Speaker Anġlu Farrugia Photo: Jason BorgSpeaker Anġlu Farrugia Photo: Jason Borg

When Speaker Anġlu Farrugia said there was no precedent in the UK of an impeachment motion being carried forward from one legislature to another, it appeared he was contradicting previous advice.

However, the apparent confusion caused by the ruling on Mr Justice Lino Farrugia Sacco’s impeachment motion was due to two terms that have different legal implications: prorogation and dissolution.

A 1996 memorandum by then Speaker Lawrence Gonzi had quoted from Erskine May, considered to be the Bible of parliamentary procedure in the House of Commons, to back up his argument that an impeachment motion could be carried forward.

The relevant passage from Erskine May that gives impeachment a special status states: “The effect of a prorogation is at once to terminate all the current business of Parliament. Not only are sittings of Parliament at an end but all proceedings pending at the time are quashed, except impeachments by the Commons and appeals before the House of Lords.”

The ruling has put the spotlight on a grey area in the law

Erskine May also refers to procedures against a certain Judge Fox in the UK that had continued even after prorogation of the House of Commons.

Dr Gonzi had said that even though in Malta any pending motions died with the dissolution of Parliament, the UK example gave credence to the argument that an impeachment motion was an exception.

However, Dr Farrugia raised the difficulty of reconciling what Erskine May says with the current legal dilemma over Mr Justice Farrugia Sacco’s impeachment.

Prorogation is when a parliamentary session is stopped with a view to continue some time later. This is the practice adopted in the House of Commons and has nothing to do with Parliament’s dissolution as a result of an election being called.

Prorogation is not part of the Maltese Parliament’s practice.

In a dissolution, on the other hand, Parliament stops functioning, all motions die with it and a new Parliament is formed after the election.

Therefore, the Judge Fox impeachment motion and its continuation after Parliament’s prorogation cannot be compared to the motion Dr Farrugia ruled on, which was a continuation from the last legislature.

Dr Gonzi had noted the Commission for the Administration of Justice Act obliged Parliament to consider an impeachment motion if the commission found there was a prima facie case.

This implied Parliament had a duty to consider the motion “if and when” the commission decreed there was such a case.

However, in a counter argument, Dr Farrugia insisted parliamentary procedure tied a motion to its proponent and, in this case, Dr Gonzi – who had moved the impeachment motion as prime minister in 2012 – was no longer an MP.

Dr Farrugia’s ruling has put the spotlight on a grey area in the laws governing the impeachment of members of the judiciary.

There are no legal provisions that make it clear that such motions are privileged and should be considered an exception.

Even Dr Gonzi’s considered approach to the subject in 1996 rests on practices abroad and highlights the lacuna in the laws.

The situation has left the country in uncharted territory that may require a political solution through proper, clear legislation rather than a legal solution.

ksansone@timesofmalta.com

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