The current situation gripping the Nationalist Party could lead to a legal quandary because both the Constitution and the PN statute seem to indicate that the PN leader should also be the Leader of the Opposition.

A group of MPs who voted against Adrian Delia on Tuesday have proposed Therese Comodini Cachia to replace Delia as Opposition Leader. The embattled Delia, however, has insisted he will stay on as party leader. This could potentially lead to a situation where the PN has a party leader who is not also the Opposition Leader.

Article 90 (4) of the Constitution says that the President can remove a Leader of the Opposition if, in his judgment, an MP other than the Opposition Leader has become the “Leader in the House” of the largest opposition party, or if the Opposition leader loses the support of the majority of Opposition MPs.

There is nothing in this part of the law that states who the President should appoint as a replacement, although the term ‘Leader in the House’ can be taken to mean an MP who has the backing of more than half of Opposition MPs.

Therese Comodini Cachia is expected to be nominated as the Opposition Leader to take Adrian Delia's place

Constitutional expert Kevin Aquilina said it is now up to the President to decide on the way forward. President Vella, he said, will need to verify that the name being proposed to him does indeed have the backing of the majority of Opposition MPs. The process could take a number of days.

Lawyer Franco Debono, however, said the President will have to act according to article 90(2), which deals with the appointment of the Leader of the Opposition.

The problem is that this article states that the Opposition Leader should be the leader of the largest opposition party.

“Since, according to this article, the President is bound to appoint an Opposition Leader who is the leader of the largest party in Opposition, and since, if he removes Delia he cannot appoint the same person, the PN would need to elect a new Leader for the Constitution to be adhered to.”

Aquilina said, however, that article 90(2) only applies for the appointment of an Opposition Leader at the start of a new legislature and, if that person is removed, he should be replaced by someone nominated from the Opposition MPs. 

The PN statute

Debono also pointed out that the newly adopted PN statute states that the party leader is also the Chairperson of the PN parliamentary group and the Leader of the Opposition.

Debono said the PN statute may not conform with the Constitution but the latter takes precedence.