Protecting the constitution is knowing it well. Knowledge is power. That the presidency is ceremonial is a self-inflicted misconception, due to extra non-constitutional, presidential commitments, in word and deed. Things could be different.
Article 85(2) says that: “Where by this constitution the president is required to act in accordance with the advice of any person or authority, the question whether he has in any case received, or acted in accordance with, such advice shall not be enquired into in any court.”
The issue whether the president receives or acts on the advice of any person or authority could involve residual or reserved powers.
The president may also act “in accordance with his own deliberate judgement” and in “his own discretion”.
Article 82(1) says that the president may assign to the prime minister or any other minister responsibility for government business. It is “may”, not “shall”. The president could assign prime ministerial responsibilities other than those the prime minister chooses for himself.
Article 76 says that the president may prorogue or dissolve parliament. If the president considers that the government could be carried on without prorogation or dissolution, the president may refuse to prorogue or dissolve parliament. Here “advice” shifts to “opinion” or “recommendation” (articles 73, 86 and 92(3)). Judicially confirmed complicity in fraud, as was the case over the hospitals deal, could warrant dissolution.
That the presidency is ceremonial is a self-inflicted misconception
In the UK, the prime minister was taken to court in 2019 for advising the queen to prorogue parliament. The Supreme Court ruled that the prime minister’s decision to prorogue parliament was unlawful. The power to prorogue parliament is exercised by the Crown. The court protected parliamentary sovereignty by holding that the prorogation was imposed upon parliament by the prime minister.
When government or ministers change, permanent secretaries and heads of governmental organisations normally resign or are replaced.
Similarly, a minister vacates office following the appointment or re-appointment of the prime minister. This could also apply to the prime minister on the appointment of a new president because it is the president who formally appoints the prime minister.
Article 77 says the president shall appoint, within three months after dissolution of parliament, the date for a general election. Failing agreement with the prime minister, the president could create a precedent and set the date him- or herself.
Other instances where the president acts on the advice of the prime minister abound. It is only the executive (prime minister), being one of the three organs of the State – the others are the legislative and the judiciary –who “advises” the president. Possibly, that is discriminatory, could create conflict of interest and, probably, is anti-constitutional.
Advice of the prime minister
An “advice” is counsel, opinion, suggestion, recommendation and request. It is not an order or command. The likelihood is that the advice of the prime minister is more facultative than mandatory. The constitution distinguishes among “shall act”, “may act”, “acts” and “acting”. The president shall or may act on or without the advice of the prime minister. Advice is so tenuous that it is dispensed with if the prime minister is sick or absent from Malta (art. 83) despite an acting prime minister deputising for the prime minister.
In the UK, the Privy Council advises the monarch on proclamations and orders in council. King’s counsels are distinguished lawyers appointed by the monarch. The attorney general is the principal legal adviser to the monarch. In Italy, the president has the general secretariat of the presidency. Malta’s president has none. S/he has to have a Council of State. In time, the Council of State could also perform to elect the president.
Assent of the president
According to article 51, parliament “shall consist of the president and a House of Representatives”. If the president refuses to sign a bill into law, the options are that the bill be withdrawn, replaced or amended, or that the president resign, or, notwithstanding, stay in office.
The president is bound to sign a bill into law “without delay” or, otherwise, be in breach of the Constitution. But parliament may not fault the president. Before 2020, parliament could dismiss the president by a simple majority.
Parliament can do that now by a resolution “supported by the votes of not less than two-thirds of all the members of the House”. The Opposition would not vote to dismiss the president and, at the same time, usher in a law it disagrees with.
Staying in office need not create a constitutional crisis. A constitutional convention is not binding. The situation could be beneficial for good governance. It may trigger a change in the Constitution or provoke a general election. The electorate is sovereign. The lesser of two evils principle prevails. It is constitutional relativity.
Reform of the Constitution
The president has an important task still pending: to spearhead and conclude the Constitutional Reform Conference.
A more representative electoral system and a better system of checks and balances are to be top priorities. The three organs of the State are to be completely autonomous. Britain is said to have a weak separation of powers because the cabinet of ministers forms a sub-set of parliament – 348 Conservative MPs and 21 ministers. In Malta, the Cabinet is a supra-set – 43 Labour MPs and 19 ministers.
It looks like cabinet is sovereign and rules over parliament.
For the president and country, the future beckons.
Victor Zammit is a lawyer.