The Malta Independent 7 August 2020, Friday

A presidential meaningless interpretation of the Constitution - Kevin Aquilina

Kevin Aquilina Tuesday, 14 July 2020, 07:12 Last update: about 23 days ago

I have read the President of Malta’s ruling related to the Office of the Leader of the Opposition and note that the interpretation given to Article 90 of the Constitution is to render it reductio ad absurdum, that is totally and completely meaningless.

First, the President establishes that Dr Adrian Delia does not enjoy majority support amongst his parliamentary group. According to the Constitution, once the President has arrived at this self-declared conclusion, he has only one step to take: to remove forthwith Dr Adrian Delia from the position of Leader of the Opposition.

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If he envisages a constitutional hurdle in reappointing a new Leader of the Opposition – though I see none – the President should appoint an Acting Leader of the Opposition ad interim. Otherwise, he is running counter to the letter of the Constitution once he has declared that the incumbent Leader of the Opposition does not enjoy majority support in his parliamentary group.

How can the President establish such fact but then not act thereupon? Is the President now above the Constitution? Can he now ignore the Constitution?

But instead of doing so, the President fails to remove the incumbent Leader of the Opposition whom the President acknowledges no longer enjoys majority support as the Constitution obliges him to do and, instead, adopts a 360 degrees circuitous argumentation that to do so implies that he has to reappoint the same person he would have just removed!

Second, President Vella’s ruling ignores and runs against precedent. No explanation is given why he has drastically abandoned previous constitutional practice. In Malta we did have an instance where the Leader of the Opposition was not the leader of the majority party in opposition but an MP hailing from that same political party.

When on 6 June 2008 Dr Joseph Muscat was elected Leader of the Labour Party replacing Dr Alfred Sant who had resigned the party leadership in March 2008, Dr Muscat did not take up his seat immediately in the House of Representatives on becoming leader of the Labour Party. He still continued to act as an MEP. In the meantime Dr Charles Mangion, then MLP Deputy Leader for Parliamentary Affairs, assumed the office of Leader of the Opposition between 5 June and 1 October 2008.

Subsequently MP Joseph Cuschieri resigned on 30 September 2008 from the House of Representatives and his seat was taken up by Labour Party Leader Dr Joseph Muscat on 1 October 2008. The latter was then appointed as the new Leader of the Opposition. This means that for nearly four months, the Leader of the Labour Party (Dr Joseph Muscat) was not the Leader of the Opposition as Dr Charles Mangion was.

Going by President Vella’s ruling, this constitutional practice was unconstitutional and that his predecessor in office was acting in breach of the Constitution when appointing Dr Charles Mangion Leader of the Opposition. Strangely enough, the President does not explain why he has departed from this constitutional precedent established by his predecessor.

Third, article 90(4) uses the words “Leader in the House of the Opposition party”. No reference is here made to “Leader of the party” as article 90(2) does. If it were to do so, then Dr Charles Mangion’s appointment as Leader of the Opposition would have been unconstitutional. Indeed, article 90 distinguishes between “leader of the party” and “leader in the House of the Opposition party” and it does so purposefully.

It does so because it is contemplating the situation where the leader of the party no longer enjoys the support of a majority of MPs who have chosen another MP from their ranks to lead them in the House (not in the political party). For the purposes of article 90(4), one cannot consider “the leader of the party” because it is this leader whose appointment as Leader of the Opposition is now being contested, irrespective of his position in the party that is immaterial for the purposes of article 90(4).

Fourth, President Vella’s ruling does not give sufficient weight to the fact that the office of Leader of the Opposition (as opposed to that of party leader) is primarily a constitutional office. Whilst article 90(2) of the Constitution gives primacy to the “Leader of the party”, in article 90(4) it gives primacy to the “leader in the House of the Opposition party”. To do otherwise means that the Constitution is interpreted in a non-sensical way which is the one President Vella has opted for.

First the President concludes that Dr Adrian Delia does not enjoy the support of a majority of MPs but instead of appointing in his stead the MP who is “leader in the House of the Opposition party”, as common sense and sound constitutional interpretation would dictate, he concludes that the Leader of the party cannot be removed from office even though he does no longer enjoy the support of a majority of MPs in the House. Quite a contradiction in terms!

Finally, the President refers to the doctrine of necessity. This is irrelevant here. What is relevant is the doctrine of necessary intendment. This is the doctrine that the Judicial Committee of the Privy Council resorts to when interpreting Commonwealth constitutions such as the Maltese. Unfortunately, there is a tendency to interpret laws literally without attempting to understand how provisions interact amongst each other. When provisions are interpreted in isolation from each other, the end result is that they are either interpreted in a conflicting manner or in a disjoined manner. Unfortunately this is what President Vella successfully does in his ruling.

 

Professor Kevin Aquilina is the Head of Department of Media, Communications and Technology Law, Faculty of Law, University of Malta
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