Malta could be navigating into constitutional unchartered territory by having former Labour leader Alfred Sant hold the position of Leader of the Opposition in Parliament.
Dr Sant resigned as party leader on March 10 after his third electoral defeat but stayed on as Opposition Leader, a position he could hold while Parliament was dissolved but which led to an anomaly when the House of Representatives reconvened on Saturday.
The Constitution, section 90 (4) is clear: "If, in the judgment of the President, a member of the House of Representatives other than the Leader of the Opposition, has become the Leader in the House of the opposition party having the greatest numerical strength in the House, or as the case may be, the Leader of the Opposition has ceased to command the support of the largest single group of members in opposition to the government, the President shall revoke the appointment of the Leader of the Opposition".
It continues in 90 (5) that the above "shall not have effect while Parliament is dissolved".
The Constitution also adds that whenever there shall be occasion for the appointment of the Opposition Leader, the President shall appoint the "... member of the House of Representatives who is the leader" of the largest single party in opposition.
The present situation hinges on whether the President should have revoked Dr Sant's appointment as Opposition Leader when Parliament reconvened or whether it was decided to bide time until a new Labour leader was elected on June 5.
When contacted, the reply from the President's Palace, the guardian of the Constitution, was dry: "As far as is known, Dr Alfred Sant is still leader in the House of Representatives of the opposition party and the appointment of a new Leader of the Opposition does not arise".
However, Austin Bencini, a lecturer in constitutional law at the University, said that unlike the appointment of a Prime Minister by the President, the Leader of the Opposition is clearly described by the Constitution as "the leader" of the largest opposition party in the House of Representatives.
This, he pointed out, is in contrast with the appointment of the Prime Minister, where the Constitution provides that the President must appoint the "person" who in his judgement is best able to command the majority of the House.
The Constitution would oblige the President to take the initiative and appoint a new Leader of the Opposition if a new party leader is appointed and is at the same time a member of Parliament.
Dr Sant said he has been Leader of the Opposition since he took the oath, back in 1998 and he will retain this position until the new leader was chosen on June 5.
"Once the party leader is chosen, that person will take the oath before the President and is then appointed," he said.
He explained that a similar situation had arisen in 1992 when Karmenu Mifsud Bonnici had kept his position as Opposition Leader after the general election, until Dr Sant himself was appointed and took over.
"The complication this time round is that the Labour Party decided to push back the date for the leadership contest and, in the meantime, Parliament reconvened. In 1992, I had taken the oath before Parliament had convened, so that's the only complication," he said.
The Chamber of Advocates was also asked for its opinion on the matter, but its president, Andrew Borg Cardona, said the chamber had not taken a stand and the matter had not been discussed.
From a personal perspective, he did say that the Constitution did not appear to contemplate a situation where there was an Acting Leader (of the only opposition party) in place.
He believed it had to be assumed that the President (in exercising his "deliberate judgment" under section 85) took into consideration all the relevant circumstances and information, not all of which was necessarily public. "The President concluded that Dr Sant should be appointed as Leader of the Opposition.
"Once there was no contestation of this appointment from any quarter, it appears the appointment was acceptable to all concerned," Dr Borg Cardona said.
"To my mind, this satisfies the Constitution in spirit, once the letter of the law is somewhat lacking," he added.
However, Malta could still face the anomalous constitutional situation after June 5, where the leader of the largest party in opposition would not be the Leader of the Opposition in Parliament for a few weeks or perhaps even months.
This could especially be the case if George Abela, who is running for leader, is chosen because he had expressed the wish that he would like to spend some time as a party leader before becoming an MP in order to get the party's house in order.
Would this raise an unconstitutional situation? It is a situation where an anomaly has surfaced.