Section 6 of the Constitution: a polarising or unifying factor?
On December 13, 1974, Sir Anthony Mamo, as Governor-General of Malta, gave his assent to Act No. LVIII after Parliament had overwhelmingly approved it by 49 votes to six, and the Republic of Malta came into being.
After this lapse of 30 years it might be safe to say that the Republican Constitution would not have come about at all in the way and in the form we know it today without the passage of Act LVII, cited as the Constitution of Malta (Amendment) Act 1974. Sir Anthony assented to this Act on December 13, 1974 too following its approval by Parliament the previous day.
This unique Maltese Act broke away from the British legal basis of Malta's Independence Constitution. It broke legal continuity. Historically it was the first time that the Maltese Parliament asserted the supremacy of the Maltese Parliament itself. Supreme and sovereign both with regard to Great Britain as well as with regard to the Independence Constitution.
Until then, Malta's Constitution was to be found in a schedule attached to an Order-in-Council given by Her Majesty on the advice of the Privy Council, at the Court of Buckingham Palace "in exercise of the power conferred upon Her by the Malta Independence Act 1964" - an Act of the British Parliament which did not bind the British Parliament's successors.
Until then, Malta was a constitutional monarchy. Until then, Section 79 (1) of the Independence Constitution of Malta prevailed, whereby "The executive authority of Malta is vested in Her Majesty" (Queen Elizabeth II of Great Britain). Until then, according to Section 79 (2), "the executive authority of Malta may be exercised on behalf of Her Majesty by the Governor-General either directly or through officers subordinate to him." Until then, the Governor-General who was "appointed by Her Majesty" also "held office at Her Majesty's pleasure" (Section 49).
Act LVIII of 1974 cited as the Constitution of Malta (Amendment) (No. 2) Act, 1974, also repealed Chapter V of the Constitution entitled "The Governor-General" substituting it with a new Chapter V entitled "The President" defining the qualifications and disqualifications of the holder of this new office. The President who would be appointed by Resolution of the House of Representatives could also be removed by Resolution of the House under certain circumstances thereat defined.
Moreover, no longer was the establishment of Parliament defined as "There shall be a Parliament of Malta which shall consist of Her Majesty and a House of Representatives" (Section 52) and therefore no longer was there the requirement under the old Section 73, "The power of Parliament to make laws shall be exercised by bills passed by the House of Representatives and assented to by the Governor General".
Act LVIII was the last Act assented to by a Governor-General of Malta - Malta's first Maltese-Governor General - who also became Malta's first President according to the new Republican Constitution. The person carrying the highest constitutional authority in Malta was most definitely a unifying factor in times of such radical constitutional changes.
Act LVII was based on the fact that Section 6 was not entrenched by a two-thirds majority and could therefore be changed by a simple majority. In other words, the section stipulating the supremacy of the Independence Constitution over any other law could be changed by a simple majority. Act LVII could and did stipulate that any Act of Parliament would be valid "notwithstanding any provision of the Constitution"; and moreover that "any inconsistency" shall "be without effect".
The doctrine of the supremacy of the Maltese Parliament could not have been better enunciated. No longer was Parliament constrained by the Constitution in its law-making function. Nevertheless the life of Act LVII was extremely short - the shortest interval possible, namely that between Sir Anthony signing it into law and immediately afterwards signing Act LVIII into law on December 13, 1974, where Section 6 was entrenched thus solidly reconstraining Parliament's law-making power within the limits set by the Constitution, now the Republican Constitution.
The fact that only six members of Parliament voted against this radical change to a Republican Constitution showed that opposition to the substantive changes and procedure chosen was not that significant. However, some legalistic opponents condemn Act LVII's repeal and re-enactment of a new Section 6 as invalid and illegal.
The main legal justifications advanced were that this principle of constitutional supremacy was some form of supernorma or our very own Grundnorm or that it was self-evident that the Constitution was suprema lex and that therefore it was not necessary to be included in the Constitutional text. Indeed it has been admitted by the drafter Professor J.J. Cremona that Section 6 did not form part of the original 'Maltese' draft.
But there precisely lies the source of all the ensuing controversy. Once it was accepted by the British Secretary of State (who had the final word) on July 19, 1963 at the fifth meeting of the Malta Independence Conference at the insistence of a Malta Labour Party delegate that Section 6 should be explicitly included in the Constitutional text, two sets of questions arise which are still unanswered:
1. Why do opponents keep harping on the superfluousness of Section 6 as a self-evident principle when this was in fact introduced not as a principle but as a key section of the Constitution itself?
2. Why is no mention made at all any more by jurists of the other written Labour proposal in its Draft Constitution entrenching Section 6 (then Section 4b) by virtue of Section 67 (then Section 47)? This was recorded in the Blue Book: Malta Independence Conference, 1963. HMSO 2121, where on the left-hand pages one found the Nationalist draft Constitution with Section 4b not entrenched by Section 47 and on the right-hand pages one found the Malta Labour Party draft Constitution with Section 4b entrenched by Section 47. Why indeed did the Nationalist Party delegates to the conference not accept the Labour proposal and entrench Section 6? Was there any other motive for leaving it disentrenched as Nationalist ex-Cabinet ministers have mischievously suggested?
If the Nationalist side only accepted the British Secretary of State's suggestion that Section 6 be introduced into the main text "simply ex abundanti cautela" (according to Cremona again) then why was it not entrenched when the Labour side formally proposed and insisted on its entrenchment?
No cautela at all was evident here; on the contrary a wilful and deliberate opposition to its entrenchment is most evident suggesting ulterior anti-constitutional motives which are clearly reprehensible and constitutionally indefensible.
To move on now to the ongoing relevance of Section 6 to Malta's EU membership and to the Treaty on European Union.
1. If this section on Constitutional supremacy is so self-evident as a principle that it did not even require explicit enactment in the 1964 Constitution because it was a supernorma or our Grundnorm or because the Constitution is manifestly suprema lex; and,
2. if in any case this was enacted into the 1964 Constitution and also entrenched in the 1974 Constitution;
How can (a) the European Union Act, Chapter 460 of the Laws of Malta ratifying the Treaty of Malta's Accession to the European Union, and (b) the just signed (October 29) Treaty on European Union both considering themselves to be superior to our Constitution and laws be considered as validly enacted merely with a simple majority in our Parliament against the expressly stipulated and entrenched supremacy of our Constitution by virtue of Section 6, and against the principle that this constitutes also our supernorma, our Grundnorm, and that the Constitution is suprema lex?
It is clear that the old opponents of the Republic will soon have become the most arduous defenders of our 30-year-old Republican Constitution. They should not give up hope. After all, in a deal between the two major parties, a 'reservation' which is hardly remembered was inserted as Section 1 (4) of Act LVIII of 1974.
It only tells us one story among the many unending possibilities available to negotiate and resolve the present impasse of the ultra vires signing of the two above-mentioned European treaties. Here it is and may it in the coming months stimulate a wide discussion of possibilities of trade-offs to accommodate the fair aspirations not only of the two sides but also of the people of Malta, the ultimate sovereign:
"Notwithstanding any other provision of this Act and of any provision of the Constitution of Malta (Amendment) Act, 1974, all such provisions shall cease to have effect and the Constitution of Malta shall again have effect in its entirety as in force prior to the coming into force of the Constitution of Malta (Amendment) Act 1974, if Parliament shall, within three months from the publication of the results of the general election following the next dissolution of Parliament after the coming into force of the said Acts, by law so provide".
Dr Alex Sceberras Trigona, a former Labour MP, was Minister of Foreign Affairs from 1981 to 1987.
His LL.D. thesis, on "Constitutional Change and the Maltese Constitution" was seminal in advocating, both in form and in substance, the change-over from the Independence to the Republican Constitution with a fully-fledged analysis of Section 6 as a loophole, because this is the way the Maltese Parliament did it.