The opposition proposed in parliament yesterday that the House of Representatives approve, by resolution, orders to be issued by the prime minister for treaties entered into by Malta to be regarded as one with the EU Accession Treaty.
The proposal was made in an amendment to the European Union Bill which started being debated in committee stage by the House. The purpose of the bill is to ratify the EU accession treaty and make provision for its implementation.
MPs made slow progress in their debate yesterday, only debating part of clause two, which is the definitions clause. As a result, the House will hold extra morning sittings as from today.
The bill provides that the prime minister may "by order" declare that a treaty entered by Malta after April 16, 2002 be regarded as one with the EU accession treaty, and that this order shall be conclusive. But where a treaty amends or substitutes the Treaty on the European Union, it must be ratified by parliament.
Foreign Minister Joe Borg explained that this proviso would enable Malta to adopt the treaties and protocols which the EU reached with other countries or groups.
The prime minister could declare that a treaty entered into by Malta (as part of the EU) after April 16 (when the Accession Treaty was signed by Malta) was to be regarded as one with the EU Accession Treaty.
Mr Bartolo said this bill diluted parliament's role and rendered it a rubber stamp of the government's actions.
Home Affairs and Justice Minister Tonio Borg explained that the prime minister's orders would be issued by virtue of legal notices, which could be challenged through a negative resolution in the House within 28 days of their publication.
Ms Marie-Louise Coleiro (MLP) said there was no way to identify which treaties would be debated in the House and which would not.
What safeguards would there be if a future treaty involved the Common Foreign and Security Policy, and prejudiced Malta's neutrality as enshrined in the constitution?
Dr Borg said Malta would participate in any future treaty being negotiated by the EU and would be able to give its own input.
It would therefore be futile for such a treaty to be discussed all over again by the Maltese parliament once it would have been adopted; however any MP could move a motion for the treaty to be discussed within 28 days of the publication of the legal notice.
As for Malta's neutrality in terms of the constitution, this had been guaranteed by the EU during the accession negotiations and a declaration on neutrality was annexed to the accession treaty.
The draft EU constitution also included safeguards on the neutrality of member countries. Anything which would impinge on the constitution would have to be approved by the Maltese parliament.
Mr Joseph Cuschieri (MLP) asked what weight Malta would have in decisions taken by the EU when it reached agreement with third parties.
What criteria would be used to decide which treaty would be adopted by a legal notice and which would be approved by an act of parliament?
The foreign minister said that agreements entered into by the EU would have to be accepted by all member states but such states would have participated in the negotiations which the EU would have had before the treaty was signed.
Dr Anglu Farrugia, opposition justice spokesman, said the bill did not indicate that the "orders" to be issued by the prime minister would be legal notices, as government spokesmen had said, and the Interpretation Act was not clear on this point.
Even if the orders were to be issued by legal notice, procedure still had to be regulated. Legal notices became law as soon as they were issued, and should they be challenged in parliament, MPs would still be faced with a fait accompli. The EU had not requested this procedure of the government.
The government had claimed it had copied the UK's European Communities Act of 1972, yet in terms of that law, all orders had to be approved by resolution by all the Houses of parliament. The bill proposed by the Maltese parliament made no mention of referral to parliament, and a debate could only be held if the procedure to be followed was that of a legal notice which could be challenged.
Turning to neutrality, Dr Farrugia said the neutrality declaration attached to the accession treaty had been made by Malta on its own. Neutrality as defined in the constitution so far appeared to be safeguarded since Malta would have veto powers in the EU's Common Foreign and Defence Policy, but that would change if veto powers were removed.
Dr Joe Borg said the government had no objection to specifying that the orders to be issued by the prime minister would be in the form of legal notices.
Referring to neutrality, Dr Borg observed that during the debate when neutrality was introduced in the constitution, then Prime Minister Carmelo Mifsud Bonnici had defined neutrality as neutrality between the superpowers.
Despite that, Malta had signed a military agreement with North Korea and a quasi military treaty with Libya at the height of the Cold War.
All this showed that Malta's neutrality still allowed room for maneouvre. Furthermore, the veto right in the EU Common Foreign and Security Policy could be removed only with unanimity in the EU.
EU positions did not conflict in any way with Malta's neutrality, more so if neutrality was defined as meaning neutrality in the context of the superpowers.
The neutrality clause would remain in the constitution and anybody who felt that any action by Malta violated it would remain free to institute a challenge before the courts.
Mr Leo Brincat, opposition foreign affairs spokesman, said that during the last legislature, there were at least two instances when challenged legal notices were not brought before the House for debate.
How many legal notices were likely to be issued by the prime minister? What would be the implication if each and even one was contested?
At what stage was the government considering appointing the scrutiny committee of the House of Representatives to oversee EU developments?
Notary Charles Mangion, deputy leader of the opposition, said that the main issue was the distinction between the legislative and executive powers.
The Opposition amendment was intended to strengthen parliament's role. If one wanted parliament to scrutinise, then one had to accept the opposition amendment.
Dr Joe Borg said a mechanism should be in place for any document being negotiated within the EU to be discussed by parliament or a committee within it. This would also give guidance to the Maltese delegation to the EU.
Once an EU treaty was agreed to, this would be put on the Table of the House and any MP would have the right to challenge it. He said the government was ready to specify in the bill that orders by the prime minister on the adoption of the treaties would be in the form of legal notices.
The number of legal notices regarding treaties would be small, if any. Orders with regard to alignment with the acquis would be a different matter.
Dr Farrugia said that legal notices were generally issued on minor points of legislation and not on something as important as legislation connected with the EU.
Dr Joe Brincat (MLP) said the 28-day period within which a legal notice could be challenged started from the date when the legal notice was laid on the Table of the House, not the date of publication. The Interpretation Act, however, did not impose a term within which a legal notice should be tabled.
It did not make sense to have negative motions to annul agreements which would have been signed. Such treaties should be discussed in the House before they came into force.
The debate continues this morning.