With controversial amendments to IVF legislation on the brink of a final vote in parliament, NGOs staunchly opposed to embryo freezing seem to have come against a brick wall.

The Attorney General reckons there’s nothing to indicate the amendments are unconstitutional, and the government has said that it’s prepared to push ahead with a third and final vote on the changes.

Pro-life groups appealed to the Office of the President over the weekend, in a last-ditch attempt to ensure the amendments never see the light of day. President Marie-Louise Coleiro Preca replied by saying the law requires her to assent to all laws adopted by parliament.

We took a look at Malta’s Constitution and spoke to constitutional lawyers to better understand what the President of Malta can – and cannot – do.

What's the President's role in the law-making process?

Article 72 of Malta's constitution is pretty clear: “The power of Parliament to make laws shall be exercised by bills passed by the House of Representatives and assented to by the President,” it begins.

It then goes on to say (in somewhat dated, gender-specific language) that “when a bill is presented to the President for assent, he shall without delay signify that he assents”.

So that’s that, then?

Not necessarily. Although the constitution makes it clear that the President of Malta must “assent without delay”, other options remain open to them.

They could, for instance, conjure up a last-minute meeting (or holiday) overseas to coincide with the signing of the bill. The bill would then end up on the acting president’s desk, and essentially becomes their problem.

Isn’t that just passing the buck?  

That’s a matter of perspective. If a President has moral qualms about a law but wants to respect parliament’s democratic duty to pass laws, excusing themselves from the process by scheduling an overseas trip is a neat way of sidestepping the issue.

Is that all they can do?

No. If a President feels so strongly about an issue that they cannot in any way endorse it, they always have the option available to people in any job – they can resign in protest.

If they did so, the Office of the President would become temporarily vacant until parliament nominates a new Head of State by simple majority. That process might take time, so in the meantime any pending legislation would be signed into law by the acting president.

But neither of those two options would stop a law from being passed!

That’s kind of the point. It wouldn’t be much of a democracy if one person could stop a law from being passed, just by virtue of the position they held.

Can’t the President just refuse to sign a law?

Well, yes. Doing so would be a breach of the constitution and therefore technically illegal, but that doesn’t mean it cannot happen. As one constitutional lawyer told us, “Breaking the law is always an option available to all. What constrains human behaviour are the consequences of doing so.”  

What is certain is that if that were to happen, it would immediately trigger a constitutional crisis.

Sounds serious. What would follow?

We’re in unchartered waters here, but logic suggests the government would then have three options available to it. It could try and negotiate with the President, to get them to back down and assent to the law. It could ask the constitutional court to order the President to sign the law. Or it could just sack the President and bring in a new one.

Sack the President? Is that even possible? 

From a procedural perspective, it wouldn’t be too difficult. The government could argue that a President who refused to sign a law democratically approved by parliament was guilty of “misbehaviour” and remove her from office through a simple majority vote.

Has a President ever refused to sign a law?

Kind of, and not even all that long ago. Back in March 2014, MPs were close to passing a bill introducing civil unions, when then-President George Abela told the Prime Minister that he would refuse to sign it if it landed on his desk.

How was that problem resolved?

Serendipitous timing, mainly. It was President Abela’s last month as Head of State, and his successor, Marie-Louise Coleiro Preca, had no such qualms about the law. By early April, she was Malta’s president. MPs passed the law, and she duly signed it.

So what’s most likely to happen in this case?

In all likelihood, the President will just sign the bill into law. She has met with both sides, conveyed NGO concerns to the government and asked the Health Minister to consult with the Attorney General.  

Although pro-life groups may argue that the President should fall on her sword and refuse to assent to the IVF changes, she can argue that she did all she could and is now just following her constitutional mandate.

Apart from which, refusing to sign would essentially sound the death knell on her public career and leave her in the political wilderness. Given that she has consciously strived to adopt a neutral position on the IVF amendments throughout the debate, she's unlikely to be willing to go that far. 

Is this battle over?

Not necessarily. In his advice to the Health Ministry, the Attorney General noted that anyone who felt a law was unconstitutional could always take the issue to Malta’s constitutional court. The NGOs which have been petitioning the President might well take up that suggestion and start focusing on an eventual courtroom showdown instead.