The lead story carried last week entitled “37 MPs declare ‘yes’ vote on divorce bill” repeated Minister Austin Gatt’s gross mistake when it was said that an Ordinary Bill requires a 35+ threshold to be surpassed in order to be approved by the House of Representatives.

I would like to clarify matters from a purely constitutional law point of view, for the sake of better judgment by your readers.

An ordinary Bill does not need a minimum of 35 votes to be passed, or to use a technical word, “carried.” An ordinary Bill merely needs a majority of the Members of Parliament present and voting to be carried.

This majority of MPs present and voting is defined by Professor J.J. Cremona, the very author of the 1964 Constitution, as being a “simple majority” (vide The Maltese Constitution and Constitutional History since 1813, p 103.)

Therefore JPO and Bartolo’s Divorce Bill only requires a majority of MPs present and voting in order to be approved and NOT a majority of all MPs.

Purely for general knowledge purposes, the Constitution only sets thresholds in the case of a Bill amending the Constitution itself, which is the suprema lex. Indeed, the status of the Constitution as supreme law, as Professor Cremona states (p.108), is determined by the procedure prescribed for its amendment. 

The procedure can be described as the “three tier method of entrenchment”.  The first tier: in some parts, the Constitution requires an absolute majority of all MPs to vote in favour in order to be amended (i.e. 35+ in today’s scenario). The second tier: in other parts, which are more serious and important, the Constitution requires an absolute majority of two thirds of all MPs to vote in favour in order to be amended (i.e. 46+ in today’s scenario). 

Then there is one interesting instance, the only one in the third tier, where the Constitution requires not only an absolute majority of two thirds of all MPs to vote in favour, but also a popular referendum over and above approving such vote in order for that particular, singular provision to be changed. Which is that provision? The provision that speaks about the duration of Parliament!

All this information will definitely help readers ascertain who will actually be the people ensuring that the will of the majority in the Divorce Referendum be respected and reflected in the parliamentary vote, and who will be acting directly against the wish of the majority.

Owen Bonnici

ZEJTUN

Dr Bonnici is Opposition spokesman for Higher Education, University, Research and Culture and member of the Foreign and European Affairs Parliamentary Committee