Opposition demands constitutional safeguard on adoption of EU laws

The government and the opposition yesterday agreed on an amendment to clause two of the European Union Bill on orders which the prime minister may issue to declare that a treaty entered into by Malta after April 16, 2003 would be regarded as one with the EU accession treaty.

The government however rejected an amendment to clause three where the opposition said that the adoption of existing and future acts by the EU should be "subject to the constitution of Malta." The government insisted that there was no need for reference to the constitution because that was automatic for all ordinary legislation. The opposition called a division but its amendment was defeated with 25 in favour and 29 against. The clause was approved by the same margin.

During the debate on clause four, the opposition warned that the government was on slippery legal ground when it legislated that a new criminal offence punishable with imprisonment for not more than two years could be created by legal notice.

The bill had originally provided in clause two that the prime minister's orders would take effect as soon as they were issued. The orders were to have been in the form of legal notices which could have been challenged in the House within 28 days of their publication.

The opposition had objected and insisted that the prime minister's orders should be approved by parliamentary resolution. Otherwise, parliament would be reduced to being a rubber stamp.

Foreign Minister Joe Borg said yesterday that the government had reconsidered. This was a sector which was very limited, dealing only with treaties entered into by Malta which would be considered part of the accession treaty.

The government had no objection to accepting the opposition amendment but since it was rather vague, the government was proposing that the prime minister's orders would come into force after their approval by parliamentary resolution.

Such resolutions had to be debated by a House standing committee within two weeks of their being tabled. The committee would then report to the House and a final vote would be taken without further debate.

Opposition MPs Evarist Bartolo, Anglu Farrugia, Marie-Louise Coleiro and Joseph Cuschieri welcomed the amendment. Ms Coleiro insisted that all MPs should have a right to participate in the committee meetings.

Dr Gonzi said he agreed that any MP should be able to participate in the committee meetings, but if a vote were taken in committee, it would be the regular members who would participate.

During the debate on clause three Dr Borg explained that as from the accession date, the accession treaty and existing and future acts adopted by the EU would be binding on Malta and shall be part of domestic law.

This was a basic requirement of all member states. Furthermore, Malta like the other member states, would have a say in the preparation of future acts of the EU.

It was also being laid down that EU law would be supreme over domestic legislation. Any provision of domestic law which was incompatible with Malta's obligations under the accession treaty would be without effect and unenforceable.

This, Dr Borg said, was a basic principle. Were the EU to allow member states to have laws which conflicted with its own legislation there would be a collapse of the whole EU system.

He pointed out there were many areas in which the EU did not legislate and where member states therefore acted as they deemed fit.

Dr Borg said that Malta's constitution would remain sovereign. Nothing in the acquis went against the constitution. If anything, the EU further improved the rights already laid down in the constitution.

As for the constitutional provision on neutrality, the opposition had already acknowledged that neutrality as defined was not threatened by the EU. Should the EU in future want to introduce changes to its Common Foreign and Security Policy, such changes would require the unanimity of the member states. Therefore Malta could insist that changes were made so that they did not conflict with its own constitution, unless Maltese MPs agreed that the constitution should be amended.

The minister observed that as a last resort, difficult as it was, a member state that was uncomfortable with changes in the EU, could leave the EU, a right which always existed for sovereign states but which was being directly recognised in the draft EU constitution.

Dr Charles Mangion, deputy leader of the opposition, said the constitution laid down that no law could be enacted which violated the constitution. This principle needed to be underlined. The bill needed to be clarified because it provided that existing as well as future acts of the EU would become part of domestic law.

Malta needed to ensure that the sovereignty of its constitution was safeguarded. The opposition was therefore moving an amendment providing that EU laws would be part of domestic law "subject to the constitution of Malta."

Dr Tonio Borg, Minister of Justice and Home Affairs, said this amendment did not make sense. All ordinary legislation, including this one, would be without effect if they violated the constitution. The constitution remained supreme, and it would therefore be an insult to the constitution if one were to specify in such ordinary legislation that it was subject to the constitution.

One did not have to say that a law was subject to the constitution because that was always the case.

The EU legislative process usually took years and member states had every opportunity to express their disagreement and move changes if the draft conflicted with their constitution. It would therefore not make sense for EU legislation to be rejected once it would have been enacted after debate among all the member states.

Ms Marie-Louise Coleiro (MLP) said the law being debated was no ordinary law and it was important to create a safeguard.

Opposition justice spokesman Anglu Farrugia said the amendment being proposed by the opposition made sense as this was no ordinary law. There was nothing wrong in stating the obvious.

Dr Joe Brincat (MLP) said that while parliament had the duty to remain within the ambit of the constitution, the EU did not. There was a glaring distinction and this was the danger. When the bill stated "every provision of law in conflict with the EU legislation", this included the constitution, so the safeguard was necessary.

It seemed there was currently no conflict between the constitution and the treaty but no one could say what the situation would be in the future.

Mr Evarist Bartolo (MLP) said he could not understand why the government did not wish to include a reference to the constitution in clause three but was doing so in clause seven which would amend article 65 of the constitution to provide, among other things, that subject to the provisions of this constitution... laws had to be in conformity with Malta's obligations in terms of the accession treaty.

If the government accepted the opposition's amendment to clause three, the opposition would have no problem with regard to clause seven.

The draft EU constitution itself laid down that the EU had to respect the constitutional characteristics of its member states.

Dr Tonio Borg said clause seven amended the constitution itself and could not therefore be compared to clause three, which was part of ordinary legislation. He could not understand why the opposition was insisting with its amendment when clause seven and article 65 of the constitution provided that parliament may make laws "subject to the provisions of this constitution."

Dr Joe Borg insisted that the supremacy of the constitution over other laws was guaranteed and even this debate could serve as a guide to the law courts in this respect. One should not instil doubt where there was none.

When the question was put the opposition motion was defeated and the opposition called a division.

Moving clause four, Dr Joe Borg explained that EU regulations automatically became part of domestic law.

EU directives, however, had to be implemented by legislation as the member states wished. In terms of this bill, therefore, directives could be implemented by legislation, legal notice or an order by the prime minister, according to their importance. An order by the prime minister would be in the form of a legal notice which, as was normal, would be tabled in the House and could be challenged within 28 days by any MP and debated by the House.

Dr Anglu Farrugia said the government should explain which areas would be adopted by legislation, subsidiary legislation or orders by the prime minister. What criteria would the government follow? As it stood, the prime minister could, through a legal notice, even create a new criminal offence punishable with imprisonment for not more than two years.

Dr Tonio Borg said this clause had been copied from the UK's European Communities Bill of 1972. Malta had close to 500 laws, most of which made allowance for subsidiary legislation. When the EU issued directives falling within the ambit of laws under which legal notices could be issued, the directives would be adopted in that way.

A legal notice under this clause could not be issued with retroactive effect and an act of parliament would therefore be required in that case.

An act of parliament would also be needed to implement directives which involved the creation of a new criminal offence punishable with imprisonment of more than two years.

In other cases, the government could decide to issue a legal notice or move an act in parliament.

Dr Borg said he wanted to point out that any directive being considered by the EU would be debated in its draft form by parliament's foreign affairs committee or some other committee before it was adopted by the EU itself.

Dr Farrugia said the creation of a new criminal offence was a sensitive issue and he did not agree that the government should have a choice of whether this should be carried out by an act of parliament or a legal notice and it should always be the former.

Dr Borg said a criminal offence punishable with imprisonment for more than two years could be established only by an act of parliament, but the majority of existing crimes punishable by imprisonment of less than two years already stemmed from legal notices and this practice was being followed.

Dr Farrugia said he did not agree with Dr Borg, and in any case, offences which could lead to the curtailment of a person's freedom should be subject to an act of parliament.

Dr Joe Brincat said he agreed with Dr Farrugia. Referring to the constitution, the Interpretation Act and article seven of the European Convention on Human Rights, he said that the power to make laws was enjoyed by parliament only, especially in areas such as criminal offences. By-laws may have the force of law but they were not laws. The withholding of a person's freedom had to be backed by law. The government needed to reconsider because it was on very slippery ground.

Dr Tonio Borg said the constitution had a wide definition of laws which included subsidiary legislation. So too did the Interpretation Act. And several countries, such as the UK, had adopted bills such as this. Ideally, when there was no urgency, a new criminal offence would be introduced by an act of parliament, but he could not give such an assurance.

Dr Brincat observed that clause eight of the bill on transitory provisions gave the prime minister powers to issue orders to align laws with EU requirements but specifically laid down that he could not create any new criminal offence. This was contradictory with clause four.

Dr Borg said clause four would not be amended and an amendment, if necessary, would be moved to clause eight.

Clause four was later approved.

The debate continues this morning.