Both the Labour Party and the Nationalist Party have kept silent on whether talks for the appointment of a new President in a year’s time have begun, as former Prime Ministers and legal experts added their views on the President’s fears that he may have to stay on in his role.

In an interview with The Malta Independent on Sunday last week, President George Vella expressed his fear that he may have to stay on in his post if the government and Opposition fail to reach an agreement on his successor.

For the first time, a new President will require the faith of two-thirds of Parliament, rather than just a simple majority.  This was a reform which was part of a package of constitutional changes implemented in 2020 – but that package did not include an anti-deadlock mechanism in case there is a stalemate on the appointment of the President.

“It’s difficult to say who should follow, but what I say is that I hope that there will be an agreement on a person, so we don’t end up like we did in the matter of the Ombudsman,” Vella said when asked about the prospect of his replacement needing a cross-party majority.

“As head of state, I hope that there are talks from now so that if there is someone in the minds of who has to appoint my successor in a year, there is time for them to discuss and agree. I don’t want to see this office be blocked due to the lack of agreement on a person,” he said.

“Then what happens?  Based on what the law says now the President would have to stay in his position until a successor is chosen, which is something that, I can assure you, I don’t want to go through,” he continued.

His words hold power, particularly given the existence of a climate where the government and opposition have had issues coming to an agreement on important roles.

Anthony Mifsud remained Ombudsman for 20 months after his term expired because the government and Opposition couldn’t reach an agreement on his replacement, while the government changed the law concerning the appointment of the Standards Commissioner because the two sides failed to reach an agreement on who should succeed George Hyzler.

However, no such legislative changes can be made without the agreement of both parties in order to facilitate the appointment of a new President: It’s a two-thirds majority or nothing.

The Malta Independent on Sunday approached former Prime Ministers, legal experts, and both the PN and the PL for their perspectives on Vella’s comments.

What former Prime Ministers say

Three former Prime Ministers were approached for comment on the situation, and were all asked for their views on the matter and what they think should happen in a case where there is no agreement between the government and Opposition on a new President.

Joseph Muscat, who served as Prime Minister between 2013 and 2020 before his protest-prompted resignation, appointed two Presidents during his time in power: Vella himself and his predecessor Marie-Louise Coleiro Preca.

He told The Malta Independent on Sunday that the President “is justified in airing his concerns.”

However, he pointed out that “the appointment of the last three Heads of State has seen a practically unanimous support by Parliament, despite the fact that a simple majority was required.”

“Is it because the Prime Minister's nomination was the right one or because of the Opposition's approach?  Different people will have different views but probably it is a bit of both”, Muscat continued.

On the other hand, he pointed out that “there were instances in a not so distant past where a Head of State appointed only with Government's votes, earned the Opposition's trust over time.” 

“This was the case of Ugo Mifsud Bonnici, whom Alfred Sant ended up suggesting should serve an unprecedented second term (Constitutional issues put aside),” Muscat said.

Muscat said that in the case of a deadlock given the fact that the appointment must now receive a two-thirds majority to go through, “an anti-deadlock mechanism is necessary.”

“This is only natural and used in the appointment of a Head of State in other countries, such as Italy,” he said.

Muscat also shared a point on who he believes should perhaps succeed Vella: “May I add that I strongly advocate for a woman to be again appointed to this post, since this cannot be seen as a symbolic once in a generation nomination, but rather a natural process.”

Malta has had just two women Presidents since the office was created in 1974: Agatha Barbara and Marie-Louise Coleiro Preca.

Alfred Sant, who is the only Prime Minister except for the current incumbent Robert Abela to have not overseen the appointment of a President, agreed that the President’s fears are “well-grounded.”

“Any cursory review of our modern political history will more than show that stalemate is likely when a new President is to be chosen, if imperatively a two thirds parliamentary vote is the rule. The change was introduced too hastily, under outside "European" pressures that were misguided and should have been unacceptable,” Sant told The Malta Independent on Sunday.

On what he thinks should happen in the case that there is no agreement on a new President, Sant said that the new two-thirds rule is now entrenched in the Constitution, which means that it cannot be removed or amended by a majority vote.

“The two sides of the House will be obliged to find some compromise, but it has already been seen how difficult this could be, with the two sides accusing each other of being bloody minded,” he said, ostensibly in reference to the Ombudsman and Standards Commissioner appointments process.

“The process could take weeks, conceivably even years,” he said.

Former Prime Minister Lawrence Gonzi was also approached for comment, but did not reply.

What the legal experts say

Former European Court of Human Rights judge Giovanni Bonello meanwhile told The Malta Independent on Sunday that it is questionable as to whether Vella is obliged to remain in his post if no successor is found.

He was asked whether, from a legal perspective, the President’s fears are well-founded and whether it would be the case that he would have to continue holding his post if the government and Opposition fail to reach an agreement on his successor. He was also asked what would happen in case there is no agreement on a new President.

Bonello said in reply that it is “questionable whether the Constitution obliges George Vella to remain in office if there is no successor in place at the expiry of his five year mandate, in case he opts to resign his office.”

“In fact Article 123.2 [of the Constitution] expressly prohibits a president from staying in office in excess of his original five-year mandate,” Bonello continued.

Article 123.1 of the Constitution reads that: “Save as otherwise provided in this Constitution, where any person has vacated any office established by this Constitution including the office of Prime Minister or other Minister or Parliamentary Secretary, he may, if qualified, again be appointed, elected or otherwise selected to hold that office in accordance with the provisions of this Constitution.”

Article 123.2 however then refers to Article 123.1 and says that “this article shall not apply to the office of President, but shall apply to a person appointed to perform the functions of President in accordance with article 49 of the Constitution.”

“I don’t really see the concerns raised by George Vella. At the end of the five year period, he can resign his office. Kings, popes, prime ministers, chief justices, presidents of democratic states, MPs resign, and so can a President. He cannot be forced to function if he does not desire to,” Bonello said.

“The constitution in fact lays down that at the expiry of the five years term, the Office of President becomes vacant. It also becomes vacant if a President resigns. The vacancy is to be filled (temporarily) by a person appointed by the Prime Minister after consulting the Leader of the Opposition, or in default, by the Speaker of the House,” he added.

In his column in today’s The Malta Independent on Sunday, former Faculty of Laws Dean Kevin Aquilina said that the fact that there may be a disagreement on a new President which means that the two-thirds majority won’t be achieved “raises several questions of a good governance nature.”

Aquilina wrote that the solution at face value would be to amend the Constitution to establish an anti-deadlock mechanism like that of the Standards Commissioner, but he added that in a two-party state like Malta this is “hardly a suitable option as, were this to happen, it opens a can of worms.”

“When the dispute, alas, reaches such stage, that is, nobody wants to budge because of pique, political immaturity, childish behaviour, and undignified statesmanship, the only solution is to remove the appointment power from the Prime Minister and the Leader of the Opposition or their respective parliamentary groups and to assign it to some other neutral authority that is above petty partisan politics,” Aquilina wrote.

In this sense, he suggested to appoint a Council of State made up of former Presidents, Prime Ministers, and Chief Justices which would not only provide advice on the appointment of a President, but also in cases where there is a stalemate between the two main parties on a constitutional appointment.

In the case of any constitutional appoint, this Council of State would advise the President on the ideal candidate and it is the President who would then decide; but in the case of appointing a new President in the case of a deadlock, it would be the Council of State itself which approves the appointment of the new President, Aquilina said.

What the political parties didn’t say

An identical set of questions relating to Vella’s interview with The Malta Independent on Sunday was sent to both the Labour Party and the Nationalist Party on Tuesday, but neither responded.

The questions which the parties did not answer are the following:

- Have discussions on who should succeed Vella begun?

- What is the PN/PL looking for in the next President?

- Does the PN/PL believe that the next President should have a non-political background?