The Maltese Constitution in its true form is that of 1964, given to us by our previous British rulers. Along the years, many amendments have been made to this important document reflecting the nation’s achievements such as becoming a republic in 1974, joining the EU in 2004 and ensuring majority rule in 1987.
It is not often that the constitution is in fact amended, as most articles require the consensus of two-thirds of the House of Representatives which, in Malta’s partisan soul, is a hard threshold to reach.
In spite of this, the government and the opposition do sometimes give the constitution a facelift. The biggest recent facelift was that of 2020, where, among the several articles amended, the article regarding the appointment of the president might likely create a difficult situation in politics. Until 2020, the president was always described by pundits as simply a figurehead and a charity fundraiser but, today, the situation is no longer so.
Prior to 2020, the appointment of the president only required a simple majority in the House of Representatives to be elected, even though some presidents, such as today’s head of state, George Vella, obtained a much wider vote. However, as a result of the constitutional amendment, a president now requires a two-thirds parliamentary majority to be elected.
One of the biggest issues during the formulation of the 2020 amendments was an anti-deadlock mechanism but such a mechanism never prevailed and, therefore, the constitution provides that, in the case of no two-thirds consensus, “the person occupying the Office of the President of Malta shall, in any circumstance, remain in office until the resolution is supported by the votes of not less than two-thirds of all the members of the House”.
This is particularly relevant when considering the proposed change to the abortion law. The government seems determined to push forward an amendment which would legalise an abortion in circumstances where a woman’s life or her health are in “grave jeopardy”.
The problem which arose from this bill is that no definition has been given to the word “health” and neither to the phrase “grave jeopardy”.
For the purpose of this article, the merits of the words and phrases are not of relevance but the consequences they create are. On a number of occasions, the present president has stated he would refuse to sign a bill permitting abortion and would resign rather than give his approval. It seems the bill will be approved by parliament, with the opposition voting against.
Another way this [abortion] bill can be passed with the Office of the President vacant is by means of the speaker’s signature- Thomas Sciberras Herrera
If the president does resign, then a new president will have to be appointed. However, this will be the first time where this appointment will require the blessing of both sides of the House. It is safe to assume that the opposition’s main condition for supporting a new president is that the person in question must be a staunch pro-lifer while the government would be keen to appoint someone who would be in favour of the bill. Therefore, if no consensus is reached, Vella would remain president; however, in this unprecedented scenario, he would have resigned and thus the office would be vacant.
With this important office vacant, Malta would de facto end up with no head of state. This situation can lead to different political scenarios where the prime minister would still move forth with this amendment.
Firstly, the constitution provides that when such office is vacant, the prime minister shall appoint an acting president – who can easily sign this bill; the constitution only requires the prime minister to consult with the leader of the opposition but, frankly, this consultation carries little to no weight.
Furthermore, in recent history, this strategy has only happened once and it happened recently, when Vella went abroad and a controversial IVF amendment was signed by the acting president instead.
However, in this scenario, there is no guarantee that the current acting president, Frank Bezzina would sign the bill. In any case, he can easily be removed and another acting president appointed who will sign the bill. Such a scenario, however, would lead to a massive uproar and this option is highly unlikely.
Another way this bill can be passed with the Office of the President vacant is by means of the speaker’s signature, as the constitution also provides for a scenario where, in the case of Malta having no president, nor acting president, the speaker can step in.
The speaker’s view is currently unknown to the public and such a scenario is also unlikely as it would also create an uproar directed at both the prime minister and the speaker.
In view of these situations, with the current stance of the president, it is highly unlikely that the prime minister will insist on the bill in its current form as the political consequences to follow will be too big of a headache.
Such situations show that the president is no longer just a figurehead but, considering the 2020 amendments, is a key player in any legal amendment in the House of Representatives.
Thomas Sciberras Herrera is a law student.