Article 65(1) is the provision in the Constitution of Malta empowering Parliament to make laws. That part of the wording of article 65(1) of the Constitution which reads that “Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Malta...” finds a counterpart in at least 25 other national constitutions.

Once the key terms are left undefined in the constitutional instrument, Parliament should define them...- Kevin Aquilina

Such is the case with the following: section 28(1) of the Constitution of Niue; section 27 of the Constitution of Nauru; section 41 of the Constitution of the Commonwealth of Dominica; section 39(1) of the Constitution of the Cook Islands; section 48(1) of the Constitution of the Barbados; section 52(1) of the Constitution of the Bahamas; section 46(1) of the Constitution of Antigua and Barbuda; section 53 of the Constitution of the Republic of Trinidad and Tobago; section 37(1) of the Constitution of Saint Vincent; section 40 of the Constitution of St Lucia; section 109(1) of the Constitution of the Independent State of Papua New Guinea; section 16(1) of the Constitution of the Republic of Vanuatu; section 59(1) of the Constitution of the Solomon Islands; section 38 of the Constitution of Grenada; section 65(1) of the Constitution of the Cooperative Republic of Guyana; section 49(1) of the Constitution of Jamaica; section 45(1) of the Constitution of Mauritius; section 37(1) of the Constitution of St Kitts and Nevis; sections 51 and 52 of the Constitution of the Commonwealth of Australia; section 68 of the Constitution of Belize; section 39 of the Constitution of Brunei; section 86 of the Constitution of Botswana; section 63(1) of the Constitution of Namibia; section 91 of the Constitution of Canada; and section 106 of the Constitution of the Kingdom of Swaziland.

All these constitutions use, by and large, the same wording as that found in the introductory part of article 65(1) of the Constitution of Malta cited above.

In the case of the Constitution of the Cook Islands, it is further specified that the laws to be made by Parliament are known as “Acts”.

The Constitution of the Independent State of Papua New Guinea lays down that these laws are to have effect within and outside that country and may also be made for “the welfare of the people”. This constitution further provides that “no law made by the Parliament is open to challenge in any court on the ground that it is not for the peace, order or good government of Papua New Guinea”.

The Constitution of Namibia requires the laws to be made by Parliament “for the peace, order and good government of the country” to be made “in the best interest of the people of Namibia”.

So the introductory part of article 65(1) of the Constitution of Malta equally applies to the provisions mentioned in the above list in so far as the main source used for these constitutions is the Westminster model. Other constitutions do entrust their Parliament to make laws but do not qualify law making by the words “for the peace, order and good government of ...”

Normally, this is the case of those constitutions that do not follow the British model. However, our constitution is unique when it diverges from these 25 Westminster constitutions in one material aspect: the laws which the Maltese Parliament can make are restricted by the Constitution to those that are “in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations in particular those assumed by the treaty of accession to the European Union signed in Athens on April 16, 2003”.

This is a development introduced in our Constitution in 2003 when Malta was preparing to join the European Union. It is this latter part of article 65(1) that gives our Constitution a distinguishing feature.

Nevertheless, the question that arises is whether these additions to article 65(1) have clarified better Parliament’s law making powers or whether they have obfuscated it unnecessarily.

Once the key terms are left undefined in the constitutional instrument, Parliament should define them next time round it amends the Constitution or the Interpretation Act once the latter enactment can be used to interpret words in the Constitution. This is of the utmost importance to guarantee legal certainty and, at the same time, Parliament will know well its own boundaries when enacting legislation.

Indeed, the matters mentioned in this provision – full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations – are of such paramount importance to the governance of the state that they should not be left undefined but, on the contrary, be spelt out as clear as possible.

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