In the current debate on the upcoming referendum which is to decide whether or not Malta should join the European Union in the next enlargement on May 1, 2004, such a referendum is often being referred to as a "consultative" one, the obvious inference being that the outcome of this referendum would not be binding but would serve primarily to gauge public opinion.
The Referenda Act, Cap. 237 of the Laws of Malta, contemplates three types of referenda.
Section 2 of the Act gives the following definitions:
"referendum" includes a referendum under this Act and a referendum under the Constitution; "referendum under this Act" means a referendum held for any purpose as provided in article 3 (1); "referendum under the Constitution" means a referendum held for the purposes of article 66 (3) of the Constitution;
To start from the last definition, "a referendum under the Constitution" is held for the purposes stipulated in section 66 (3) of the Constitution. According to this constitutional provision, a referendum must be held after the passage of a bill by a two-thirds majority of the House of Representatives which amends section 66 (3) or (4) or section 76 (2) of the Constitution. This referendum must be held not earlier than three months and not later than six months after such a bill is passed in the House. Furthermore, it must also precede the Presidential Assent.
Thus, the purpose of such a referendum is the ratification of a bill of the House of Representatives which amends by more than two-thirds majority an entrenched provision of the Constitution. Consequently, this type of referendum can by no means be considered as merely consultative. Rather, it is mandatory before the President gives his Assent to the bill passed by Parliament.
If one goes back to the Referenda Act, section 3 contemplates two kinds of referenda:
3. (1) Persons entitled to vote in a referendum under this Act will be called upon to declare:
(a) whether they approve proposals set out in a resolution passed for that purpose by the House and published in the Gazette; or
(b) whether they agree that a provision of law should be abrogated in accordance with the provisions of Part V of this Act, as the case may be.
Section 3 (1) (b) of the Referenda Act refers to the abrogative type of referendum. This is held upon the request of at least 10 per cent of the electorate which proposes the abrogation of a legislative enactment or a part of it. If 50 per cent plus 1 of the electorate were to vote in such a referendum, the result would be considered valid. Moreover, if a majority of those who vote were to approve the proposal, then, that particular legislative enactment would be considered repealed. Again, there is nothing consultative about this process.
This leaves us with one other type of referendum for consideration: namely, that contemplated by section 3 (1) (a) of the Referenda Act. The Act unequivocally states that the electorate is expected to "approve proposals set out in a resolution passed for that purpose by the House and published in the (Malta Government) Gazette". This is the kind of referendum the Government has been requested to hold following the resolution passed by the House of Representatives in its sitting of January 17. The House has resolved that the question to be submitted to the electorate for endorsement is the following:
"Do you agree that Malta should become a member of the European Union in the enlargement that is to take place on May 1, 2004?"
The Malta Government Gazette of January 21 has published this Resolution of the House. Section 4 (2) of the Referenda Act stipulates that the question to be put in a referendum must be answered in an affirmative or negative fashion The upcoming referendum of March 8 clearly complies with all the necessary requisites listed in section 3 (1) (a) of the Referenda Act.
At this juncture, the pressing question that needs to be asked about the forthcoming referendum has to do with its constitutional status. Is this referendum merely consultative in nature, as some are stating, or does its result bind both the House and Government alike? If indeed the referendum is merely consultative, what would be the constitutional effects of its outcome? Conversely, if it is not merely consultative, would its result bind a future parliament and government? The Referenda Act is practically silent on both points. Instead, it dwells primarily on the mechanics of the referendum process.
It must be stated from the outset that the government has no legal obligation to hold such a referendum. However, it does have a moral obligation to do so in keeping with the Nationalist Party's electoral manifesto. What the government is legally obliged to do under the Ratification of Treaties Act is to pass an Act of Parliament to ratify the treaty of accession of Malta to the European Union.
To examine whether or not this referendum is other than simply consultative, one would do well to look more closely at the wording of the Referenda Act and the House Resolution. Significantly enough, the Referenda Act uses the word "approve". This implies more than mere consultation. In effect, there is only one way to look at it: the government has moved a Resolution in the House, the House has approved this Resolution, and in terms of this Resolution, the House has requested the government to hold a referendum to approve the government's proposal, namely the accession of Malta to the European Union in May 2004.
The wording of the Resolution clearly states that Government considers the agreement of December 13, 2002 as providing "the right conditions for Malta's membership of the European Union and recommends it to the Maltese people". Moreover, the House deemed it right that this agreement "be put to the direct and sovereign decision of the Maltese people in a referendum".
If the electorate were to approve the referendum proposal, such approval would indeed ratify the government's recommendation and the road would be clear for accession to the EU. This notwithstanding, the treaty of accession would still need to be ratified by an apposite Act of Parliament.
If, on the other hand, the electorate fails to approve the referendum proposal, then the government's bid to get Malta to join the EU would be stopped on its tracks. This is not only because the government would lack the moral authority to sustain such a bid, but also because in effect through its Resolution of January 17, Parliament has surrendered its supremacy to the sovereign decision of the electorate. It is actually the electorate, rather than Parliament, which is being asked to approve the government's proposal for accession to take place.
Thus, whatever the outcome of the referendum, the government would be in duty bound to implement the result even though it is highly debatable whether such a result could indeed be legally enforceable. However, the government is not holding the referendum merely to consult public opinion before it decides the course of action that should be adopted. Rather, the referendum is being held to give the opportunity to the electorate to approve or disapprove the government's very definite proposal that Malta should join the EU. It would indeed be dangerous if Government were to ignore the decision of the electorate, thereby jeopardising the democratic fabric of this country. There would be no such risk if the referendum were simply consultative in nature, for in such case, the government would be perfectly entitled to ignore the referendum result.
The final question to be addressed is whether the referendum result would be binding on a future government. As has already been stated, the treaty of accession to the EU would need to be ratified by an apposite Act of Parliament. However, once the accession takes place, or even before the effective date of accession, that is, May 1, 2004, there does not appear to be any legal impediment for a future Parliament to change its position and abrogate such a treaty of accession. This follows from the constitutional theory of the supremacy of Parliament.
Furthermore, a future Parliament would be under no legal obligation to hold another referendum, though it may well consider it morally expedient to do so. In any case, a change in the course of direction either before or even after accession to the EU is possible. As the Maltese parliament will always retain its legislative supremacy, albeit in the light of Malta's obligations as member of the Treaty of Rome as subsequently amended, it will always have the final say.