President should choose Ombudsman when parliament fails to reach consensus – Anthony Mifsud

Ombudsman Anthony Mifsud has repeated his call for the introduction of an anti-deadlock mechanism when parliament cannot reach consensus on constitutional appointments.

In his annual report for 2021, tabled in parliament on Tuesday, Mifsud reflected on his own term, which was supposed to end in March last year. However, since no agreement has been reached so far between the government and Opposition on a replacement, Mifsud has had to remain in office.

The appointment of the Ombudsman, like that of the Auditor General and Standards Commissioner, is by two-thirds parliamentary majority. This means cross-party consensus is required. However, the Constitution does not have an anti-deadlock mechanism which kicks in when the required majority is not found after a stipulated period.

Mifsud said in his introduction to the annual report that when parliament fails to approve a resolution by the required qualified majority, the decision should be referred to the President “who shall act in his own deliberate judgement”.

“This proposal has today taken on additional constitutional significance following the recent amendments requiring that the President himself has to be appointed following a resolution that enjoys the qualified majority of two thirds of the Members of Parliament. A constitutional provision that even if indirectly, has bestowed on the Office of the President a measure of popular mandate further distancing his Office from partisan politics,” Mifsud said.

He added that such a radical stand would also be a step in the direction of the recommendations made by the Venice Commission that the time has come for a review of the President’s functions to include roles that he should carry out independently from government and not on the advice of the Prime Minister.

“It would enhance the authority of his Office as guardian of the Constitution and of the integrity and independence of Malta’s institutions,” Mifsud said.

He also reiterated a previous proposal for the setting up of a Council of State that would have as one of its functions the role to advise the President on the choice of the best qualified persons to occupy such high positions.

“The final decision would remain with the President. However, such a Council could serve as a useful filter to assess the qualities of suitable candidates and would further distance the final choice from purely partisan influence,” Mifsud said.

He insisted that the appointment of the Ombudsman’s successor requires "immediate attention to resolve the unwelcome political impasse". "This issue is crucial to ensure continuity in an institution that keeps the executive accountable, good governance and guarantee the rule of law through a smooth transition of power that reflects an efficient public administration with proper functioning checks and balances put in place," he concluded.