At this time of year, one talks about resolutions. I will address not resolutions but resolve.

The so-called "Cannabis law" (as everybody seems intent on calling it) has caused quite a stir. The hipster minority are beyond themselves with joy at the prospect of smoking weed without risking jail time. The majority of citizens are worried, particularly in view of the unequivocal opinions expressed by experts, ranging from psychiatrists to people who work with drug addicts.

Many voices were raised calling on the President to refuse to sign the bill into law, leading to question whether the President has the power to do so.

Article 72(2) of the constitutional document called Constitution of Malta seems bereft of ambiguity: "When a bill is presented to the President for assent, he shall without delay signify that he assents."

If this provision is so unambiguous, why the controversy?

First things first: what is the "constitution"?

A country's constitution is the collection of rules that set up the State, defining it internally (its different political-legal characteristics and organs, its broad aims, the rights of its citizens, etc) and externally (its relationship with the other polities in the international arena).

Most of those rules are found in the document called "Constitution" – but there are others rules that make up the constitution, and they're not found in the document. These are constitutional conventions, namely unwritten rules that, though unwritten, still govern the State. For instance, collective and individual ministerial responsibility.

What are the origins of our constitution?

Not all constitutions are original. Some were written by the People they were meant to govern; others were copied.

But what is the situation when the constitution you're copying from is not written? This is one of the thorny issues that should colour debates on our constitution, given that ours is a written transplant of the British unwritten constitution. The fact that the British constitution is not written creates a number of issues in Britain that don't arise in the former British colonies that opted to have a Westminster-type constitution.

Indeed, the origins of our constitution lie in British constitutional law. In 1964, upon achieving political independence, we severed our political link with the United Kingdom. Though political sovereignty was transferred from Britain to the nascent Maltese state, legally there was continuity: our constitutional law is a continuation of British public law.

The implications of this continuity are numerous. Let's look at three of them.

First, British constitutional law is a product of British history. No constitutional rule can be taken at face value, without consideration of how it came to be. If I may borrow a metaphor from the metaphysics of biology, a written constitution is an example of political creationism (somebody created it ex nihilo); the British constitution is a prime example of political evolution, of rules responding to "environmental" (read political) stimuli and forces.

A second implication is that we keep looking at British constitutional law to inspire our interpretation of the constitution.

Thirdly, given the shared origins, we sometimes compare our constitutional document to that of other former British colonies.

Can the President refuse to sign a bill into law?

As we saw earlier, Article 72(2) of Malta's constitutional document states that "When a bill is presented to the President for assent, he shall without delay signify that he assents."

We can compare that provision to a similar provision from another former British colony, Jamaica. (Despite the lure of a lame joke, this choice has nothing to do with Jamaica's ganja image.)

Article 60(3) of Jamaica's constitutional document lays down that, "When a Bill is presented to the Governor-General for assent he shall signify that he assents or that he withholds assent."

In the Jamaican case, it is clear from the constitutional document that the Governor-General has the power to assent or not to assent. (However, according to article 32 of that constitutional document, there must be exceptions contemplated by the same document for the Governor-General not to assent. There being no such exceptions, the Governor-General's power not to assent is theoretical; but, at least, it is expressly contemplated.)

Why is the President involved in law-making?

Because article 51 of Malta's constitutional document reads, "There shall be a Parliament of Malta which shall consist of the President and a House of Representatives." In other words, the legislative organ of the Maltese State is made up of all the deputies (Government and Opposition) and the President.

Now, the President of Malta is, to a certain extent, the political heir of the British Monarch. The Monarch "owned" Britain, and British laws were "made" in the Monarch's name.

In the distant past, the Monarch communicated the Royal Assent to Parliament in person. In 1541, a law was passed in England, called "Royal Assent by Commission Act", whereby the Monarch could sign the Royal Assent. That law was still in force when Malta attained Independence in 1964.

Can the Monarch/President ever withhold assent?

The last time a British Monarch withheld the Royal Assent, thereby using the royal veto, was in 1708, when Queen Anne refused to assent to the Scottish Militia Bill.

However, it isn't precise to say that the British Monarch never has the power to withhold assent. "One of the strengths of Britain's unwritten constitution is the reserve powers it contains. In a near-revolutionary situation the occasion might still arise for the withholding of Royal Assent, if only by way of delaying tactics."[i]

In other words, if the constitutional order is at risk, then the President has the power to withhold assent despite the wording of article 72(2). Consider the hypothesis in which a Party obtains more than two-thirds of the seats in Parliament and feels emboldened enough to exile all the members of the judiciary whom it suspects of being hostile to it. Or to exile the Leader of the Opposition. Or to prolong the life of the current Parliament by fifty years. These are just three examples I'm thinking of off the top of my head; they're all acts that topple the country's constitutional order. In this case, it's clear to me that the President would have the right – probably the duty – to withhold assent.

Matters of conscience

I don't think that, if we're to embrace a strict interpretation of the constitutional document, there's the President's power to withhold assent if a bill runs counter to the personal beliefs and values held by the incumbent.

In other words, I think that George Vella was right to argue that he couldn't withhold assent. However, though Dr Vella says he would resign if an abortion law were put on his desk for his signature, in reality he would be simply washing his hands of it, as his resignation would mean the appointment of a successor who could (or could not) sign the bill into law. So, essentially, in the effort to keep abortion illegal in this country, Dr Vella's position is on a par with Pilate's innocence in preventing the crucifixion in the story of Jesus.

"Living tree"

That said, I think that we can look at another former British colony and analyse its approach to constitutional interpretation.

Canada embraces the approach according to which the constitution is interpreted as a "living tree": the interpretation of the constitution can grow to reflect evolution in society even if the text itself has not been formally amended.

Needless to say, this progressive approach assumes that the relationship between the organs of the State and the constitution is mature enough to enable a practical interpretation that respects democracy in politically less costly ways.

If we take the Maltese case, it's rather obvious that the overall sentiment in the country was against the so-called "Cannabis law". Irrespective of Dr Vella's personal convictions, as President he might have interpreted the constitution as a "living tree", a living law that reacts to its political environment. If the wind of public opinion was obviously blowing against the "Cannabis law", President Vella could have interpreted the constitution (not the constitutional document) progressively and upheld the public sentiment.

This would have required of him to go beyond the word of the constitutional document restrictively interpreted, and to uphold the democratic spirit of the constitution progressively interpreted.

Political crisis?

This might have meant the onset of a political crisis. Yes, I think the probability would have been high.

But statesmen – as opposed to functionaries – are made of such stuff: they seek innovation, progress, intelligent solutions. The President might have triggered off a political crisis that could have led to a new constitutional convention.

After all, our constitution comes from a foreign people with a history that only relatively recently somehow coincided with ours, and when it did we weren't given much say in matters affecting us. When the Maltese asked for more constitutional powers, British soldiers were ordered to open fire on us and they obeyed, on June 7, 1919.

When the English created their constitutional laws – in 1541, in 1688, in 1708, etc – England was for us  faraway. Those Englishmen (and women) who made those laws weren't our ancestors. We then happened to become a British colony not because British people settled virgin land, but because we asked them for help during the Revolutionary Wars of the 1790s.

Why should we, today, bow our heads to a constitution made by a foreign people, when our own people clearly expect the President to take on a role that is different from that of the Queen?

The crux lies in the events of December 13, 1974, when Malta became a Republic. In the Republic of Malta, the laws aren't made in the name of the President but in the name of the Republic. This means that our interpretation of the constitutional document cannot remain enchained to the colonial past but must grow to build on the achievements of the 1974 Republican "revolution".

Proud Malta

Civil society made its voice heard, but the President of the Republic didn't listen. I remember many moons ago when George Vella used to speak of "Malta supperva!"... where has that ardent, passionate, admirable, contagious patriotic resolve gone now?

(I'd like to thank Judge Giovanni Bonello and Dr Elliot Bulmer for the discussions I had with them that helped me form the opinions I expressed here. Where these opinions are wrong, it's due to my faulty thinking not their reasoning.)

HAPPY NEW YEAR!