Let the people decide

The Maltese enter the final phase of a referendum on Maltese accession to the European Union against a backdrop of what has been presented as constitutional uncertainty. On the Opposition side the argument runs that the Constitution would need amendment for accession to the EU to have constitutional legitimacy, and that the required amendments would require a two-thirds majority in the House. The position on the government side is that there is no need for a constitutional amendment, on the ground that the Constitution as it stands provides sufficient legitimacy.

But there is an even more fundamental issue here, going to the heart of our constitutional democracy. It is that a long-term decision on the future of the country must in a democracy be recognised as residing in the people, not in Parliament. It must then be regarded as binding for the foreseeable future, for in political terms and in real terms it is a decision that will have effects beyond the lifetime of any legislature.

This is and will never be more the case than on the question whether Malta should join the EU or not, the question now being asked of the people. How does one come to this conclusion, having started by referring to the 'two-thirds' issue?

What needs to be said, and understood, is that there is no difference in principle, as far as sovereignty is concerned (though there may be one of scope in the sense of the range of policy areas covered), between the case of membership and that of "partnership". The reason is that any partnership agreement worth anything in terms of substance will be on the basis that Malta will be bound by the acquis, not only as it stands at the date of the signing of the agreement, but also as it evolves in the future, just as in the case of membership.

Although we still do not know with any degree of precision at all what 'partnership' would mean (and hence the only possible question that could be submitted to the people at this time is that which has in fact been laid before the people by the government, for the people to answer with a clear Yes or No), any partnership agreement would, in the same way in principle as in the case of membership, oblige us to implement the "changing acquis" in the main policy areas that would without doubt feature in any type of agreement on the insistence of the EU.

An agreement with what is a constantly evolving EU would simply not 'work' on any other basis, which is why the EU in effect requires as much in the agreements that it has with "third countries" to which it extends the benefits of its main policies. Therefore, both membership and any "partnership agreement" would each involve this long-term and changing perspective, with the change coming from the EU side as it developed its policies.

Therefore, in the context of the real European world, we are speaking of a long-term decision either way - for from the EU side each implies a long-term relationship involving, in the perception of the EU, deepening convergence and integration in line with EU rules, whether we like it or not. Indeed, as far as the Mediterranean third countries (non-member states) are concerned, the EU is now speaking of an EU-Mediterranean Single Market - based on an evolving acquis, and of Euro-Mediterranean Integration - on the lines of an evolving acquis).

In short, like it or not, from the EU side there will always be the clear 'insistence' on a significant element of the following, namely that "its changing acquis" be implemented on an ongoing basis as part of any relationship. The acquis which either in whole or in part informs all 'agreements' is not frozen in time.

In legal and constitutional terms this means that we are speaking of a limitation of sovereignty either way, under both options. Furthermore, and paradoxically, in the case of 'partnership' one would be truly transferring sovereignty, while membership involves what is called the pooling of sovereignty. This is because through membership a member state participates in the decision-making process that leads to the formulation and adoption of the acquis.

Under any partnership option, known or guessable, one would be obliged, on all the evidence, to implement the acquis as the latter has been formulated and is to be formulated by the member states. This is what the EFTA states parties to the EEA have found.

Nor is it any different in principle with "lesser" forms of partnership such as President Prodi has spoken of as being more relevant (in the eyes of the EU) to our case if Malta stayed out of the Union. Indeed, it is impossible to conceive of any kind of agreement that had any meaning that omitted the element of transfer of sovereignty as I have described.

I write as a citizen concerned that what is no doubt a major constitutional issue - the transfer of sovereignty in strict legal terms - that is not easily resolved by the reading of the Constitution, which does not give a tailor-made answer to the question, is embroiled in an atmosphere that threatens to turn our Constitution into a political football to be kicked about in the House from legislature to legislature.

In my considered view, claiming that the 'two-thirds' constitutional requirement is, or can be, decisive in favour of one option over the other is misconceived, for the reason that it misses the point. Reading the Constitution in this way leads only to constitutional deadlock whichever way one looks at it. For both options raise the sovereignty issue. Both options involve long-term relations and both involve, in any event and for the duration of whichever relationship, the transfer of sovereignty, as I have said.

Of course, there is the possibility of the Constitutional Court being called upon to decide whether the Constitution permits any such transfer of sovereignty, legislative and judicial, at all. I will not argue here how it might go about doing this, except to say that in a situation of constitutional necessity, I would anticipate that that court would adopt an interpretation that permitted the Maltese nation to move forward on either scenario, in whatever direction was chosen by the people, rather than conclude that the nation could move forward on neither.

To conclude. If our Constitution permits the transfer of sovereignty, then the referendum should be respected as the long-term decision of the people. If the vote is No to membership, then a later referendum can put to them the adoption of a partnership agreement which involves the transfer of sovereignty in the sense in which we are using it and must use it. And that would also be binding long-term if the vote were a Yes to that.

On the other hand, if an interpretation of the Constitution were to lead to the conclusion that it did not permit the transfer of sovereignty, then it would need to be amended before either scenario could occur. This is why I cannot imagine that a court faced with the task in the context of the Maltese political reality could subscribe to this interpretation, which is the one current in the Labour Party, for it is an interpretation which puts the future of the nation perpetually in the hands of a minority of the representatives in the House able to block a two-thirds vote. It puts the future of the nation in the hands of a minority of the people.

When the politicians in parliament are deadlocked, as they are always likely to remain, neither main block being prepared to support the proposal of the other, then so is the nation. Unless all the politicians can agree to leave the matter entirely to the people, which is where we always thought sovereignty truly resides; unless the people are finally, truly, to be made the masters of the Constitution. And this can only be if either (a) the two main parties agree that there really is no constitutional impediment and agree to respect the will of the people in a referendum, or (b) if they agree to disagree about whether there is a constitutional impediment but agree to respect the will of the people having urged them to clearly express their will by referendum.

It is the second process that, as a citizen, I hoped would be completed at the Labour Party conference. The decision there taken to not officially boycott the referendum, but at the same time to invite voters to spoil their vote, I say with genuine sorrow and disappointment, fell short of my hope. But not so that it cannot be remedied.

The people can remedy the shortfall by deciding to make the choice, to vote, and to vote clearly Yes or No on the question of membership. And the political parties can still decide to regard the result of the referendum as determinant. In the interests of democracy itself, the people must speak and speak clearly. It is either this, or the very real danger of condemnation for the foreseeable future, and beyond, to party political football, with the people (the final referee) trampled underfoot.

Professor Xuereb is the head of the Department of European and Comparative Law in the Faculty of Laws at the University of Malta