A sham ratification

Since 1983 ratification of treaties in Malta can be effected in two ways, by Resolution of the House or by an Act of Parliament. The Ratification Act (Chapter 304, Laws of Malta) regulates choice according to subject matter. If the treaty is only concerned with the relationship of Malta with "any multinational organisation, agency, association or similar body" A3. (2) (b), a Resolution of the House is sufficient.

If the treaty concerns Malta's "status under international law or the maintenance or support of such status, or the security of Malta, its sovereignty, independence, unity or territorial integrity" A3. (2) (a), then an Act of Parliament is necessary for ratification.

This is even more justifiable if the Treaty concerns "any provision which is to become, or to be enforceable as, part of the law of Malta" A.3 (2) (a), where an Act of Parliament is obviously necessary because of Malta's dualist perception of international law and municipal law. Indeed A3. (3) stipulates that "No provision of a treaty shall become, or be enforceable as, part of the law of Malta except by or under an Act of Parliament".

Surprisingly, the Government purported to ratify the Treaty establishing a Constitution for Europe (TCE), signed in Rome on October 29, 2004, merely by a simple Resolution of the House - not by an Act of Parliament. Did not this treaty introduce for the first time ever a purely European mutual defence system of rights and obligations in Article 1-41 (7), which definitely concerned Malta's security? Did not this treaty proclaim itself to be the highest law in Europe in Article 1-6, higher than any other law in Malta including our Constitution, which (A. 6) declares itself to be our supreme law? So how was this highest law going to be made enforceable in Malta by a mere Resolution?

Even stranger was the Resolution's 'authorisation' of the Prime Minister's order to bring the (TCE) into effect, to be "considered as one" with Malta's 2003 EU Accession Treaty ratified by Parliamentary Act (Ch. 460) in June 2003. How could the PM rely on the power delegated to him by that Parliamentary Act (Ch. 460; A 2.2 ) to issue a Legal Notice to "consider as one" with it the new Constitutional Treaty which changes it and even repeals it as per TCE A-IV. 437? Since when has delegated power become more powerful than the delegating Act itself?

This shoddy Resolution together with its accompanying Legal Notice cannot effectively be held to have ratified the TCE according to law in Malta. The TCE was already killed by the majority of French and Dutch voters in their referenda. Malta's voice will be added to theirs in further puncturing the required unanimity TCE A IV-447 (2). Resorting to this sham ratification of a dead treaty was only done for political convenience.

Had the newly found unanimity been genuine, the proper way of ratifying the TCE, enabling it to be enforced as law in Malta, would not only have required an Act of Parliament ratifying it. Amendments to our Constitution, section by section, to consolidate it with the TCE, would have been necessary, for example, to make the TCE the supreme law in Malta, to replace our neutrality sections with the mutual defence obligations, etc. That none of this took place raises the fundamental question if unanimity was genuine. Hardly. Most Maltese and Gozitans seriously doubt it.

The Government itself did not believe unanimity was genuine. Indeed, it did not take the risk to ratify properly. It could not rely on the necessary two-thirds majority to replace these entrenched clauses. So the TCE has not been 'transformed' into a part of our municipal law. It is our Constitution which is still Malta's supreme law. No Resolution or delegated legislation can replace our Constitution with anything, let alone a dead TCE.

So the Government's noble aim of reviving the ratification process, of sending a positive signal to Europe, of boosting the Yes vote in Luxembourg's referendum, is just a charade, mere spin, a cynical attempt to sell to the EU Commission "fool's gold".

The Opposition's aims, far less noble, were far costlier, inspired as they were by the leadership's struggle for its own survival. First the leadership's senseless and capricious U-turn to Yes on Europe, in advance, whatever form of ratification would be chosen, was highly suspect as well as short-sighted.

Was there a deal with the Nationalists? What was the deal? Was it a good deal? Was this U-turn expedient when there was increasing scepticism of EU membership?

The majority in the parliamentary group had already complied with the leadership's wishes by mid-May publicly announcing it would vote Yes on the TCE without reservations. Charges of complicity and betrayal understandably increased after the French and Dutch No when the leadership's commitment to Yes paradoxically intensified.

Many more press releases from the various party units chanted Yes to Europe, prejudicing the extraordinary general conference's free and fair debate and vote. With hardly any discussion of the TCE itself, the question with which most conference delegates were blackmailed was whether they really wanted a Labour victory. If yes, vote Yes for Europe. Never mind that our MPs' Yes in ratifying the TCE would not be genuine but a mere sham.

Secondly, the Opposition's list of substantial reservations logically pointed far more strongly in the No than in the Yes direction. Indeed in the short Parliamentary debate on Wednesday, the Prime Minister did not accept the Opposition Leader's invitation to join forces and adhere to them together: the Reservations remain unilateral and self-imposed, binding only Labour, repeat, only Labour. The Government's Resolution was voted on and secured unanimous approval nem. con. in its original form, without any amendments whatsoever from the Opposition.

The Vienna Convention on the Law of Treaties (1969) contemplates various phases in the treaty-making process thus: "signing, ratifying, accepting, approving or acceding to a treaty". In each of these phases, including the ratifying stage, a "'reservation" may be made by a State, underline, by a State. It would have been a totally different story if Labour had succeeded in convincing the Government side of the importance of these reservations to such an extent that the Government side accepted them too and made them part of the Government's ratification Resolution.

That would have introduced a new element altogether as a 'bargaining diplomatic lever' in the TCE's present (and potentially revised) Ratification process which the other 24 members would have had to take notice of. Whether at a diplomatic level such a 'consolidated' Resolution with reservations guaranteed acceptance or whether acceptance was at all necessary by the other 24 member states is a moot point. The International Law Commission's meticulous guidelines developed over the last decade might here be illuminating.

In reality the Government may well boast that 'Vaticanese Malta' (as it is increasingly known in Brussels) triumphed. For, most ironically, it is not the Opposition but the Government with the support of the Opposition's votes in Parliament as a whole, that has entered the following "reservation" (in my italics) to the TCE in its Ratification resolution: "Whereas in the Treaty establishing a Constitution for Europe, EU member states drew their inspiration from common European values which Malta upholds, including religious beliefs, which for Malta, in particular, means the heritage of Christianity in Europe."

The political energies of Malta and Gozo are increasingly being wasted on wheeling and dealing by Government and Opposition as most depressingly displayed by this sham ratification. Thank goodness for ginger groups like Alternattiva Demokratika, Front Maltin Inqumu, Campaign for Maltese Independence, Moviment Graffitti and Moviment Laburista Popolari, which do not engage in hoodwinking tactics and offer much better value to our people.

Dr Alex Sceberras Trigona is a former Foreign Minister (1981-87).