[ANALYSIS] Joseph Muscat and the ‘second republic’: Redemption through legacy?

Prime Minister Joseph Muscat confirmed his exit from the Labour Party’s leadership last week: an exit before the next general election but without excluding calling a referendum on a mandate to change the Maltese Constitution.

Having committed himself not to lead Labour into the next general elections, Muscat may want to seal his legacy by embarking on widespread constitutional reform before the end of the current legislature. This may offer him the opportunity to exorcise the spectre of Panamagate and its toxic aftermath, and make up for the shortcomings it exposed under his tutelage by securing lasting institutional change that would affect future PMs.

But much depends on whether the proposed changes will limit the powers of the executive, by tightening checks and balances; or whether these will serve to strengthen its arm by moving further towards a presidential system of government.

Not contesting the next election puts Muscat at an advantage. Any limits on the powers of government brought about by constitutional reform will not affect him, but his successor.

The downside is that his early political exit may fuel speculation that any overhaul in institutions like the Presidency could well create a future vacancy for an outgoing leader still in the prime of his political career. In perfect Bonapartist spirit, Muscat’s ‘second republic’ could be a pretext for a ‘first empire’.

Embarking on constitutional reform in the next four years will raise the profile of the next President, still to be chosen by Muscat, especially if they are expected to bring the political parties together to discuss the changes.

For Muscat, constitutional reform offers an opportunity to deviate attention from current shortcomings in governance, to debate on a future blueprint which would have no bearing on this legislative cycle. He may well be sending the message that before exiting the political scene, he wants to set the house in order so that future governments would behave better than he did.

Divide and rule?

Talk of constitutional reform can give Muscat the opportunity to expose rifts between liberals and conservatives in the Opposition ranks on themes like removing the reference to Roman Catholicism as Malta’s religion in the Constitution.

It could also expose divisions between old and new Labour on themes like Malta’s constitutional neutrality. Adrian Delia’s first reaction to Saturday’s announcement was to shoot down the reform as one meant to “remove crucifixes from classes” and “send our children to war” instead of facing the serious issues “facing the country’s institutions and the rule of law”.

On neutrality Delia’s declaration signified a radical change from Busuttil’s stance in favour of rewriting the clause. His defence of neutrality, coupled with his social conservative stance may signal a realignment to appeal to both old Labour and the social conservative right wing.

The question of when and how

Yet for Muscat the major problem is that the country has still to agree on the method on how to arrive at constitutional reform, let alone on the content of the proposed changes.

Although both major parties have signalled agreement on convening a constitutional convention in their respective electoral programmes, it is unclear how the members of the convention will be chosen.

And it is unclear whether a referendum on constitutional reform will be held before or after consensus is reached in parliament on the reforms proposed. Any referendum on a draft opposed by the Opposition, raises the spectre of reform by plebiscite.

One major question is whether this referendum will complement a previous two-thirds majority in parliament or whether it will take place before a final vote in parliament.

If the latter will be the case, approval by say 55% of the electorate would be used as moral pressure on MPs to secure the necessary two-thirds majority in parliament. This would be a replica of the aftermath of the divorce referendum which saw MPs dithering on whether to vote according to qualms of their conscience or respect the mandate. But the introduction of divorce came after a referendum which resolved a single issue on which both parties lacked an electoral mandate for; changing the Constitution involves changing the very rules for our democracy, and changing them in the absence of a wide consensus could set a dangerous precedent.

On the other hand, expecting consensus on every change proposed may well result in paralysis. And since both parties provided no clear blueprint on constitutional reform in their electoral programmes, a referendum may be the only way of securing a mandate for constitutional reform.

But even this raises the prospect of a referendum on a combo of unrelated proposals ranging from neutrality to institutional checks and balances, on which the electorate would be asked to pronounce itself through a generic yes or no. One risk is that voters would end up voting along partisan lines, especially if the referendum is held in tandem with a national election. Last October, Delia has proposed approval by referendum in next year’s elections for the European Parliament. Muscat hinted at a longer time-frame, while agreeing with a referendum.

What mandate do the parties have?

The present government has an electoral mandate to convene a convention to reform the Constitution and give birth to the so-called second republic. The PN also made the same promise in its electoral programme. But beyond this joint commitment, both parties are heading towards uncharted territory.

Of the two main parties represented in parliament it is only the PN which made proposals with regards to the appointment of the highest offices of the state, including the President of the Republic and the police commissioner, proposing they be appointed after securing a two-thirds majority in a first vote and a simple majority in a third vote if consensus is not reached.

The most tangible proposal from Labour’s manifesto is the creation of a constitutional mechanism to remove errant MPs and public officials, a recall mechanism which may have saved the country much trouble had this reform been in place at the time of the Panama Papers revelations.

But in what suggests a reluctance to loosen the grip of government on supposedly independent institutions, Labour’s manifesto claimed that the existing Constitution already “guarantees checks and balances necessary to safeguard the interests of the people and for the country to function as a modern democracy”.

It is in this context that Labour reiterates its commitment to “strengthen the institutions”.

What is significant is that the PL’s manifesto vaguely refers to the advent of a “second republic”, a term normally reserved to an overhaul in the division of powers. So far Muscat has not hinted at any such overhaul. Indeed his examples have been limited to a revision of the neutrality clause and the position of the Catholic church in Malta.

In Italy, the advent of the second republic after the ‘bribesville’ Tangentopoli scandal signified an attempt to move towards a bipartisan electoral system. In France, the fifth republic saw the consolidation of the office of the President, personified at the time by war hero Charles De Gaulle, turning the country from a parliamentary democracy like Malta to a semi-presidential one. France is an example of how liberal democratic institutions can co-exist with a stronger presidency. On the other hand, plebiscites have also been used in more authoritarian countries like Turkey to strengthen the presidency and weaken parliamentary democracy.

The Icelandic model

A role model for Malta could be Iceland, where the constitutional debate was crowd-sourced and delegated to a democratically elected but non-partisan assembly.

It is difficult to envision a similar thing happening in highly partisan Malta, where even school council elections are monopolised by proxies of both major parties. But the Icelandic model could offer some insights on constitutional change driven by civil society.

It was the collapse of banks in 2009 which saw thousands of Icelanders taking to the streets, demanding constitutional change which led to the passing of a parliamentary statute to guide the process of reform. Next was the convening of a randomly drawn group of 950 citizens to generate ideas for constitutional reform. Then, in the fall of 2010, 25 ordinary Icelanders were elected from a field of over 500 to serve on a constitutional council that would formulate a new constitution.

Icelanders were able to follow the council’s decisions and contribute suggestions through a Facebook page. This led an iterated process of drafts and comments, which led to changes in the proposed draft. The final draft greatly expanded direct democracy, allowing the public to be involved in ongoing governance.

The draft also decreed the country’s natural resources to be the property of the state. This provision sought to effectively reverse the country’s privatisation of fishing licences in the early 1990s. The draft was approved by a two-thirds majority in a consultative referendum in October 2012. But the reform failed to pass the two next hurdles, approval by parliaments in two successive legislatures.