. The members of the committee agreed in principle with such a board.
Professor Aquilina said he was a member of the Judicial Studies Committee which applied a mentoring system and was responsible for the training of new magistrates. Dr Franco Debono said that a formal structure for training should be set up.
The committee also referred to cases where the Constitutional Court nullified laws. Both Dr Herrera and Dr Zammit Dimech said one had to distinguish between cases where the nullification of a law was restricted to the case decided from others that had a wider effect.
Dr Bencini suggested that the administrative code should include procedures to be followed when a law was declared unconstituitional.