Not tonight

The enactment of the European Union Act constituted the legal pinnacle of 25 years of political history. Ever since the Nationalist Party, way back in February 1979, approved a motion proposed by its leader recommending Malta's membership of the European Union under the right conditions, the political debate in Malta has been overshadowed by the issue as to whether our country, European in culture history and character, should proceed with further integration with the new Europe in the making.

Passing the law in parliament without any division called by the opposition on the second reading of a Bill authorising the ratification of the treaty in virtue of which Malta will become a member of the Union next May, must have brought particular pleasure to the prime minister who piloted the Bill. Here was the most important Bill presented for consideration by parliament since the Malta Independence Constitution Act, declaring EU law to be directly applicable to Malta and, subject to our constitutional provisions, elevating it to a grundnorm of our legal system, and the opposition, whose anti-EU stand has been hoisted on its flagship mast for the past two decades, does not register its formal disapproval.

The parliamentary debate centred around three main issues; parliamentary scrutiny of EU legislation, supremacy of the Maltese Constitution and the power of the executive to align Malta's legislation with the EU acquis present and future with the least hassle possible. I believe the government has succeeded in steering a Bill through parliament guaranteeing all three points in the country's interests.

The prime minister's right to declare by order any future EU-related treaty to be part of Maltese law has been assured. The opposition, at one point, had insisted on each order being fully discussed in plenary session without any restriction on the number of sittings for such purpose. The mature compromise reached during the debate was to discuss such order prior to its promulgation in the Foreign Affairs Committee of the House for a maximum period of 15 days; following the expiration of such period the order is sent immediately to the plenary session of the House where a vote will be taken, without debate.

This compromise reached by discussions inside and outside the House, guarantees parliamentary scrutiny and, at the same time, a workable method for the government to implement, without any danger of filibustering or undue obstruction, treaties which it ratifies and are EU-related.

The only clause on which a division was called was clause three, which establishes that EU-related treaties, present and future, constitute part of Maltese law and prevail over any ordinary law incompatible with them.

Of course, since the European Union Act is an ordinary law in the legal norm hierarchy, it is always subject to the supremacy of the Maltese Constitution enshrined in article six of the Constitution of Malta and article 65 which established parliament's power to enact legislation subject to the provisions of the Constitution.

The opposition wanted to declare in an ordinary law the supremacy of the Constitution, which is established in the Constitution itself for all laws, thereby provoking the inevitable question: arguing a contrariu sensu are there some laws which are subject to the Constitution and others which are not?

Much has been said about the government's withdrawal of clause eight which granted to the Prime Minister the power by order to amend any law in Malta for a limited period of 12 months from May 1, 2004 in order to align it to EU law and/or to remove any errors in grammar, orthography etc in any other law. In fact, this withdrawal was made only after legal advice was sought that clause four already grants the right to any member of the executive or other authority empowered by the Prime Minister to issue by order any regulation implementing in Maltese law any regulation, directive or decision of the European Union.

Consequently, the powers contained in clause eight could be exercised under clause four, provided such powers are used exclusively for an EU purpose. Regulations made under clause four can amend any instrument having legal force in Malta.

It was also decided administratively that the government would see to it that draft EU legislation be discussed in the Foreign Affairs Committee and an order so issued would be subject to parliamentary scrutiny as any other subsidiary legislation.

This short cut in parliamentary approval of laws was necessary in order to enable the country to be able to align its legislation with future EU directives and regulations. It is only natural that since Malta will be represented in and part of the law-making institutions of the Union, the Commission, Council, and parliament, it is also bound by EU norms which would have been approved at EU level. Members belonging to a group are bound by the rules of their association. Otherwise, the entire EU legal structure would be futile.

Reference is often made to the "diktat" of Brussels; that Brussels will order this or that. The laborious law-making process of the Union which I have witnessed first hand at the Justice and Home Affairs Council meetings I have attended, gives any member state the right to state its views, register its objections and propose amendments over a period of time in all kinds of working groups, steering committees and meetings of permanent representatives. Only on rare occasions is a vote taken and most decisions are carried by consensus.

Therefore, Brussels is us. We are no longer dealing with a foreign institution and, therefore, no longer conditioned by the "them and us" syndrome. We are now part of the system. We shall participate in all its institutions.

Malta will appoint its own Commissioner, have its own judges sitting in the European Courts; it will have its rightful place in all Council meetings (indeed, we are already attending these meetings as active observers). In all formal and informal sessions of the European Council, our Prime Minister will participate not as a visiting guest but a rightful member. When giving effect to EU legislation, we shall be implementing our own legal norms.

The European Union Act is a milestone in our legal history. In years to come, when everything with the passage of time would have peacefully settled, we or our successors shall look back at this moment with pride. As happened with left wing parties in Greece and the United Kingdom, the local party in opposition will also participate in this new process, become part of it, shed its Euro-scepticism and, who knows, might also become the front bearer of the Union flag. Until that happens, and bearing in mind the recent accusation hurled at the prime minister of having Napoleonic tendencies, we have to satisfy ourselves only with one opposition position today: Not tonight Josephine.

Dr Borg is minister for justice and home affairs