In granting Malta and Gozo to the Order of St John, Emperor Charles V of Spain established that whenever the islands’ bishopric became vacant, the Grand Master would nominate three ecclesiastics so that the sovereign would select one for confirmation by the Pope.
The ruler’s wish was generally rubber-stamped by the Vatican during the 268 years of the Knights Hospitallers.
The Royal Commission of 1812 argued that such so-called ‘right of presentation’ would automatically pass to the King of England once Britain officially took over the islands. London and Rome were set to disagree on the candidate as soon as the first complication ensued in 1838.
The Council of Government, with a majority of handpicked councilors, hustled an Ordinance through its sittings to declare “appointments to ecclesiastical offices or benefices by a foreign power, without the approbation of the Governor, to be invalid”.
Mgr Francesco Saverio Caruana, Malta’s Bishop at the time and a ‘hero’ in the Maltese blockade against the French administration during the 1798-1800 interregnum, considered as illegal the giving of effect to Bulls nominating Church preferments in Malta and Gozo without the sanction of the Head of State.
Ordinance I of 1838 is still real and vivid 50 years after Malta achieved independence
He set up a line of “passive resistance” against Malta’s British sovereign (vide Governor Sir Henry Bouverie’s dispatch to Lord Glenelg, Secretary of State for the Colonies, the War and Colonial Office, Downing Street, London, February 12, 1838).
According to Malta’s Head of State Sir Henry, the spiritual leader of the islands – Mgr Caruana – had undertaken the same campaign that Mahatma Gandhi was to popularise worldwide in the period 1907-1914, 70 years after.
Ordinance I of 1838 strained severely Church-State relations and disputes surfaced from time to time on the matter and, indeed, over-protracted despite long-debated agreements like the Lyons-Antonelli of 1867 and the Simmons-Rampolla of 1889.
In 1936, at the height of an international armed war cloud, the Vatican was ultimately confronted by a diehard opposition of the British government in England and Malta to the candidacy of Mgr Michael Gonzi, then Bishop of Gozo, as he was deemed to be a headstrong Italophile too politically enmeshed.
Soon after, Gonzi was to mediate in person so that a Council of Government would, at least, be resorted in Malta following Britain’s arbitrary lifting of self-government, and, above all, showed dedication to the Allied cause since the outbreak of World War II.
The Colonial Office in London abandoned its recalcitrant stand in his disregard as late as 1943.
Malta’s Legislature from 1838 to 1964, whether it was a Council of Government under Crown colony rule or a Legislative Assembly/ Senate under responsible government, refrained from tampering with Ordinance I of 1838.
In 1965, Ordinance I of 1838 was amended by virtue of a legal notice in line with the Malta Independence Order 1964, Adaptation of Laws Order, 1965, Schedule Part I.
On that occasion, in the wake of Malta’s achievement of independence, the words “Governor” in the Ordinance were deleted and substituted in each case by the words “Prime Minister” (vide Index of Supplements to the Malta Government Gazette, Acts and Subsidiary Legislation 1965, B240).
In a nutshell, the powers that be in Malta have touched Ordinance I of 1838 only once by secondary legislation, which a Cabinet Minister may issue without need of resort to Parliament, to transfer the powers of the “constitutional” Head of State, a London-nominated Governor General, to the locally elected ‘political’ primus inter pares – the Prime Minister.
Ordinance I of 1838 is hitherto on the statutory books of Malta and Gozo (vide Chapter 6 of the last publication of the Revised Edition of the Laws of Malta of 1984 and www.justiceservices.gov.mt).
The rapport between the government and the Church has been excellent in the past years and has effectively rendered the Ordinance a dead letter. Nevertheless, Ordinance I of 1838 is still real and vivid 50 years after Malta achieved independence.
It provides that the Archbishop, or Vicar Capitular of Malta, is to appoint for the time being an administrator of vacant office or benefice in Malta with the consent of the Prime Minister and that if the Archbishop, or Vicar Capitular, fails to do so within 15 days of the vacancy occurring, the Prime Minister shall make the appointment alone per lapsum temporis (by lapse of time).
Ordinance I of 1838, with its substantively mediaeval contents coupled with invariably dangerous prospects, characterised by a senselessly short time limit in vacancy situations, is crying out for statutory expunction now that society in Malta and Gozo is for the total separation of powers between State and Church.
The newly set up Commission for the Revision of the Laws of Malta has rightly indicated to the government – and Parliament – that such a legislatively compendious albeit politically-loaded piece is to be scrapped once and for all.
Raymond Mangion is a university professor specialised in constitutional law and legal history