Nationalist MP Francis Zammit Dimech.

The cash-for-citizenship scheme imposes no fiscal obligation on Maltese citizens and so it can be removed through a referendum, according to Francis Zammit Dimech.

The Nationalist Party MP insisted that when fiscal legislation was included in a list of laws that could not be removed by an abrogative referendum, the intention was to safeguard the State’s ability to collect taxes.

“Applying the principle of reasonable interpretation, the citizenship scheme imposes no fiscal obligation on Maltese citizens, rather it includes a fee foreigners have to pay to acquire citizenship and if anything it has been touted by the government as a means not to raise taxes on citizens,” Dr Zammit Dimech said.

It is a sentiment shared by Carmel Cacopardo, deputy chairman of Alternattiva Demokratika, the party that had originally floated the idea of holding an abrogative referendum to cancel the cash-for-citizenship law.

Their views contrast with those of Kevin Aquilina, dean of the University’s Faculty of Law, who writing in Times of Malta last month argued that the individual investor programme was a fiscal measure.

In a detailed legal opinion, Dr Aquilina had rescinded on his previous position, arguing that the monetary contribution linked to the scheme made it a fiscal measure and so exempt from being subject to an abrogative referendum.

Dr Aquilina had added that the scheme was also a fiscal measure because revenue from it was included in the Appropriation Bill that sets in motion the Budget measures.

The government estimated revenue of €30 million from the scheme in 2014 and half of the amount was included in the Budget.

But Mr Cacopardo challenged this argument, adding the individual investor programme was “first and foremost” a citizenship law and not fiscal legislation.

By the same logic, planning laws could also be excluded from an abrogative referendum

“By the same logic, planning laws could also be excluded from an abrogative referendum because planning fees have to be collected.”

Mr Cacopardo said the financial contribution made by foreigners to acquire a Maltese passport was a consequence of and not the primary aim of citizenship law.

The issue of whether an abrogative referendum can be held to remove the scheme was rekindled after talks between the government and the Opposition failed just before Christmas.

The Nationalist Party said it will continue contesting the law in Parliament by passing a motion and challenging the legal notices – it has not excluded supporting a call for an abrogative referendum.

But Mr Cacopardo was anticipating the argument made by Dr Aquilina because he believes it is the only argument that can be made in court to challenge any petition calling for an abrogative referendum.

If a petition does eventually get off the ground and the necessary signatures are collected – 10 per cent of the electorate – it will be the Constitutional Court that will have the final say on the legality of the referendum.

And if the saga does make it that far, Dr Zammit Dimech believes the court should apply “the test of reasonableness”.

The government has so far kept mum on the referendum option, which could pose a threat to the scheme, which it believes can reap €1 billion.

“The government is focused on delivering the programme which is linked to investment and agreed upon by the major stakeholders,” a spokesman for the Office of the Prime Minister said when asked whether the government had any advice from the Attorney General on whether an abrogative referendum was possible.

Although there has been no concrete push yet for an abrogative referendum, the likelihood is that any such move will be carefully considered for its political and legal ramifications.

Referendum exempt

The Referenda Act allows people to collect signatures and force a referendum to cancel laws or parts of them. But certain laws cannot be struck off by an abrogative referendum. These include: the Constitution, the law that transposes the European Convention for Human Rights, the General Elections Act, any fiscal legislation and international treaties.

ksansone@timesofmalta.com