Prelapsarian

On purpose during past months, I avoided entering into controversy about the consultative referendum that the Fenech Adami administration wishes to hold over its bid for Malta to join the EU at all costs. In my view, the real issue was: what would be the impact on Malta of full EU membership? What alternative is offered by Labour's policy of partnership with the EU?

Regarding the proposed consultative referendum, I always felt that there is another way forward. Given Malta's constitutional set-up, and given that the present government's goal cannot be achieved in any case, before a new government has been installed, the best approach would be to hold general elections.

Malta is different from other applicant countries for EU membership in that the two mainstream political parties do not agree on that goal. In a general election, under rules established by the Constitution, the parties must thus present alternative programmes of government, for the electorate to choose from: one based on full membership, the other deriving from Labour's policy of partnership with the EU.

Consultative referenda are not subject to constitutional rules of the game: not in the way that they are run, nor in the way that they are interpreted. I stressed the point when Labour's parliamentary group met the President on New Year's Day.

At present, plebiscites amount to tools which the government of the day can deploy at will, and with full freedom to manipulate resources and opinions, without any proper democratic brakes. This is demonstrated by past Maltese experience.

In practice, though morally it should be different, consultative referenda do not bind even the government which organises them. When the Borg Olivier administration of the 1960s obtained a majority of yes votes among valid votes cast, in its 1964 referendum on a draft Independence constitution, it still did not stick to that text. Further important changes to the document that had been put to a referendum were negotiated subsequently with the British government. The Constitution that came into force was the amended one - without a new consultative referendum being organised.

Even less have consultative referenda bound oppositions which actually disagreed with their holding. In the 1955 referendum on integration, the then Nationalist opposition disagreed with the idea of the referendum, launched a boycott of it, and though there was a majority of yeses among votes cast, continued to fight against the integration proposal tooth and nail.

Following the 1964 referendum, Labour too continued to contest its results, by which on the basis of a simple majority in the referendal vote, clauses were inserted in the Constitution that required a two-thirds majority in parliament to be amended later. That led to the political crisis of 1973-1974, and to drastic amendments of the Constitution, that were passed through parliament and not by referendum.

Both the 1955 and the 1964 consultative referenda were organised by the government of the day, against the express wishes of the then opposition.

When on Friday, January 17, I received the prime minister's letter regarding his proposed consultative referendum and the forthcoming general elections, my first reaction was to consider it as just another gimmick. He proposed that a consultative referendum be held in March (was this a proposal or a decision already taken?); that he and I agree to tell people to vote aye or nay in the consultative referendum; and for us to agree on a limiting date by which general elections would be held.

I agree that uncertainty has spread in the country at large, and in the national interest it must be assuaged. Indeed, Labour argued that it should be ended forthwith, by holding an immediate general election.

How best in the circumstances could one act in the national interest, and in a spirit of compromise? Such a compromise needed to take into account Dr Fenech Adami's personal insistence to hold a consultative referendum on the question he had proposed to parliament, even if general elections could settle the question automatically.

What were the causes of uncertainty that needed to be tackled?

In the first place, the proposed consultative referendum covered a period that would follow the latest date by which general elections are due to be held. Accession to the EU cannot happen before April 2004. So with its current plans, the present administration is proposing to influence the decisions of a subsequent administration, through a consultative instrument that has no constitutional anchorage.

Secondly, there could result a contradiction between the interpretation put on the outcome of the consultative referendum, and that of the elections. Actually, such a contradiction is potentially the biggest source of uncertainty at present.

Thirdly, uncertainty could continue to prevail due to the fact that no ground rules exist to determine what makes a referendum binding, not just on the side which organises it, but across the whole political spectrum.

If (whichever party is in power) the government "loses", it would retain the right to hold another referendum to overturn the first one, as happened in Ireland. If the opposition "loses", it could still stick to its guns, and promise to persuade the electorate otherwise.

Having discussed these matters with my colleagues, on my personal responsibility, I wrote on Friday, January 24, to the prime minister, with proposals for discussion that could provide answers to all these questions, while laying the ground for a new consensus.

Here is what I suggested:

General elections should be held immediately. Thus, the incoming administration would be facing a period of government running to, and beyond April 2004, when the present administration wishes to take Malta into the European Union.

However, both political parties would agree as of now to hold, within a stipulated period following elections, a consultative referendum, on the question set by the present prime minister, as passed by parliamentary resolution on January 17. Three benefits would accrue from such an arrangement.

The consultative referendum would affect the period of administration for which the government already in charge would be responsible.

Less importantly, Dr Fenech Adami's insistence to hold a consultative referendum on the question which so interests him would have been met in his own terms.

Most importantly, for the first time in our history, the consultative referendum involved would no longer be just a tool of the government of the day. It would be held with the full agreement of the government and the opposition. Never has this happened before, surely not in 1955 or in 1964, when the plebiscites which were organised then were clearly projected as a stratagem by the government of the day.

Presumably, once a consultative referendum is endorsed by both mainstream parties, the option of boycotting such a referendum - which was actively taken up in the 1955 and 1964 plebisicites - would become inoperative.

A further proposal in my letter of last Friday to the prime minister concerned how to convert the consultative referendum into a binding one. This is uncharted territory.

While staying in line with the Constitution, both the government and the opposition can try to bring about a review of the result of any consultative referendum, no matter how interpreted. They can do so, among other things, by planning to organise another consultative referendum, as has happened in recent years, in Ireland and Denmark, or by reference to an electoral mandate.

Now, it is quite clear that the EU full membership issue impinges/could impinge on constitutional matters, which need approval by two thirds (66 per cent) of the members of parliament. To claim that a 50 per cent plus one vote of valid votes cast in a consultative referendum would have overriding say over such a constitutional provision - as the Fenech Adami administration is apparently claiming - is, clearly, democratic nonsense.

On the one hand, it is important to give people who feel strongly about a certain issue the feeling that they can still convince people to agree with them. This has been extremely important in recent years to the pro-EU lobbies in continental Europe. They kept on insisting to have as many chances as necessary in order to achieve what they wanted.

On the other hand, given the reality of the uncertainty that prevails locally, it makes sense to seek a solution regarding how to convert a consultative referendum accepted by both parties into one that is binding on all parties. What conditions could be proposed to make such a conversion - from consultative, to binding on all sides - reasonable?

In my letter of last Friday, the condition I proposed to the prime minister for discussion was that if either the "yes" or the "no" votes obtain, in a consultative referendum that has the backing of all parties, 60 per cent or over of valid votes cast, then all parties concerned would subscribe to that decision. They would not oppose it any more, or democratically seek to overturn it, at least till the legislature of five years is over.

The benchmark 60 per cent of valid votes cast would bridge over, between 50 per cent plus one of the popular vote which settles elections and two thirds of the parliamentary vote necessary for certain constitutional changes.

Unfortunately, the prime minister reacted to my suggestions in his now usual way: he climbed on his high horse and turned everything down. I suspect he did not even try to understand what I was really suggesting. The offer to meet and discuss was just ignored.

Some people told me I must still be living in prelapsarian times: it was naïve to expect that the prime minister really wanted some form of consensus to emerge. All Dr Fenech Adami wanted was to fish around and get to know what Labour would do once he announced the launching of the consultative referendum he has decided to organise, period.

How petty and partisan. Once again, the prime minister gave vent to an arrogance that grows by leaps and bounds. The compromise which I suggested as a basis for discussion could have helped to defuse the uncertainty that now prevails. The prime minister was not interested. His letter of January 17 was a gimmick.