To annul or not to annul

On February 4, the President, on the government’s advice, issued the Individual Investor Programme of the Republic of Malta Regulations, 2014 by means of Legal Notice 47 of 2014.

Amongst other things, the legal notice, through regulation 16, pulled the rug from under the Opposition’s feet and reduced to naught their motion in the House of Representatives to annual Legal Notice 450 of 2013, the Individual Investor Programme of the Republic of Malta Regulations, 2013. This means that the 2013 legal notice is no longer on the statute book and is a dead letter once it has been revoked by the government without the need of going through Parliamentary motions.

The question this raises is whether a revoked legal notice, not in part but entirely, can be subject to a discussion and consequential vote in the House of Representatives on the basis of a negative resolution procedure in terms of the Maltese Citizenship Act? A distinction has to be made between a negative resolution procedure tabled in terms of the general law – the Interpretation Act – and another tabled in terms of a special law – the Maltese Citizenship Act.

Doctrine has always stated that the special law wins over the general law (lex specialis derogat legi generali) should there be a conflict in interpretation between both laws. This teaching remains current in this area of the law.

The general law, however, is not identical to the special law. On the contrary, the Interpretation Act allows the House of Representatives to annul or amend a subsidiary law while the special law under examination allows only an annulment of the subsidiary law.

The Private Members’ Motion filed by Nationalist MP Jason Azzopardi on January 13 with regard to Legal Notice 450 of 2013 requests the annulment of the said legal notice, not its amendment. In this respect, the Nationalist Party’s request is in line with the special law, the Maltese Citizenship Act. However, the point made by the PN during a press conference on February 5 to move amendments to Legal Notice 47 of 2014 (rather than annul it) is not allowed by the Maltese Citizenship Act.

The above doctrinal principle is enshrined in the law in black and white.

The Interpretation Act, in article 11(3), states that “where the principal law conferring the power to make subsidiary legislation makes different provision in respect of any of the matters aforesaid (that is, the annulment of a subsidiary law), these provisions shall apply to any subsidiary legislation made by virtue of those powers in preference to the provisions of this article in respect of those matters”.

This means that once the Maltese Citizenship Act has a specific provision dealing with the annulment of regulations made in terms of article 24(1) of that law, then it is that provision not the Interpretation Act, article 11, which applies.

In terms of article 24(2) of the Maltese Citizenship Act, there is a 20-day period from the date the regulations are laid on the table of the House (not from their publication in The Malta Government Gazette) to annul the regulations. It is also provided that “there shall be included in the computation of the said 20 days any period of four or more consecutive days intervening between any two consecutive sittings of the House of Representatives”. If Parliament sits every Monday, Tuesday and Wednesday of each week, then the 20 days would have to be spread over seven calendar weeks.

As the Romans used to say, dead men don’t bite

The power enjoyed by the House is to resolve “that the regulations be annulled” in which case “they shall thenceforth be void”. But what happens if, after the motion to annul regulations is presented but still not debated and voted upon, the government revokes these regulations? Can the motion on the revoked regulations be discussed and voted upon? Does the revocation of the old regulations supersede the motion to annul these regulations?

The answer has to be in the negative for the first question and in the affirmative for the second because the House cannot do the impossible (ad impossibilia nemo tenetur) due to this supervening impossibility. There is no longer a cause for action. The Civil Code teaches that “an obligation without a consideration... shall have no effect” (article 987).

Again, if there is no legal notice in force, how can it be annulled? What does not exist cannot produce rights to give rise to remedies. What does not exist cannot bear any effect at law (quod nullum est, nullum producit effectum); that which does not exist cannot be confirmed (quod non est, confirmari non potest). As the Romans used to say, dead men don’t bite (mortui non mordent).

It is a matter for the House Business Committee to decide how to proceed on this motion related to a dead legal notice. But the point remains that the revocation of Legal Notice 450 of 2013 has brought about the death of the PN’s motion to annul the Individual Investor Programme regulations.

Naturally, a fresh motion can be presented on the new legal notice to have it annulled, but not to amend it, because the 20-day period has not elapsed. However, whether this should be done or not is a political question left to the PN to ponder upon.

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