At the end of last year and beginning of this year President George Vella had been urged by many to, in view of the unprecedented emergency situation in the country, take immediate steps to dismiss then Prime Minister Joseph Muscat, who, for many, seemed to be the focus of an unprecedented political and Constitutional turmoil.

President Vella publically admitted that the situation was indeed very serious, but after seeking constitutional advice from legal experts he declared that there was little room for him to manoeuvre. Indeed his hands were tied unless a vote of no-confidence in the Prime Minister was passed by the majority of the House of Representatives.

The critical articles in the Constitution are 80 and 81 (1). Article 80 states that the President shall appoint as Prime Minister the member of the House of Representatives who, in his judgement, is best able to command the support of the majority of the members of that House, while article 81(1) states that if the House passes a resolution, supported by the votes of a majority of all the members, that it has no confidence in the Government, the President may remove the Prime Minister from office. However, article 85(1)(b) states that the President shall act in accordance with his own deliberate judgement in the exercise of the power to appoint the Prime Minister or remove him from office.

Various opinions have been put forward as possible solutions to these problems. I will refer specifically to three of them: (a) The President has the moral authority, indeed the moral duty, to stand up and denounce whatever could be eroding the constitutional morality of the country and undermining its institutions. (b) In a situation where the institutions of the country 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 institutional corruption is rife the President should consult the governmental parliamentary group to establish whether the Prime Minister still enjoyed the support of their majority. (c) The President is bound to appoint that person who commands the majority support of the members of Parliament, a support which, in its turn, reflects also the majority in the country obtained through the ballot box in the last general elections.

The need of revising the present Constitution to address these shortcomings has also been put forward. I will mention just two that I consider worthy of further discussion. (i) The Constitution should have a specific clause worded in a clear explicit way on how the President is to act when he/she is in possession of incontrovertible evidence of wrong-doing or bad decision making by the Prime Minister that is legally, ethically and morally unacceptable. The President could arrive at his final decision as to how to proceed through a process of consultation as he deems fit, not excluding, of course, guidance from established institutional bodies. For this purpose, and to give more clout and authority to the President, he/she should be appointed by the House of Representatives through a two-thirds majority or through direct election by universal suffrage. In order for the President to deal with critical matters of state involving extraordinary questions/events (e.g. like those that hit Malta at end of 2019) the Constitution should contain institutional mechanisms of power control for the protection of the interests and liberties of citizens. Constitutions should act as limiters of state powers by establishing clear lines which those in power cannot cross. These could include powers of appointment and dismissal. For all this to be possible, the person appointed to the Presidency (the final arbitrator) should be a person commanding wide respect and general confidence in his/her ability to deal with very serious problems of state in the fairest manner.

Lately the position of the Leader of the Opposition has also been questioned. In accordance with article 90(4) of the Constitution the President should appoint as Leader of the Opposition a member of the House of Representatives who has the greatest numerical strength of the opposition parties in the House.  However, if the said Leader "ceases to command the support of the largest single group of members of the opposition to the Government, the President shall revoke the appointment of the Leader of the Opposition." In these circumstances, of course, the President is obliged to seek to establish the member of the opposition groups who commands the support of the largest single group of members of the opposition to the government. The role of the President is, therefore, clearly stated in the Constitution even in the current circumstances assailing the opposition parties in Parliament (in this case the Nationalists members and the two independent members). 

As a final warning it should be kept in mind that all documents (great and small) that are created by men are fallible. They are legal structures that work through human effort and, as with any other mechanism, they are liable to default or to be abused, intentionally or accidentally. Our Constitution was written by very wise men, foremost amongst them Prof JJ Cremona. This Constitution passed even the hard test of pre-membership prior to our country's entry in the European Union. It is now, after so many years of practice, that the Constitution is being seriously questioned in some of its most essential parts. There is certainly need for its revision (though, perhaps, not its overhaul) but let us keep in mind that for it to work successfully we need to ensure that it is managed by persons who can be trusted upon to do so with fairness and good judgement. More than anything, this, I think, is the crux of the whole problem.