Alfred Gatt in his letter (September 1, 2015) appeals to the President as custodian of the constitution to defend the vilification of the state religion of Malta. Indeed, he writes with reference to Bill 113 of 2015 which proposes to remove the protection currently afforded by the Criminal Code to the constitutional state institution of the national religion.
But what would be the situation where the government, Constitution notwithstanding, moves in its current form the third reading of Bill 113 in the House of Representatives and that Bill is carried, with or without the approval of the Opposition? The next step would be to submit it to the President for the favour of her signature. What if the President entertains constitutional doubts as to whether she should assent to the Bill? Is her constitutional quandary solved, prima facie, by reference to article 72(2) of the Constitution, which states: “When a Bill is presented to the President for assent, [s]he shall without delay signify that [s]he assents.”
In the UK, it is a convention of the constitution that the monarch has to assent to Bills passed by both houses of Parliament. Once a constitutional convention has been incorporated in a written constitution such as the Maltese, as is the case with the monarch’s duty to assent to bills, it becomes a rule of law: its status changes from that of a non-binding convention into a legal duty, which can be enforceable in a court of law.
If the President fails to act in terms of the incorporated legal convention, she is in breach of the law. Moreover, in the case of the Constitution of Malta – contrary to the UK convention – the Maltese constitution uses the term “shall”, apart of course from “without delay”. The discretion which the monarch has in the UK not to comply with the constitutional convention is totally removed. The President is placed in a corner: she must assent to Bills without delay; otherwise she is considered to have misbehaved.
The President may decide not to assent but the consequences for her would be to be accused before the House for misbehaviour and will end up being removed from office with the attendant embarrassment that it will entail. Removal for misbehaviour only requires a simple majority vote in the House of Representatives. Removal from office is contemplated by article 48(3)(b) of the Constitution.
Once she is in breach of article 72(2) of the Constitution, she has to pay the consequences of her misbehaviour. Alternatively, the other option available is resignation. But still that might not solve the legal quandary where the acting president or the newly appointed president holds the same views as the incumbent who has been removed by a simple majority in the House. The President is indeed, constitutionally speaking, in a very weak position, at the back and call of the government of the day.
On the other hand, article 50 of the Constitution states: “A person appointed to or assuming the functions of the office of president shall, before entering upon that office, take and subscribe the oath of office set out in the second schedule to this Constitution.” The oath of office reads as follows: “I ... solemnly swear/affirm that I will faithfully execute the office of President of Malta, and will, to the best of my ability preserve, protect and defend the Constitution of Malta. (So help me God).”
As the law stands today, the President is relatively toothless. The solution lies elsewhere – with the judiciary who can declare that clause of Bill 113 inconsistent with the Constitution
The President is in a constitutional dilemma: shall I sign or shall I not? On the one hand, the Constitution directs her to assent to a Bill without delay. On the other hand, she is required to “preserve, protect and defend the Constitution”. Yet, in my view, Bill 113 is inconsistent with the Constitution. But what can a constitutionally-designed impotent President do, apart from resigning, in order to uphold the Constitution? And what will she achieve by resigning? Will she not simply be making place for the appointment of a new president or an acting president who will have no constitutional difficulty to sign Bill 113 into law?
Can she seek the advice of the constitutional court? This is not the case as the constitutional court has no advisory jurisdiction. Can she refer the matter to the Commission for the Administration of Justice? Neither the Constitution nor ordinary law allow for this. Can she take coercive action against the legislature? This is also out of the question because in a two- party system like Malta, the executive controls the legislature.
Can she seek the advice of the Attorney General? Yes of course, but will not the Attorney General have a conflict of interest when tendering his advice? He is no impartial arbiter because it is either his office which has drawn up the contested Bill or, if not, it has been vetted by his office before reaching Cabinet and the House of Representatives.
Our President has no real power, apart from moral authority. She can also discuss the matter with the Prime Minister during the regular meetings they have in terms of article 87 of the Constitution. But what if the Prime Minister wants to play difficult and keeps on postponing the meeting due to urgent duties of state or simply refuses to budge?
In the meantime, the clock is ticking and the “without delay” provision of article 72(2) becomes more pressing upon the President. But what can she do against a recalcitrant legislature which has no qualms in passing a Bill which, I contend, unashamedly, flies in the face of the constitution?
The oath of office of President was introduced in the Malta Constitution in 1974. The wording of the oath was lifted from the American Constitution, although in the US the President has the last say over executive action. He has the power to “preserve, protect and defend the Constitution”. He is the CEO of the US and commander-in-chief of the armed forces. He surely has the power to “preserve, protect and defend” the Constitution. He is far from being an impotent head of State.
But our President, even if she has the best intentions in the world to serve the country to the best of her ability and preserve, protect and defend the Constitution, what power does she have apart from moral power, the power to try and convince the Prime Minister and the power to resign?
By lifting the oath of President from the US Constitution and writing it in the Malta Constitution does not make the President of Malta better able to carry out her constitutional duties as set out in the oath of office in the same way as the executive President of the US can. Persuasion might sometimes work. Moral authority, especially when a general election is looming around might also prove to be miraculous. But not all politicians are open to conviction. Not everybody might be ready to bow his or her head to the dictates of conscience and reason and, more importantly, to the supremacy provision of the constitution.
Can the President be sued for not carrying out her duty to “preserve, protect and defend the Constitution of Malta”? The answer is in the negative for the Code of Organisation and Civil Procedure – not the Constitution – declares in article 742A that “no civil proceedings whatsoever shall be taken against the President of Malta in respect of acts done in the exercise of the functions of his office”.
Whatever the President will do rests between herself and her conscience. Irrespective what will happen with regard to Bill 113, the matter needs addressing from a constitutional point of view. If the President is to preserve, protect and defend the Constitution, she has to be given the tools to do so.
As the law stands today, the President is relatively toothless. The solution lies elsewhere – with the judiciary who can declare that clause of Bill 113 inconsistent with the Constitution and therefore void or the electorate who, in an abrogative referendum, may vote for the repeal of the constitutionally-offending clause in Bill 113.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.