President Marie-Louise Coleiro Preca should have resigned if she really believed that the new IVF law would seriously damage the moral fibre of society, leading political commentator Ranier Fsadni believes.

The Sunday Times of Malta sought his reaction to the controversy which erupted following the President’s declaration that she had signed the Embryo Protection Act “solely out of loyalty” to the Constitution.

The law, which introduced embryo freezing as part of a routine IVF procedure, has prompted fierce criticism from pro-life groups who insist that life starts from the moment of conception.

Apart from the loss of life which may result when frozen embryos do not survive, concerns were also raised from an ethical perspective as the law also provides for the adoption of embryos, including by single and same-sex parents.

Following a fierce debate, these new provisions were approved by Parliament on Tuesday night with a clear split between government MPs who supported the changes and the Opposition who voted against. The Bill became law when Dr Coleiro Preca gave her assent on Wednesday. However, in a statement the President said that she only signed the Bill after seeking ethical, moral and legal advice.

“I want to make it clear that this decision in no way compromises my firm views and ethical values on human life, the family and the well-being of the unborn child from the moment of conception. I am signing the Act, in the form it was presented to me by the government, solely out of respect and loyalty to my country’s democratic process and to the Constitution, which does not confer upon me legislative functions except that of assenting to Bills when these are already approved by the House of Representatives,” the President said.

Dr Coleiro Preca’s stance stoked a debate, amid criticism that if she believed in the value of life so much, this should have superseded any other consideration including loyalty to the Constitution.

Asked if the President should have resigned, Mr Fsadni observed that her explanation was based on “a mistaken assumption”.

“She strongly hints she believes she signed a law that seriously damages the moral fibre of society. (Why else make a song and dance about why she signed?),” he told this newspaper.

However, had she resigned it would have caused no great damage. “There is no disloyalty in preferring to resign rather than sign a law one believes will do great damage. On the contrary, resignation entails full respect for the democratic process.

Resignation entails full respect for the democratic process

“If she really believes what she says, she should have resigned. There would have been no constitutional crisis. On the contrary, the Constitution would have worked smoothly in the appointment of a new President,” Mr Fsadni remarked.

This newspaper also sought the views of Democratic Party MP Godfrey Farrugia who voted against the Bill. He noted that the right to life is entrenched in Chapter 4 Article 32a of the Constitution.

“The process of embryo freezing inherently puts the life of a number of frozen embryos in danger,” Dr Farrugia said.

He noted that the ultimate test of any President of any country is when they are asked to choose between protecting their citizens at any stage of their life or simply remain uncommitted, leaving them to their own fate.

“Before anyone of us became citizens we were born and before we were born, we were a dependent vulnerable clump of cells. One cannot say that he or she is respecting a Constitution, the ultimate aim of which is to protect the citizen, if one approves by signing a law that will put the lives of many fellow human/would be citizens in jeopardy,” the PD MP said.

Dr Farrugia pointed out that unlike what Deputy Prime Minister Chris Fearne had said, the President was not “like any other citizen” as “no other citizen” can activate a law through their signature. The President is ultimately responsible for any law that is promulgated through his or her signature.

“Those who will never come to be because of this law were counting on the President to fight for them to have a chance like their fellow citizens. In this respect she let the vulnerable and voiceless down,” Dr Farrugia said.

Dean’s view: ‘Resignation does not solve anything’

The President had a number of options available to her when she was presented the Embryo Protection (Amendment) Bill for her signature:

(a) to sign the Bill;

(b) to resign;

(c) to pass on that duty to an Acting President;

(d) to sign but make a statement.

To resign does not really solve anything. If it all, it can be construed as an act of cowardice where the President would have simply passed on the buck to a successor in office. In this case, the government would have rushed to appoint another President willing to sign the Bill. This can take place even without the need of the Opposition’s approval as a President is appointed by means of a resolution approved in the House of Representatives by a majority vote. Resignation would just have simply delayed assent by a few days. It is a non-starter.

To pass on the responsibility to sign the Bill to an Acting President, in my opinion, would be tantamount to an irresponsible act on the part of the President as she would have simply shirked from her responsibility and failed to comply with her constitutional duties. I say so because in terms of the Constitution, the oath of office of President requires her to comply with the Constitution and the laws of Malta – she is, after all, the guardian of the Constitution, as she told the pro-life movements in her reply to their submissions.

Her constitutional duty is to sign Bills into law without delay

In her oath of office, there is no reference to conscience. In the case of the judiciary, their oath of office, in terms of ordinary law, does allow them to be guided as well by their conscience. But this is not the case with the President. Moreover, it would not have been fair upon the Acting President to be dumped with such delicate responsibility and have to decide a matter which the President has conveniently failed to decide. So, quite correctly, the President did not go for this option.

The President opted for the fourth course of action which is totally in line with the Constitution as she signed the Bill without delay. Indeed, the Bill was approved by the House on Tuesday and published in The Malta Government Gazette on Thursday meaning that she received the Bill passed by the House in this period and signed it in a very short span of time so much so that it was printed on Thursday. 

Now it must be stressed that the President, although part of Parliament, is not a Member of the House of Representatives. This means that she cannot participate in the discussion and eventual decision on any matter pending before the House. In this context, the President is merely an outside spectator. She is presented very much with a fait accompli. When she received the Bill for her signature, the Bill had gone through all the stages in the House of Representatives, had been discussed both within (and outside) the House and was voted upon in third reading.

The democratic process entails that it should be only Members of Parliament who partake in the legislative process. This is because the President is not directly elected by the people but by the House of Representatives and her constitutional duty is to sign Bills into law without delay once received in final version at her end.

When the pro-life movements raised serious constitutional issues on the Bill’s provisions, the only remedy available to her was not to attend a sitting of the House to discuss with Members of Parliament the text of the Bill but to draw the attention of the competent minister to the gravity of the constitutional issues identified in the submissions made by these movements so that he seeks legal advice.

To his credit, this is in fact what Deputy Prime Minister Chris Fearne did, even though one might not necessarily agree with the advice tendered by the Attorney General, so much so that a court action has been instituted by Tonio Azzopardi in relation to the constitutionality of that law. But this, of course, is another matter and up to the competent courts of constitutional competence to resolve.

According to the statement published on the President’s website, after signing the Bill, she also wrote to the minister piloting the Bill, Dr Fearne, in terms of Standing Orders, to convey her message to the Speaker on the contents of that Bill to the House of Representatives so that the Speaker could read it to the House. 

In doing so she acted fully within the ambit of the law respecting both the constitutional provision to assent to the Bill without delay and forwarding her message on the Bill to the Deputy Prime Minister and Minister of Health so that he complies with Standing Orders. This is after all the procedure that the Standing Orders allow for communication between the Head of State and Members of Parliament. Needless to say, in such communications the Head of State is free to express herself on the subject of her messages in full observance of the constitutional freedoms of speech and conscience.

It must be noted as well that the Standing Orders are part and parcel of Constitutional Law as they are made by the House of Representatives by authority of the Constitution.

The President did have another constitutional option apart from the non-option of resigning – that of signing the Bill as she is obliged to do in terms of the Constitution –and to make a declaration thereupon in terms of Standing Orders. 

I see no difficulty with the adoption of this constitutional procedure by the President of Malta once it is allowed by and under the Constitution.

Professor Kevin Aquilina, Dean, Faculty of Laws, University of Malta