My second question: Can the president remove the prime minister from office on his own initiative?
Yes, he can in terms of article 85(1)(b) in the cases contemplated under articles 80 and 81.
However, what is being discussed here is not whether there is a vote of no confidence in the House or dissolution of the House but whether the prime minister does not enjoy majority support in his own parliamentary group. The discussion is limited to articles 80 and 85(1)(b) and to the President’s oath of office. The question of a vote of no confidence and dissolution of the House (article 81) are not relevant for this purpose.
My line of argumentation has never been that the president should dismiss the prime minister on his own initiative even though foreign state practice allows for this extraordinary measure to be taken. I think that in a democracy that would be going too far unless the prime minister is charged in court with criminal conduct and opts not to resign from office – which is not the case at the moment in Malta (even though Repubblika have asked the police to investigate the prime minister on bribery charges) or where the prime minister is subverting the Constitution.
In the light of recent events, the practical measure that I advocated was that the President should consult the government parliamentary group to establish:
(i) whether the current prime minister still enjoys majority support in the House, in which case the president would have abided by his constitutional duty in terms of his oath of office and articles 80 and 85(1)(b) of the Constitution, and the matter would end there in so far as the president is concerned; and/or,
(ii) should it be found that the prime minister does not enjoy such a majority, the president would need to determine whether there is any Labour MP who enjoys such a majority to be appointed in lieu of the current PM.
The president stated on the TVM news bulletin of December 20 that he had summoned Chief Justice Emeritus Vincent De Gaetano and me for a meeting and both could not indicate any practical means how he could exercise his constitutional duties as suggested by them in their respective article (‘President, you have a constitutional duty to act’, Times of Malta, December, 14) and interview (Ray Bugeja, ‘This is now an institutional crisis’, The Sunday Times of Malta, December 15).
I hereby declare that I was never summoned by the president for any meeting whatsoever and, hence, it is not factually correct that I could not indicate any practical measure how the president could exercise his constitutional duties. For the record, nonetheless, I had suggested such a measure in my two aforesaid Times of Malta articles of December 7 and 14 and am reiterating it in this piece.
Practical measures are found in conventions and usages adopted in foreign state practice. Constitutional law books do refer to a number of examples. I will limit myself to citing a few constitutional law authors that provide instances of a prime minister’s removal from office by a head of state where no vote of lack of confidence was taken in the legislature.
John Stanton and Craig Prescott, Public Law (Oxford University Press, Oxford, 2018, p. 224) refer to the case where “a prime minister had lost... majority at an election clung on to office, and after losing a vote of no confidence, requested a second general election. In such extreme circumstances, the Queen would have been bound to have rejected such advice and dismiss the Prime Minister from office”.
Durga Das Basu, Commentary on the Constitution of India (S.C. Sarkar & Sons (P) Ltd, Calcutta, India, Vol. H, 1983, pp. 106-117) provides a litany of instances from Commonwealth countries’ practice where the head of state dismissed a prime minister notwithstanding the latter’s retention of confidence in the legislature.
It is not factually correct that I could not indicate any practical measure how the president could exercise his constitutional duties
In the 1963 case of Adegbenro v Akintola, the Judicial Committee of the Privy Council held that “a ministry may be collectively dismissed by the constitutional head even without an adverse vote in the Legislative Assembly” (Basu, p. 111).
In Canada “the Governor-General’s power to dismiss a ministry still survives in extreme cases of unconstitutional action say, corruption. An occasion like this arose in 1873, when the Governor-General asked the PM, Sir Macdonald, to resign on a charge of bribery in connection with a railway deal” (Basu, p. 111).
Dawson wrote that if a PM “were shown beyond any reasonable doubt to have accepted a bribe and then refused to resign or to advise that Parliament be immediately summoned to deal with the matter, the Governor would have an undoubted right to dismiss him from office” (Basu, p. 111).
In Australia, in 1975, the Governor-General dismissed the Labour PM Mr Whitlam “when the latter refused to resign or advise dissolution of Parliament on the rejection of his budget by the Senate” (Basu, p. 111).
Several other instances are cited by Basu at pages 112 to 117.
In relation to the United Kingdom, Basu recognises that it is possible, “in extraordinary circumstances” to dismiss a PM: “The Crown would be justified in dismissing a ministry (a) where its continuance would be ruinous to the nation, owing to unfitness or incapacity; or (b) where it seeks to subvert the ‘democratic basis of the Constitution’, such as by prolonging the life of Parliament in order to avoid defeat at a general election or fraudulent manipulation at the poll in order to obtain a majority’ (Basu, p. 110).
Sydney E. Williams, Constitutional Law of England (Stevens & Sons, Limited, London, third edition, 1922, p. 191) concludes that: “The Crown would be justified in exercising the prerogative of dismissal in a case where it is unable to repose confidence, or for want of ability or unfitness, or where the existence of the Ministry in office through dissensions or otherwise is ruinous to the country”.
To these I would also add “where democratic institutions of Malta are threatened by subversion” (article 47(2) of the Constitution), and where the rule of law and the independence of the judiciary are suppressed and where institutionalised corruption is rife.
This concludes a three-part article.
Professor Kevin Aquilina is Head of Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta.
Correction: In the fourth column, line 3 of part one of this article, the word ‘not’ should be deleted so that that line reads “political party in breach...”.