Photo: Jason BorgPhoto: Jason Borg

Ranier Fsadni (‘Who should be chair’, January 7) disagrees that the President of Malta should chair the bi-party discussions on constitutional reform due to conflict of interest. While I agree with Fsadni, I would go one step further and statethat it is unconstitutional for the President to be requested to chair such discussions.

The starting point of a discussion on the President’s functions has to be article 78 of the Constitution of Malta. In sub-article (1) it is stated that: “The executive authority of Malta is vested in the President.” The President is constitutionally appointed head of the executive branch of the State. The Constitution does not appoint the Prime Minister as head of the executive but the President. However, sub-articles (2) and (3) provide two important inroads which practically render the President a figurehead rather than an active and dynamic official figure.

Sub-article (2) states that: “The executive authority of Malta shall be exercised by the President, either directly or through officers subordinate to him, in accordance with the provisions of this Constitution.” This implies that, first and foremost, executive powers are not solely exercised by the President but are exercised by both the President and officers subordinate to her and secondly when the President exercises executive authority she can do so only “in accordance with the provisions of this Constitution”.

The President has a finger in the pie

A study of all the provisions of the Constitution indicates a twofold typology of Presidential executive authority: where the President exercises, in the vast majority of cases, executive authority in accordance with the advice of Government; and where the President exercises, in the vast minority of cases, executive authority on her own deliberate judgment.

Sub-article (3) then states that: “Nothing in this article shall prevent Parliament from conferring functions on persons or authorities other than the President.” This sub-article is disallowing Parliament to confer functions upon the President. This means that while Parliament may entrust functions of whatsoever nature to any person or authority, it is debarred from increasing the functions of the President as contained in the various provisions of the Constitution. But the President may chair the Commission for the Administration of Justice without difficulty as such function is assigned to her by the Constitution and not by ordinary law.

For Parliament to confer new functions upon the President, the Constitution has to be amended. On the other hand, it is perfectly lawful for Parliament to remove certain functions which are assigned to the President by ordinary law such as to expropriate property. This latter function is essentially a vestige of colonial times when the Governor used to expropriate property. On becoming a republic this power was wrongly left to be exercised by the President.

Of course, it can be argued that it is not Parliament which is entrusting the President with the additional function to chair the discussions leading to the formulation of a new Constitution, that the President will not be taking any decisions let alone approving them, that the President’s role is simply to bring the two parties together and mediate between them and that this has happened in the past. This might be true.

But if the Constitution is prohibiting Parliament from conferring new functions upon the President, then can the government, or the Prime Minister or the leader of the Opposition or the President herself confer additional functions on the President which are not specifically provided for by the Constitution? Can a Cabinet decision, or an administrative decision taken by the Prime Minister or an agreement reached unanimously between the Prime Minister and the Leader of the Opposition, or a resolution of the House of Representatives be resorted to in order to usurp the constitutional provision?

The answer is in the negative because, first and foremost, the conferring of additional functions upon the President are prohibited by the Constitution; second, if they were to be allowed, they would have to be made by law because no function can be given to a public officer except than by law; third, the granting of additional functions to the President even if not by a primary law or a subsidiary law but by an administrative decision or an agreement entered into between the Prime Minister and the Leader of the Opposition if considered to be binding, is an instrument having the force of law and therefore is law in terms of the definition of ‘law’ in the Constitution; fourth, no Cabinet decision or agreement reached by the House of Representatives, even if binding and even if endorsed in a resolution of the House, can bind the President once the Constitution is superior to Parliament and the latter has to give way to the Constitution (unless of course it amends the provision in question).

But as things stand, Parliament would be in breach of the Constitution and of the rule of law if and once it were to confer unconstitutional functions upon the President, even if those functions do not involve executive decision making but are of a mediatory nature. If, however, there is a provision – which there is not – in the Constitution which allows the President to convene constitutional discussions, then that would be a different matter.

Apart from the constitutional argument mentioned above, I do agree with Fsadni that the President is not the ideal person to chair such discussions.

First, the President has a finger in the pie: she heads the executive; forms part of Parliament and chairs the Commission for the Administration of Justice. She is involved in all three organs of the State. Her presence is omnipresent and in each of these three capacities she will see her roles being debated, proposed to be enlarged, shrunk or done away with. Second, there are several provisions in the Constitution which relate directly to the office of President ranging from her appointment, removal, functions, etc.

Can the President be conceived to be independent and disinterested when the discussions are focusing on these subjects? Can the President detach herself from discussing her own powers, salary, conditions of employment, duties, etc? In a court of justice, a judge is debarred from hearing and deciding a case in which s/he has an interest therein.

Should not this principle be extended to the President as well? The President is far from being ideal for this purpose and should not be dragged into partisan politics but should remain a symbol of national unity and above party politics.

Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.

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