I have read with great interest Henry Frendo’s contribution, ‘Inventing a National Day’, (The Sunday Times, March 24). Although we might not necessarily agree as to which day should be selected as the National Day of Malta, I would like to publicly thank him for having put pen to paper to generate a discussion on such an important constitutional issue for Malta. Hopefully others will also regale us with their views.
The constitution of the Second Republic should no longer be framed within the fabric of a colonial constitution
Our discordance is in the fact that I propose a sole National Day for Malta, one which is still to come and which I argue should replace both Independence Day and Republic Day as Malta’s National Day. This is because Constitution Day, the day on which the Second Republic should get its constitution, should sever the umbilical cord with Malta’s past colonial times, something which the two other national days do not: on the contrary, they are a continuation of colonial institutions, values and culture in an independent and republican state of Malta.
While I do admit that the current constitution does have its benefits and that, to a limited extent, has served us during the nearly 50 years or so since independence, it has given rise to difficulties in its application and interpretation during such time.
My contribution referred to by Prof. Frendo did not deal with constitutional history but with a constitution in the making. It was not advocating celebrating Constitution Day “because of some constitutional amendment” as Prof. Frendo put it.
Since 1964, we have had several constitutional amendments adopted by Parliament but none of these qualify for a Second Republic, none were discussed by a Constitutional Convention, none brought about the complete abrogation of our colonial constitution and none resulted in a new and second constitution for Malta.
On the contrary, I was advocating the complete re-writing of the constitution, or, better, the re-foundation of the state of Malta to totally cut the umbilical cord with Malta’s colonial history.
By ‘re-foundation’ I understand that all the institutions of State, either in their current form or in a new form, are established afresh. Re-foundation implies that not all the current institutions of the State are kept, when re-founded, or kept in their current format.
Moreover, the content of the new constitutional document might contain new provisions which are not necessarily extant in the 1964 constitution. Indeed, several states have rewritten their own constitutions over time and I see no difficulty in this respect why Malta should not follow their experience.
I favour the complete rewriting of a new Maltese constitution and ditching the colonial constitution of 1964 because it is at this historic period in time that the Maltese are sovereign in their own state (needless to say, thanks, of course, to Independence Day and Republic Day).
But on these two dates we were very much limited by the negotiations for independence and the actual wording of the constitution. Indeed, the 1964 constitution was given to Malta by means of an enactment of the United Kingdom Parliament and not by an Act of the Maltese Parliament.
Now that Malta is self-governing, it can decide to write a new constitution and do away with the independence constitution. When the Maltese will give to themselves their own constitution, Independence Day and Republic Day will be relegated to second division in so far as national holidays are concerned.
The 1964 constitution essentially reflects a template constitution which the British gave to all ex-colonies with some minor amendments here and there. A study of British ex-colonies’ independent constitutions indicates that these constitutions, including that of Malta, are very much similar to each other because they followed the same model. There are really not many distinguishing factors between the constitution of Malta and those of ex-British colonies.
We have had this constitution, with all its inherent defects – and admittedly these are not few – for nearly 50 years. The time has now come for the Maltese to write their own constitution which is not imposed upon them by any foreign power or by the Parliament of any foreign state.
A constitutional convention is not normally called to draft a few cosmetic changes here and there to an extant constitutional document but to rewrite a new constitution. But the constitutional convention should do by far more than that: it should move on to establish a Second Republic with its own new constitution.
In this respect, the old constitution ceases to exist: it is abrogated and is replaced by an autochthonous constitution concluded following the convening of a constitutional convention.
Malta needs to move on, 50 years later, with a new constitution which embraces Maltese cultural identity, establishes Maltese institutions which are not necessarily a carbon copy of the British model, which suits Malta as a Mediterranean state within a European heritage, which takes stock of Malta’s size, which reflects our values, traditions and aspirations and, more importantly, which is totally home grown.
The current constitution does not do so; nor can it ever do so, for it was never conceived to achieve such purposes. Its limited purpose was intended to replicate the British constitution in Malta with a few nuances here and there. Various are the constitutional issues which the independence constitution does not address and which I have addressed elsewhere.
The constitution of the Second Republic should no longer be framed within the fabric of a colonial constitution as the Independence and Republic constitutions are. The new constitution should be the result of widespread consultation which should be voted upon by Parliament and sealed by popular vote. Unfortunately, the Republican constitution never obtained popular approval in a referendum. Legitimacy dictates that this time round a new constitution is also approved by the people.
A simple amendment to the current constitution will not bring about a Second Republic. The new constitution should break entirely away with the old constitution, making Independence Day and Republic Day notable historic dates for Malta but largely and inseparably tied to Malta’s past colonial times.
These two national days naturally form part of our history but should not go beyond history.
The Second Republic constitution should be nothing of this sort. It should be a constitution written by the Maltese, approved by the Maltese and regulating and inspiring the Maltese. It should be, to borrow Prof. Frendo’s apt words, “a well-intended dream” to which I would add “come true”.
We should thus look to the future to understand the past. That is what a constitution in the making should be all about which befits a national day to celebrate its success.
Kevin Aquilina is the dean of the Faculty of Laws at the University of Malta.