The powers and function of the Presidency

President Guido de Marco is interviewed by Dr Sandro Schembri Adami.

In the Portuguese Constitution the President is answerable before the Supreme Court for offences committed in the performance of his duties. Does this apply in Malta?

In your lectures on Criminal Law, you used to mention offences against the State, particularly where it concerns the Presidency, that is the difference between offences of the President in the execution of his duties as against those in his personal life. Would it be correct to say that in Malta the President is precluded from being arraigned in court on offences committed in the execution of his duties?

And what about the position of the courts when the President is acting on the advice of the Prime Minister in cases where the Constitution states that he has to do so and then there is nothing in the Constitution which gives a remedy to this?

We are talking about two different things. The President has an ex-emption from criminal action for offences resulting from his action. This means that if criminal action can be taken against the President in the function of his duties, then his duties may be hindered. This is present in our Constitution as well as in other laws concerning other Presidents worldwide, including France, Italy, Germany, Greece and Turkey.

Why? Because the aim is that if you interrupt the President's duties by means of a criminal action, you can effectively stop the function of the State. The President is the fulcrum of the State: a law is not effective unless he signs it, an appointment is not made unless he authorises it.

If the situation arises where this function is, in any way, halted for whatever reason, even in the case of mistrust, by means of criminal action against the President, then the opinion of constitutional judges is that it is not wise to proceed criminally against the holder of the political power, the head of the executive as per the Constitution.

However, civil action may be taken in a variety of ways. It must be noted that this is not meant to give the President any form of protection, but it is intended so that he may carry out his duties a lot better than if he has to worry about any form of threat.

You have mentioned similarities between the Maltese Constitution and that of other countries, including Italy. The Italian President is in office for seven years and may be reappointed. In Finland and France there is no time limit regarding the time a President may spend in office.

In Malta, it is clear that the President is appointed for only five years, as per a specific article in the Constitution which has been the basis of a discussion concerning former President Ugo Mifsud Bonnici. This is legally correct because it arises from the Constitution, but how politically appropriate is it that such an article in the Constitution is retained?

When we were drafting the amendments to the Constitution, we wanted the President's office to be related to experience. We had no experience of a republic, although we had experience of independence. Thus, not having the necessary experience, we wanted to say the least possible so that by time the post would evolve by experience.

One of the things we introduced was in Article 123 (b) where we stated that the President's office is not renewable, but this clause does not require a two-thirds majority in Parliament for it to be changed or removed, but only a simple majority. Therefore this is up to the majority to decide whether to retain Article 123 (b) or not.

You mentioned the fact that in several countries the President's office lasts for seven years. We decided on five years not to coincide with the five years of the legislature.

In fact, the original aim was that they should never coincide: the President would be elected during a particular legislature and not at its beginning or end. However, certain events happened which changed the original idea and brought about the current situation.

I believe that five years are long enough for a President's term. After all, the US President serves for four years, the Maltese President serves for five years, and those of Italy and other countries serve for seven years. This is a question of opinion. There is nothing illogical in the number of five or seven. It is merely a decision of the nation.

In Austria, the President may be removed by means of a referendum which is initiated by the National Council. This is, in my opinion, a very strict position. What do you think of the President's position in our case, when he may be removed by a simple majority of Parliament?

If the President is unable, for example, for health reasons or misbehaviour, to continue performing his duties, one is to assume that Parliament acts constitutionally correctly. However, maybe this article warrants further study and discussion to find a better way regarding this position.

As regards the removal of a judge, one requires proved inability to perform the functions of his office. In the case of the President, the word "proved" is inexistent. Why?

Imagine what would happen if Parliament says it will remove a President even if there is no proved inability to perform his duties. Thus, I believe that the interpretation in our Constitution is that proof is required. Obviously, Parliament can act wrongly.

But then, who would have acted wrongly, the President or the Parliament? I believe that there will come a time, maybe now it is a bit premature, when the Constitution will be re-examined in the light of the President's powers.

However, for now the Maltese nation has other problems and I don't think it right to think about Presidency matters now. Today, knowing all the Presidents who were in office before me, President Mamo, who was a model of correctness, President Buttigieg, who was so careful in his President's office, President Barbara, who was President in very difficult times for Malta when the party in government had a minority of votes and the Opposition a majority of votes, took various initiatives to reconcile both sides and helped to safeguard the constitutionality of our nation.

The same applies to President Tabone and President Mifsud Bonnici, who saw three different governments in his five years of office. All these ex-Presidents can help to shed light on the way the Presidency has to be above the legislature for the benefit of the country.

I want to tell you how much Agatha Barbara respected you. I was helping her to collect information regarding her speeches in Parliament between 1947 and 1981, as she intended to publish a book. She was always saying how much you helped and co-operated in difficult political situations. She said that at that time she was the rough diamond of Malta.

I agree. For those who knew Agatha Barbara only superficially, she was a bit rough. But I know how much she loved Malta, how much she looked for dialogue to solve national problems.

I want to speak also of Anthony Mamo. When we had the constitutional problem about Malta becoming a republic, Sir Anthony asked me whether I would speak to Dr George Borg Olivier, leader of the Nationalist Party, to arrange a meeting with both parties.

Here I want to say publicly that Sir Anthony was an important factor so that, between Government and Opposition then, there were the necessary contacts (difficult at the time) to find the ways eventually adopted for Malta to be declared a republic.

This required a two-thirds majority. This was obtained when a large majority of the Opposition voted in favour of the republic and the problem was solved. The right intervention of Sir Anthony helped to make this possible. I'm saying this because very often the work of the head of state is hidden and you have to wait until you can actually say these things.

In all fairness, would it be correct to say that Paul Xuereb also helped in difficult times to safeguard democracy in Malta?

The late Paul Xuereb was Acting President in a transition period, which is always a difficult one. One legislature was over, a new one had begun but the continuity of the state was there. Yes, Paul Xuereb contributed like all the others.

Do you think the time has come for the President to be elected directly by the electorate and not by Parliament, and thus maybe there will be other powers to the President besides those existing now? In the 1980s there was some discussion about the matter.

I was the chairman of that standing committee and I had a committee of very illustrious members. For the government I had Dr Tabone and Dr Mifsud Bonnici while for the Opposition I had Dom Mintoff and Guzè Cassar. For once we managed to draw up a unanimous report which, considering the differences among the committee members, was a great feat.

This is the only unanimous report which Parliament had, and the only unanimous report not approved by Parliament. It went down in history as a good idea in a premature time. Our suggestion was that if the President is not elected by Parliament with a certain qualified majority, then after some counts the people would elect the President directly.

The idea is that if there is no qualified majority in Parliament, then the people, who are sovereign over Parliament, are to choose. These ideas at the moment do not need going into deeply, because it is better to solve current problems.

Maybe the time will come when we have to solve these problems, but let us allow the maturity and experience to help us in finding a solution.

The President as a symbol of national unity. Do you think the appointment of people distinguished in the political field helps or hinders this national unity? Do you think we should favour the appointment of other people, like academics, who made a name for themselves abroad as you did, so that we reduce political polarisation?

Parliament is sovereign and each President we had was nominated and elected by Parliament. It is true that Presidents from the political field (all the Presidents we had, except the first, came from the political field) raise doubts as to how they can preside in a correct way. But that is the beauty of life. Experience drowns the theory.

For example, President Buttigieg was very good. He was really worried about the result of the 1981 election, when his term was nearly over, about his role in that situation. I have already spoken about Agatha Barbara.

As regards Censu Tabone, he started with a boycott from the Opposition. He ended his term with the Opposition asking for an amendment in the Constitution so that his term be extended. Ugo Mifsud Bonnici was praised by both sides of Parliament, and he was President under three governments.

What I'm trying to say is that I understand your query: I come from the political field with years of politics behind me. When one accepts an appointment one must fully understand that with all responsibility one has to keep one's personal opinions to oneself while one's opinions as President should be those for the best of the country. All the Presidents before me, and I myself, have done this.

Guido de Marco lawyer: profession. Guido de Marco politician: mission. Guido de Marco President of Malta: is it a vocation? What do you think is expected from you as President?

From me, and from any President, the Maltese people expect that when speaking on behalf of the government I must reflect the will of the democratically elected government. Being President, I have to preside over Malta. This is the difference between a President and a prime minister.

The prime minister administers while the President presides. When you preside over Malta, you must have a great sense of responsibility. You don't have a majority or a minority. You have the people of Malta and the President must make an effort to represent the whole of the Maltese people and act in a way that each Maltese citizen can identify with. I believe this is the duty of the President; it is not easy but it has to be done.

You published a book called Momentum, which is a collection of your speeches. What message do you want to convey and why the title Momentum?

Life is movement. It can be slow, fast or you can put something in motion. I want to put in motion certain things: the values of the Maltese people; what is our identity which has been with us throughout the centuries and made us think like Maltese, in spite of several countries which dominated us?

We remained an island but not isolated. We learned from others but remained ourselves. I wanted to show the relevance of the Maltese people. Even though we are small, we have no inferiority complex.

We want to be relevant in Europe and the Mediterranean. We want to be relevant for peace, for progress, human solidarity, not merely existing but also giving a relevant contribution.