Three constitutional experts have argued that the President must verify whether Adrian Delia has lost the support of Opposition MPs, and if so, move to appoint a replacement.  

In three separate letters of advice sent to opposition MP Jason Azzopardi this week, constitutional experts have weighed in on the current political crisis.  

The experts, Judge Giovanni Bonello, lawyer and lecturer Austin Bencini and professor Kevin Aquilina, appear to dismiss assertions by embattled leader Delia, that the roles of Opposition leader and PN party leader cannot be split. 

Opposition MPs on Thursday started holding individual meetings with President George Vella after Delia lost a vote of confidence among his parliamentary group.  

A "hurt and angry" Delia has insisted that he will remain at the helm of the PN, irrespective of whether he loses his position as leader of the Opposition. 

Going a step further, supporters of Delia have also raised doubts over whether he can even be stripped of his position in the House, while he remains at the helm of the PN.  

The appointment and removal of the Leader of the Opposition by the President are regulated by Article 90 of the Constitution. The sub-articles that are relevant to the present circumstances are (2) and (4).

Kevin Aquilina.

'Constitution not spelt out black and white'

Kevin Aquilina, a professor at the University of Malta’s Faculty of Law, said that “although not spelt out black on white”, the constitution says that the MP who now enjoys the majority support of PN MPs over the incumbent opposition leader is to be appointed as his replacement. 

“This is why the incumbent opposition leader is being removed to be substituted by another MP,” Aquilina writes.  

'Constitution cannot contradict itself'

Giovanni Bonello, a former judge at the European Court of Human Rights, writes that different articles of the constitution cannot be interpreted in a way that has one section contradict the other.  

The correct interpretation, he says, is when articles are in harmony with one another.  

He argues that while two sub-articles, (2) and (4), regulate the appointment of the leader of the opposition by the President, they stipulate different mechanisms. 

The first, he writes, refers to the appointment of the opposition leader at the start of a legislature, just after a general election.  

Giovanni Bonello.

The second contemplates the appointment during the course of a legislature when, in the President's judgement, the opposition leader has ceased to command the support of “the largest single group of members  in opposition to the government”.

'This makes constitutional sense'

Austin Bencini, a constitutional law expert and University of Malta lecturer, shares the same interpretation.  

In his letter, he argues that the President has to identify the MP who enjoys the confidence and consequently the majority of all MPs in the House. The President must act on his own judgement and not following the advice of any other authority such as the Prime Minister, he adds.  

Austin Bencini.

“This makes constitutional sense in that the Prime Minister would have a vested partisan political interest in the appointment of his or her principal parliamentary adversary,” he writes.  

The appointment of the leader of the opposition is rigidly qualified by the criteria of  an MP and “the leader of the greatest opposition party in the House”, he said.  
The President is “constitutionally bound” to establish whether another MP other than the sitting opposition leader enjoys the majority of the largest party within the House that is in opposition to the government.

He must then appoint that MP as the new Leader of the Opposition and revoke the mandate of the MP originally appointed to that position.