I read with great interest the piece penned by Professor Ian Refalo ‘Power through the ballot box’ where, inter alia, he states that “the removal from office of the prime minister is through a vote of lack of confidence in the House of Representatives and not otherwise”.

I entertain a different view.

The Maltese written Constitution does not allow presidential removal of a Prime Minister only on the ground of lack of confidence in a prime minister expressed in the House of Representatives.

Further, foreign state practice indicates otherwise as there have been cases abroad where a prime minister was removed from office by the Head of State without a vote being taken in the legislature expressing lack of confidence in the premier.

Moreover, as Chief Justice Emeritus Dr Vincent A. de Gaetano correctly stated in his interview on newsbook.com on December 23, 2019, the President enjoys ‘implicit powers’ not written down in the Constitution. Judge de Gaetano was alluding to an interpretation of the Constitution consonant with the Judicial Committee of the Privy Council’s necessary intendment doctrine or the European Court of Human Rights’ and Maltese Constitutional Court’s judgments on the living instrument, which apply the spirit of the Constitution when the letter thereof is silent on the matter under consideration.

According to the Constitution of Malta, a prime minister may be removed from office by the President in terms of articles 80 and 81.

Article 80 of the Constitution requires that the prime minister enjoys continuous support of his parliamentary group not only on the date of his appointment but throughout the whole legislature until it comes to a definitive end. But once the prime minister loses that majority support in his own parliamentary group he has to be replaced by the President with another MP, normally drawn from the PM’s parliamentary group, enjoying that support.

This procedure does not necessarily require dissolution of the House unless none of the other MPs are willing to agree on an alternate MP who is willing to assume the functions of office of prime minister. However, should such an MP agree thereto and is capable to muster majority support in the House, then the President must appoint him prime minister.

Under article 80 of the Constitution dissolution of the House is not required, nor does the Opposition (or any other MP) have to call in the House a vote of no confidence in the Prime Minister for the provisions of article 80 to be triggered; nor does the House have to be in session; nor does the prime minister need to resign from MP.

Article 80 of the Constitution requires that the prime minister enjoys continuous support of his parliamentary group

This is the point I made in my article ‘President, you have a constitutional duty to act’ (December 14). No reference was purposely made there to article 81 of the Constitution regarding lack of confidence in the PM expressed by the House as it was irrelevant to the current constitutional crisis.

However, the President, during the TVM news bulletin of December 20, 2019, restricted the removal of a prime minister only and exclusively to a vote of no confidence in the House in terms of article 81 of the Constitution, when the Constitution, in article 80, also allows for another case of removal of a PM but with no reference to the House.

Article 81 contemplates the case of a vote of no confidence being adopted whereby the President removes a PM on this ground. This vote is normally triggered by the Opposition but this is not the case today, for the Opposition does not enjoy majority support in the House, has not triggered such a vote in the House and, all things being equal, should not win such a vote were one to be taken.

Therefore, what is being discussed in today’s scenario is not the dissolution of the House and the consequent calling of a general election but the removal and substitution of a prime minister with another government MP capable of mustering majority support. These are two separate and distinct constitutional matters.

What is therefore relevant to the current constitutional crisis is not article 81 (vote of no confidence in the PM) but article 80 (lack of majority support in the House). This raises two fundamental questions.

First question: Should the President convene a meeting of the Labour Parliamentary Group to determine whether the current PM still enjoys the support of the group, or should he rely on past votes of confidence in the PM expressed both by the group, whether in Cabinet or in the House, and even by voters in general, local and EU parliamentary elections that have taken place since 2013? Or should the President shift his constitutional responsibility onto the Labour Parliamentary Group as he did through the Department of Information press release of December 20, 2019, awaiting the group to approach him with a request to substitute the current prime minister with another MP?

The Constitution, in article 80, requires the President to be satisfied that the PM has a continuous majority support throughout the whole legislature. Hence, such obligation is placed on the President, not on the parliamentary group. The procedure cannot therefore be shifted upon the group once the Constitution does not entrust any one of them – but uniquely the President – with appointing and removing a PM from office in terms of article 80 of the Constitution.

In doing so, the President acts on his own initiative, not on the binding advice of the parliamentary group. To do otherwise would imply allowing the group to be supreme over the written constitutional provision thereby subjecting the supremacy of the Constitution to a constitutional procedure decided upon by a political party in breach of the constitutional provision.

The President can decide to look backwards in time, refer to the parliamentary, cabinet and electoral expressions of votes of confidence in the current PM and opt to take no further action than that. This was the view propounded in Dr Chris Cilia’s reply (‘No constitutional crisis’, Times of Malta, December 10) to my article on the ongoing constitutional crisis (‘This is a constitutional crisis par excellence’, December 7).

However, if doubt is raised as to whether the PM enjoys such support, it is only the President who can ascertain whether such majority support still exists today – not yesterday – in the Labour parliamentary group.

I do understand that this runs counter to the current procedure adopted by the Labour Party to appoint a new leader before Joseph Muscat vacates office, that the President might see it as onerous, if not embarrassing, upon himself to run counter to this procedure and that, were he to do so, the Labour Party may judicially or politically challenge even his authority to do so.

Nonetheless, if the President has taken an oath of office to “preserve, protect and defend the Constitution of Malta” he is constitutionally bound to ensure that an unconstitutional constitutional procedure adopted by the political party in government does not bring to naught – as is now happening – the constitutional provision in the fundamental law of Malta.

Part 2 of this article will appear on Wednesday, January 8.

Professor Kevin Aquilina is Head of Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta.