The President of Malta needs to exercise fully the responsibilities of his office. Needless to say, he does not do so when he issues a disturbing press release stating that he can do nothing more about the current constitutional crisis. The press release issued by his office informed the public that if he were to act, he would be going beyond the provisions of the constitution (See Department of Information press release 192602 of December 6).

Let me however remind the president what he swore when he assumed the duties of office: “I George Vella solemnly swear that I will faithfully execute the office of President (perform the functions of the President) of Malta, and will, to the best of my ability preserve, protect and defend the Constitution of Malta. (So help me God).”

Can the president tell us how he is preserving, protecting and defending the constitution of Malta in the current constitutional crisis? His predecessors in office did exercise their constitutional guardianship role but is the current president doing so? Unfortunately, the press release is silent on these matters. Hopefully the president can be kind enough to elaborate further and set the record straight.

Is, for instance, the president raising rule of law issues with the prime minister when the latter meets him, in terms of article 87 of the Constitution, to keep the president regularly informed concerning matters of government? Has the president ever raised rule of law issues during these meetings? Or will the president provide the stock answer that what is discussed in these meetings is a matter of state, highly confidential and not in the public (that is, government) interest to divulge?

The current Head of State has gone on record this year, not much in consonance with his national unity symbol, to endorse his government’s protestations that the criticism on the rule of law in Malta was “unfair and blown out of proportion”.

As was reported by Herman Grech: “Criticism of Malta’s rule of law and claims that Malta’s democracy was under threat were unfair and blown out of proportion, the President has said. Asked on Times Talk whether he felt such criticism was justified, George Vella replied: ‘I wouldn’t say it’s rubbish, but it’s not fair – it’s out of proportion considering the many changes that took place when I was also part of Cabinet’.”

Being guardian of the constitution means a proactive approach to constitutional problems

If the president – the Constitution’s guardian – appears to be unaware of the extent of rule of law problems in Malta, if the president in his previous ministerial life had no qualms to partake in the “many changes that took place” (those same changes criticised by the Venice Commission and other international bodies), how can we expect that he carries out his constitutional duties when for him the “criticism of Malta’s rule of law and claims that Malta’s democracy was under threat were unfair and blown out of proportion”?

Being guardian of the constitution means taking a proactive approach to constitutional problems: issuing a press release informing readers that to act in the current constitutional crisis brings the President in breach of the Constitution is not tantamount to “preserve, protect and defend the Constitution of Malta”. Otherwise, these words would mean nothing and the President can stay put and continue to witness the country falling into pieces.

There are of course several ways and means how the president can assert his guardianship role. For instance, in the press it has been reported that the prime minister does not enjoy the support of his parliamentary group. Of course, the Labour parliamentary group will never commit itself publicly on this even if it might be true. But has the president investigated this assertion? Has he summoned the parliamentary group to establish whether today the Deputy Prime Minister enjoys more support in the government parliamentary group than the prime minister?

In terms of section 80 of the constitution, the president acts on his own individual judgment when he appoints and removes a prime minister from office and does not need the advice of the prime minister or the cabinet to do so. By not checking this matter out, is he not refraining from exercising his constitutional duty?

Section 80 reads that: “Wherever there shall be occasion for the appointment of a Prime Minister, the President shall appoint as Prime Minister the member of the House of Representatives who, in his judgment, is best able to command the support of a majority of the members of that House...”

Of course, for the Labour Party the president’s inaction is convenient for it can still claim that the cabinet is united under the leadership of the current prime minister even if this might not be correct. Can the president refrain from exercising his constitutional duty to wait for the Labour Party to appoint a new leader following electoral contestation on January 12, that is, in more than a month’s time whilst leaving the country in a paralysis?

In the meantime, Muscat, the real cause of the crisis is not removed as fast as possible and this when it is possible to have the deputy prime minister take over the leadership of the country.

Elsewhere, the president is not compliant with the constitution. For instance, article 78(3) states that: “(3) Nothing in this article shall prevent Parliament from conferring functions on persons or authorities other than the President.”

This provision is prohibiting Parliament from enacting ordinary legislation conferring powers on the president as it has reserved that power only and uniquely unto itself. Not even Parliament can confer additional constitutional functions by ordinary law to the president let alone a government (in this case, with the connivance of the Opposition) who unconstitutionally entrusts the Head of State with chairing a steering committee on constitutional reform.

Yet the president continues to chair the steering committee on constitutional reform when the constitution clearly states that it is only the constitution – not Parliament, not government, not the Opposition – which can confer additional constitutional functions on the president.

So if the guardian of the constitution himself seems to take lightly his oath of office, considers rule of law issues to be blown “out of proportion”, does not appear to be taking action to “preserve, protect and defend the Constitution”, does not even attempt perfunctorily to establish whether the prime minister still enjoys today a majority in his parliamentary group, possibly did and does not press the prime minister in his regular meetings to comply with the rule of law, and assumes executive functions beyond what is stated in section 78(3) of the constitution, then yes there is indeed a constitutional crisis in Malta and a threat to the rule of law.

Mr President, there is a constitutional, legal and moral duty for you to act and to act forthwith. That is what the constitution commands you to do. This is what you have subscribed to do in your oath of office. Constitutional matters cannot and should never be taken lightly and brushed aside by a press release.

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