I received this email from a reader and with his permission, I am using it.
He wrote:
"I have been following the divorce saga ever since it was catapulted to the forefront of national debate following the presentation of the 'infamous' private member's bill.
Your contributions on the subject, I have followed with interest, not least in view of the fact that I happen to concur with your position that divorce ought not be a matter to be subjected to a referendum - I am, indeed, an adherent to your Anti-Referendum Movement (although freely admit that I am still to send off my membership fee to my favourite charity).
Allow me to state my position: I am not in favour of divorce. However, please note the use of the pronoun "I"; this is my position, and it does not follow that it should also necessarily be the position to be adopted by my neighbour, or friend, or any other Tom, Dick or Harry. From this stems my belief that divorce should not be introduced - or not introduced, for that matter - based on the will of a majority. Precisely because divorce is a sensitive issue, essentially personal, I cannot presume to know better about other people's motivations in seeking to be granted one solely on the mere basis of the fact that I happen not to condone it.
However, it now rather seems that there may not be a referendum after all.
Side-stepping for a moment the fact that the Anti-Referendum Movement may have carried the day after all, I have attempted to ruminate on the latest developments from the point of view of procedure.
Please consider the following (extracted verbatim from the PN committee's motion):
"a) Parliament should, as soon as possible, discuss the Bill for the introduction of divorce.
b) Should the Bill be approved by a majority of the House, the coming into force of the law would be conditional to approval by referendum, held within two months of approval of the law by Parliament."
Hence the steps being advocated here would be:
Step 1 - Parliament discusses Bill for the introduction of divorce.
Step 2 - Parliament votes on Bill for the introduction of divorce.
Step 3 - If Bill for the introduction of divorce is approved by a majority of the House, a referendum is thereby held to confirm or otherwise reject said vote of the House. If Bill for the introduction of divorce is not approved by a majority of the House, no referendum is held.
The following is extracted verbatim from the Constitution of Malta - Chapter IV (Parliament), Part 2 (Mode of exercising legislative powers): "72.(1) The power of Parliament to make laws shall be exercised by bills passed by the House of Representatives and assented to by the President.
(2) When a bill is presented to the President for assent, he shall without delay signify that he assents.
(3) A bill shall not become law unless it has been duly passed and assented to in accordance with this Constitution."
The Constitution makes no mention of a process whereby "the coming into force of the law would be conditional to approval by referendum" after a Bill is approved by a majority of the House. Once a bill is approved it is submitted to the President of the Republic for his /her approval. There are exceptions to this process, provided for in article 66, sub-article 3, which, however, makes no mention of divorce. It is very specific in its remit (again, to quote verbatim from the Constitution):
"(3) In so far as it alters -
(a) this sub-article or sub-article (4) of this article; or
(b) sub-article (2) of article 76 of this Constitution [...]"
Neither sub-articles 66(3), 66(4) nor 76(2) of the Constitution mention divorce.
Now, the Referenda Act, Part II (Object, Nature and Date of a
Referendum) states:
"3. (1) Persons entitled to vote in a referendum under this Act will be called upon to declare:
a) whether they approve proposals set out in a resolution passed for that purpose by the House and published in the Gazette; or
(b) whether they agree that a provision of law should be abrogated in accordance with the provisions of Part V of this Act, as the case may be.
(2) Persons entitled to vote in a referendum under the Constitution will be called upon to declare whether they approve a bill for an Act of Parliament submitted to them for the purposes of article 66(3) of the Constitution."
So, a referendum may be held following a resolution of the House (i.e. 3(1)(a), to abrogate a provision of law (i.e. 3(1)(b) or in the context of the stipulation of sub-article 66(3) of the Constitution.
Hence, my (entirely modest, un-educated, matter-of-fact) interpretation is that as long as the PN's motion insists on having a Bill debated and voted upon by the House first, and then holding a referendum on the basis of the outcome of that vote, this may not exactly be a course of action that is constitutional. For if that Bill is approved, then it has only one way to go: to the Palace of the President, not to 'Main Street' (i.e., the people, so to speak).
If a Bill on divorce is voted upon in the House and accepted then it is the law of the land, and any referendum to be held afterwards can only be abrogative in nature.
The way the PN's motion is worded seems to reflect the PN's position (and, one presumes, ardent hope) that the Bill ought to be defeated, because if it is not, and a referendum is thereby held, then there is a breach of the prescribed constitutional process.
Additionally, the PN's motion bestowing a different treatment to a bill voted upon by the House, depending whether this Bill is approved or rejected. Needless to add, this sets a tricky precedent, and tends to assign an ad-hoc component to the parliamentary approval process.
My question is: as long as the political will is to hold a referendum, cannot Parliament discuss and present a resolution - as opposed to a Bill - and the referendum held after the resolution (as advocated by sub-article 3(1)(a) of the Referenda Act?
I would be grateful of having your thoughts on the above, and thank you beforehand for taking time to go through my e-mail.
Kind regards,
Pierre André Aquilina
Lija"
Thought-provoking, or what? Any Constitutional scholar out there willing to have a bash?