On 6 July 2022, Parliament approved the third reading of the Various Laws Related to Assisted Procreation (Amendment) Bill, the IVF bill. The next stage in the enactment of this Bill is for the President to sign the Bill into law.

The Constitution of Malta has a provision that states that the President has to assent to bills ‘without delay’.

In practice, this has worked out for the President – or, in his/her absence – the Acting President – to sign the bill in less than a week. To take a longer period would be in breach of the constitutional provision that requires urgency on the part of the President to act.

I have been checking Parliament’s website for the text of the law but to no avail. As at 19 July 2022 (the date when this piece was written), thirteen days have already elapsed since the third reading of the IVF Bill. But, strangely enough, the Bill has not yet been published in The Malta Government Gazette.

Of course, the President might be anxiously waiting to go abroad or take his hard-earned summer holidays at the end of this month or perhaps some time in August and has not signed the bill so that it is signed off instead by the Acting President.

It is also now becoming clear why the Prime Minister unilaterally, with due haste, and without the consent of the Opposition, had Dolores Cristina removed from Acting President for he might have sensed that if the President refused to sign the IVF bill, Acting President Dolores Cristina – also on the basis of conscience – might have followed suit and then the Prime Minister would have ended up with egg on his face.

If the President does not agree with the contents of the bill, he has a right not to sign it and, as he has been evasively telling the press, it would still end up being signed by the presidency, that is, by the Acting President, if not by him. Of course, it belittles the office of the President to keep the press guessing who and when will the bill be signed as mandated by the Constitution, without being honest with them and lay the cards on the table.

But if the country has to await till the President starts his holidays or goes abroad on state business and then the Acting President signs the bill, this means that the constitutional provision related to the assent of parliamentary bills ‘without delay’ would have been breached by each and every successive day that the bill remains gathering dust in the presidential palace unsigned. But then why should the President – the guardian of the Constitution – be bothered to comply with the strict wording of the Constitution? After all, he has ignored it in the past without suffering any repercussions. Why not now as well? After all, from his perspective, his inaction serves him well. Indeed, matters of state can wait, Constitution notwithstanding.

Malta has arrived at the unfortunate situation where the Constitution ends up serving the President not the President serving the Constitution. ‘L’état c’est moi’, King Louis XIV once said. For the President’s convenience, the constitutional ‘without delay’ provision is suspended by him and him alone until he decides, time permitting, to start holidays or goes abroad on government business so that the Acting President can do the President’s job. In the meantime, the Constitution has to wait for His Excellency to start his leave or trip abroad.

This is probably the very first time in the constitutional history of Malta that the ‘without delay’ provision has been disgracefully ignored. The words ‘without delay’ are now being interpreted to read ‘at the President’s convenience and subject to his whims and caprice’.

Of course, if the President has a conscious problem to sign the bill, and he is entitled to fully exercise his freedom of conscience, then he should have resigned forthwith as other state leaders have done abroad when faced with such situations and not pass on the buck to somebody else. He cannot have the cake and eat it! But from past behaviour of the current President this is the way how things will evolve.

This is a case where the guardian of the Constitution breaches the rule of law or, better, the express written wording of the Constitution, the highest law of the land, to suit his own purposes. Needless, to say, government – the defender of the rule of law in Malta – will ignore such incident as though nothing has happened, and the conclusion is that they all lived happily ever after in the banana republic of Malta.

 

Kevin Aquilina is Professor of Law at the Faculty of Laws at the University of Malta.