First scenario. The government wins the referendum and the Nationalist Party goes on to win the general elections.
Second scenario. The government loses the referendum and the Labour Party wins the general elections.
Either way, both parties cannot mess with the constitution.
The constitution is very clear. Section 66 provides a list of sections that need an Act of Parliament supported by the votes of not fewer than two-thirds of all the members of the House in order to be amended or repealed. Moreover, section 6 clearly lays down that the constitution is the supreme law of the land.
Whether as members or partners, any treaty or agreement with the EU cannot be incompatible or in conflict with the constitution. Or, rather, the Maltese constitution cannot be incompatible with EU law as the EU law reigns supreme. However, both political parties have to date been unable to tell us how they intend honouring their commitments with the EU if and when these commitments do not comply with the provisions of the constitution.
A perfect example is that of Malta's commitment to pledge full and unconditional support to the EU's developing (note: developing) foreign and security policy when it is bound by section 1 of the constitution to adhere to a policy of neutrality and non-alignment and cannot participate in any military alliance. Such commitment is a clear breach of the constitution and if the government thinks it is going to ride roughshod over the constitution, it is mistaken.
The same applies to the laws from Brussels. If the constitution states that only parliament has the power to make laws in Malta, how is it going to divest some or, rather, most, of its power to Brussels? What about the pension rights that are also enshrined in the constitution and require a two-thirds majority for amendment? How will the government abide by an eventual pension reform in Brussels?
Irrespective of what the government's constitutional experts say, EU law is supreme over all national laws, including the constitution. A number of cases (Van Gend en Loos, Enel and Handelsgesellschaft) have led to the development of this supremacy.
The European Court has made it clear often enough that the validity of a Community measure or its effect within a member state cannot be affected by claims that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure. Other member states have had to amend their constitution to reflect this new supremacy.
Italy introduced article 11 in its constitution which permits such limitations of sovereignty as are necessary to an organisation that ensures peace and justice between nations and encourages international organisations which promote such ends. Article 24 of the German constitution allows for the transfer of legislative power to international organisations.
The Irish constitution had to be amended too. The United Kingdom has no written constitution. It passed the European Communities Act in 1972. It also recognises the supremacy of EC law over domestic laws.
Even Hungary, one of the accession countries, has had to amend its constitution by relinquishing part of its sovereignty to Brussels before asking the people to vote in a referendum.
And Malta? We are still adopting a laissez-faire attitude.
The political parties still have no answer but time is running out fast and they cannot expect us to cast a free vote in the referendum when we are being left in the dark as to how they intend shifting the supremacy of the constitution to the EU and how they are going to honour any of their EU commitments that might be incompatible with the provisions of the constitution.
One thing is for sure: they will not be allowed to mess with the two-thirds!