On Saturday a referendum is being held supposedly to decide whether Malta should join the European Union or not.
For the past months if not years, most of the public debate has mainly focussed on the outcome of the negotiations between the Maltese government and the EU. Little has been said about the constitutional aspects and political consequences of Malta's possible EU membership. It has only been of late that the matter was superficially touched by an article or two.
The present administration wants us to believe that the only constitutional obstacle that may exist lies only in Article 1 (2) of the Constitution whereby it is established that Malta is a neutral state actively pursuing peace, security and social progress among all nations by adhering to the principles of non-alignment and refusing to participate in any military alliance. This is not so, because the constitutional aspects that are bound to arise are far more complex and difficult to resolve.
From a constitutional point of view there are two institutional problems related to possible membership that must be examined. One regarding Article 6 of the Constitution, which re-emerges with as much damning force as in 1974. Secondly, specific provisions of the Constitution which will necessarily require a two-thirds majority of all members of the House for our Constitution to be in conformity with Community law or should we say the contrary, Community law to be in conformity with the Constitution.
Article 6 establishes that if any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. This is a principle which unequivocally and in the most absolute manner establishes the supremacy of the Maltese Constitution over any other law, whether domestic or otherwise.
This principle will have to be reconciled with the law and practice of the EU institutions, especially the European Court of Justice (ECJ) decisions which have declared that European law should prevail over domestic law.
For those who are conversant with public international law, the prevalent legal school of thought within the Union is clearly moving towards a monist approach. So much so that even in the "Draft Text of the Articles of the Treaty establishing a Constitution for Europe" under Title III by the name of "the Union's Competences", the drafters under Article 9 propose the following: "the Constitution and law adopted by the Union institutions in exercising the powers conferred on it by the Constitution shall have a primacy over the law of the member states".
What the drafters have in mind does not only betray what many have been contending - namely, that the European Union is moving towards a federalist state - but it is also a reformulation of what has been already stated time and time again by the ECJ in cases such as Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 11/70) wherein it was held that "the legal status of a conflicting national measure was not relevant to the question whether Community law should take precedence. Not even a fundamental rule of national constitutional law could be invoked to challenge the supremacy of a directly applicable Community law".
The principle of the supremacy of Community law over domestic law was first established in Van Gend en Loos (1963). In Hauer vs. Land Rheinland-Pfalz (1979) the ECJ sustained that "if the validity of EC law should be assessed by reference to the constitutional law of particular member states, this would lead inevitably to the destruction of the unity of the Common Market". In Flaminio Costa vs. Enel [1964] the ECJ argued that "the precedence of Community laws is confirmed by Article 189, whereby a regulation shall be binding and directly applicable in all member states. This provision, which is subject to no reservation, would be quite meaningless by means of legislative measures which could prevail over Community law".
This legal Gordian knot has to be untied the sooner the better before Malta becomes a member of the EU, if ever. As yet nobody has had the opportunity to examine whether the whole legal corpus of the Union is consistent with the requirements of our Constitution, but the mere potentiality that any future Community law may be inconsistent with our Constitution will lead us to an institutional quagmire.
Specific provisions of the Constitution
Independently of the problems posed by Article 6, a second constitutional obstacle will arise when it comes to the direct application of EU laws and directives within the Maltese territory. This is being said insofar as that, in terms of Article 51 of the Constitution, it is established "that there shall be a Parliament of Malta which shall consist of the President and the House of Representatives" and subject to the provisions of the Constitution Parliament is enabled to provide laws for the peace, order and good government of Malta [Article 65 (1)].
Some may argue that this provision can be amended by a mere bare majority of the members of the House of Representatives since Article 51 is not entrenched by virtue of Article 66 of the Constitution. However an amendment there must be.
Contrary to this argument, one must necessarily make reference to what Article 124 of the Constitution understands by the word "Parliament" and it is there unequivocally defined as meaning "the Parliament of Malta". Article 124, unlike Article 51, is entrenched by virtue of Article 66 of the Constitution and cannot be otherwise altered by the approval of a resolution in the House of Representatives unless on the final voting thereon in that House it is supported by the votes of not less than two-thirds of all members of the House. This means that only the Maltese Parliament can make laws in the Maltese territory.
Unless the Constitution is changed in the manner described above, one cannot envisage how EU laws and directives will be directly applicable in Malta without being in breach of the Constitution. One should also not fail to note that by virtue of Article 65 (1), Parliament is bound to act in such a manner as not to breach any part of the Constitution, so much so that its power "is subject to the provisions of the Constitution" be they entrenched or otherwise.
As if this was not enough, we encounter a similar constitutional obstacle when it comes to the application of laws in Maltese territory. Our Constitution, by virtue of Articles 95 to 100, establishes a judiciary for the application and the implementation of laws passed by the Maltese Parliament. By virtue of Article 66 the said provisions are entrenched and require the approval of two-thirds of all members of the House in order to be amended or altered.
Again, here we are faced with the problem of reconciling this constitutional provision with the application of the ECJ decisions within Maltese territory well knowing that the only courts which have such power are those mentioned in Article 95 of the Constitution which states that there shall be in Malta and for Malta such superior courts having such powers and jurisdiction as may be provided by any law being from time to time in force in Malta. Furthermore the Constitutional Court established under Article 95 is to the exclusion of any other court in constitutional matters, so much so that Article 124 of the Constitution again defines "Constitutional Court" as being that established by Article 95, which, one must again remind, is entrenched by virtue of Article 66.
We have only cited a few examples of those provisions which require at least a two-thirds majority of all members of the House which need to be altered in order to avoid any institutional conflicts should Malta decide to join the EU. Furthermore there are many other constitutional changes to be made albeit without the need of a qualified majority so that the entirety of the Constitution is in conformity with the EU institutional framework such as the Executive and the first chapter of the Constitution.
Other candidate countries have managed to do what we have up to now failed to accomplish. Since joining the EU necessarily implies a change in the constitutional physiology of the country concerned and a part-cession of state sovereignty in favour of EU institutions, most of them have managed to implement the required constitutional changes. Even existing members have along the years felt the need to effect the necessary constitutional changes. Suffice it to refer to article 88 (1) and (2) of the French Constitution, Article 11 of the Italian Constitution, Article 29 (4.3) of the Irish Constitution, Article 94 of the Dutch Constitution, Article 23 of the German Basic Law and so on and so forth.
In our case these constitutional amendments are more pressing since our Constitution specifically declares its supremacy over all other laws and unlike many other constitutions, of existing members and candidate countries, provides for a more complex and refined mechanism how to change and alter the Constitution.
On March 8 the Maltese are being called to vote in a referendum to what we believe will lead to an inconclusive result. But even were it to be a binding and not a simply consultative referendum, the crux of the problem would not stop there. The constitutional complexity of the matter is yet to be resolved which we believe should have been determined definitely before going to the ballot box on Saturday.
Any result of a referendum will be non-consequential in default of an agreement between the political forces represented in Parliament on what changes and alterations to the Constitution are to be effected. That is why it is our sensible belief that, as in many other historical instances, we are putting the cart before the horse.