Article I-6 of the Constitution of the European Union is incompatible with "entrenched" Section 6 of the Constitution of Malta.
Article I-6 of the EU Constitution reads: "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States."
"Entrenched" Section 6 of the Malta Constitution reads: "Subject to the provisions of subsections (7) and (9) of Section 47 and of Section 66 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
Subsections (7) and (9) of Section 47 of the Malta Constitution refer to laws existing prior to the Constitution and which were exempt from the application of Section 6, and Section 66 refers to the qualifying votes needed to amend certain sections of the Constitution.
Quaere: if a provision of the EU Constitution or an EU law or part of it is inconsistent with a provision of the Malta Constitution, which provision or law would prevail or have primacy?
The EU Constitution says that its provision or law adopted by one of its institutions shall have primacy, while the Malta Constitution says that its provision shall prevail and the provision of the EU Constitution or of the EU law shall, to the extent of the inconsistency, be void.
It is submitted that until "entrenched" Section 6 of the Malta Constitution is duly amended according to the provisions of the Malta Constitution, the provisions of the Malta Constitution shall continue to prevail over the provisions of the EU Constitution and of any EU law, notwithstanding the proclamation of "primacy" contained in Article I-6 of the EU Constitution.
In view of the unfounded proclamation of "primacy" of the EU Constitution and of the EU laws over the Malta Constitution (apart from other very cogent reasons), it is preposterous for the Prime Minister of Malta to sign the Treaty establishing the EU Constitution. The Prime Minister, on assuming office, took the oath of allegiance solemnly swearing to bear faith and allegiance to the Constitution of the Republic of Malta.
It is no less reprehensible for the President of the Republic of Malta, who on taking the oath of office, solemnly swore to the best of his ability to preserve, protect and defend the Constitution of Malta, to approve and sign the law ratifying the Treaty establishing the EU Constitution.
The same objections apply to the members of the House of Representatives. They must be fully aware that they do not have the people's mandate to subject their country's Constitution to the EU Constitution and to future EU laws.
When the members of the House of Representatives are asked to ratify the EU Constitutional Treaty, they should remember that the Maltese electorate could not, in 2003, have approved the EU Constitution which was agreed to on June 18, 2004, let alone EU laws to be enacted in the future.
If this notwithstanding, the House of Representatives were unfortunately to approve the EU Constitutional Treaty, it is vitally important that at the final voting of the bill for the Act of Parliament ratifying the EU Constitutional Treaty, it is not supported by the vote of two-thirds of all the members of Parliament.
If less than two-thirds of all the members vote in favour, it would not be held that "entrenched" Section 6 of the Malta Constitution has been subverted by the approval of Article I-6 of the EU Constitution.
In this way the supremacy of our Constitution would not have been betrayed.