A constitutional doubt

It is a known fact that Malta would be required to have legislation in place which would make it possible to pick up part of the revenue raised in Malta and which is passed directly to Brussels, without any need of an annual approval of Parliament. The need of approval would mean that there can be an amendment and, consequently, a reduction of such a contribution.

The EU cannot have any of this nonsense.

This is being written before Malta would know what it would receive from the EU to smoothen the big leap and to soften the impact of becoming a net contributor to the EU budget. I wish to avoid here all the false promises of the millions of liri flowing into Malta, not upon membership but as soon as Malta was back on track with its application for full membership. That is a known story, and possibly readers may make their calculations by Sunday when this column will appear. What we now know from the political side is that the Prime Minister is saying that finances are not that important!

But I have a serious constitutional doubt. Does the government need a change in the Constitution to comply with the requirement of passing money directly to Brussels? That would be the scenario within a few years were we to become full members.

An entrenched provision

Sub-article 103 (2) of the Constitution is entrenched. It requires a majority of two-thirds of the whole House for any amendment. It states:

"(2) The heads of expenditure contained in the estimates (other than the expenditure charged upon the Consolidated Fund by this Constitution or any other law for the time being in force in Malta) shall be included in a bill, to be known as an appropriation bill, providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein."

An accurate reading of this provision shows that the estimates, or the annual budget shall include what expenditure Malta has to fork out annually, and this head of expenditure is included in a bill. That means that Parliament has to vote annually on a bill presented before it for approval.

One may say that there are the brackets in that sub-article which says that when an expenditure is a charge upon the Consolidated Fund levied under the Constitution or any other law for the time being in force in Malta, then there is no need for such annual approval. Fair enough. That would mean that the government would have an option to make payments to the EU a charge under the Constitution on the Consolidated Fund. But can it entrench such a provision, and any amendment would then require a majority of two thirds of the whole House? It can include such a provision but it would only require a simple majority to delete.

The same applies with equal force to any other ordinary law. A government without a qualified majority cannot subject that law to repeal with a qualified majority.

As the law stands, our future contribution to the EU would be subject to the annual approval of Parliament. Any law, whether incorporated in the Constitution or in an ordinary law, would require a debate in Parliament, and would depend on the government of the day.

An interesting scenario

Twenty-eight years ago Article 6 of the Constitution was amended and it makes it clear that the Constitution is the supreme law of the land, and any provision in conflict is null and void. Can international treaties go against the Constitution and remain applicable? Accession is a treaty. Can accession mean that the supremacy of Parliament according to the Constitution be made subject to the overriding control of the EU organs?

As far as I know the EU demands that there is incorporation in the national law.

What if a different Parliament decides to amend any legislation introduced by the government to comply with EU laws? Would that Parliament be impeded from changing such an ordinary law?

There is only one solution. Entrenchment. That is not possible unless there is agreement between the parties, and statistically it is not probable for any party to hold a two-thirds majority in Parliament.

Any administrative bypassing of the present provision in Article 103 would be in violation of the Constitution. Any amendment would be subject to repeal. In a democracy no one can bind a future parliament to please Brussels.