16 September 2014

Referendum on Constitutional reform not binding - expert

 - Thursday, 18 April 2013, 15:18

by Jacob Borg


A referendum on Constitutional reform is not a legal necessity according to Constitutional lawyer Austin Bencini.

“The Constitution does not envisage a referendum for the purpose of Constitutional reform. A two-thirds majority in parliament is necessary in order to amend the Constitution,” Dr Bencini said.

“The only situation where a referendum is necessary is if parliament were to decide to increase the length of the legislature from five years to seven for example.”

Any referendum held would therefore be purely consultative. Dr Bencini likened the situation to that of the divorce referendum.

“A consultative referendum was held for the introduction of divorce in Malta. Although the result was not legally binding, it was taken to be morally binding.”

Dr Bencini expressed himself to be in favour of a consultative referendum, saying that “parliament should consult the people.” 


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Francis Saliba says:
21 April 2013 14:46

It is ridiculous for Eddy Privitera to insist that a manifestly non-binding consultative referendum should be transmogrified into a MORALLY binding imposition on members of parliament when his party leader and today's prime minister claims the right to grant exemptions from the parliament code of ethics to another LP member of parliament. That kind of "morality" leaves a bitter taste in the mouth.

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Adriano Spiteri says:
18 April 2013 15:46

Constitutional amendments should include this issue.
Referenda should be binding not consultative.

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Brian Ellul says:
19 April 2013 07:09

hehe good joke :)

Tidher li ma ghandikx idea x'qed tighid!

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Eddy Priviteera says:
18 April 2013 15:38

What Dr. Bencini should say is whether he agrees or not, that if the people vote in favour of the constitutional reforms, the members of parliament are MORALLY bound to vote in favour of the reforms !

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Stefan Vella says:
18 April 2013 18:11

So if 50%+1 idiots vote in a referendum to abolish or curtail our freedom of speech/movement/press etc, is our parliament morally obliged to vote in favour of the change?

I surely hope not. With old Labour faces and the new Mintoff worshippers in government, this is a possibility.

If referenda on constitution changes require a minimum of 66%+1, we can maybe start to discuss on morals. Even then it may be abused - freedom to practice religion should never be decided on any referendum.

The majority, irrespective of size, should never be able to dictate to the minority on human and civil rights.

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Eddy Priviteera says:
18 April 2013 20:07

Stefan: And if 65% of voters vote in favour, you believe that their say should be ignored by 30 PN MPs !

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J. Borg says:
19 April 2013 02:35

@ Privitera  What rubbish reasoning! Absolutely! If 65% of the voters voted to have the heads of the Maltese people cut off, then the 30 PN MPs should not only ignore this, but have a moral duty to do all in their power to *prevent* this!!!

It is precisely for this reason that a 2/3 majority is required in parliament. Trust Labour to try to circumvent the provisions made to protect our democracy!!!

What you are trying to do is use a *simple* majority to bypass the *2/3* majority that you need to put whatever you like into the constitution -- but the rest of us are not such a bunch of suckers to allow this!!!

Spiteri -- please note!!!

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Eddy Priviteera says:
19 April 2013 12:37

J. Borg And what stupid argument have you made ! Just as you are imagining the unimaginable, I'll do likewise. What if the 30 MPs have a hidden agenda not to allow the reforms in order to protect their own selfish interests ? The MPs are in parliament to represent THE PEOPLE'S INTEREST, not their own !!!!!!!!!!

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J. Borg says:
19 April 2013 15:02

You and the Labour Party are hardly the defenders of democracy!! -- just look at the MLP's track record during our lifetimes!! -- which is why you are trying to use the argument that a simple majority (ie, 50%+1) in a referendum should take precedence over what is required to have a 2/3 majority in parliament.

Since, as you say yourself, the MPs are in parliament to represent the people, the 2/3 majority required in the house in order to change the Constitution reflects the need to have a 2/3 majority of the people in favour of changes to the Constitution before these are made.

Hence you cannot use the argument that if you win a referendum by 50%+1, you should be able to change the constitution, which requires agreement by 66.66% of the people.

Trying to use this argument shows that Labour has remained a bunch of CHEATS who are fundamentally undemocratic!

And suggesting that "...the 30 MPs have a hidden agenda not to allow the reforms in order to protect their own selfish interests" simply shows that you think parliament is a waste of space and time. Why not abolish it altogether? Now that would be convenient!

Typical Labour thinking! The *Malta Kollha Taghna* philosophy at work once again!!!

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