The Malta Independent 28 January 2023, Saturday
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President Vella should not resign

Mark A. Sammut Sassi Sunday, 4 December 2022, 09:00 Last update: about 3 months ago

News outlets have reported that apparently President Vella is “considering the option to resign if the amendment is approved as proposed by the government. He is mainly concerned that the change will allow abortion to take place even when the mother’s life is not at risk.” (I’m quoting from this paper’s sister daily.)

President Vella is right on the second part: the change to the abortion law being proposed by the Government will definitely allow abortion – even late-term abortion – to take place also when the mother’s life isn’t at risk.

But President Vella would be completely wrong if, faced with the morally despicable obligation of having to sign into law a bill he fundamentally disagrees with on constitutional grounds, he were to resign.

There is an article in our constitutional document that states, “When a bill is presented to the President for assent, he shall without delay signify that he assents”. This is true.

But something else should be kept in mind. The Constitution doesn’t consist only of the constitutional document. There are also constitutional conventions.

A good overview of constitutional conventions can be found on the website of the Constitution Unit of University College London, a top-tier English University. The existence of, and mechanisms related to constitutional conventions are applicable to all Westminster-type constitutions. Ours is one such constitution.

“Constitutional conventions are rules of good political behaviour.

“They usually develop from established constitutional practice, but sometimes are deliberately created; and to count as a convention, they must be generally accepted to be binding.

“The fact that such rules are non-legal—and so legally unenforceable—does not mean that they lack enforcers, or sanctions; though these will be political, not legal in nature.

“Nor does this mean they are unimportant, compared to legal rules: on the contrary, conventions play a key role in the British constitution, and in other constitutions as well.

“They ensure that the constitution operates in accordance with prevailing constitutional values; existing conventions may evolve, and new ones emerge, in line with changing practice and changing attitudes.

“In this way, significant constitutional change can occur, over time, without any fundamental change in the law.

“Constitutional conventions are at work across all branches of government—legislative, judicial, and executive.

“Each embodies a principle of responsible government, or selfrestraint: not exercising legal powers to the full; not abusing public power; and respecting the constitutional role and functions of the other branches of government.

“Political conventions are inherently flexible, and do not always have close or singular definitions.

“Some conventions are firmer and clearer than others; all conventions can evolve; and when conventions are stress tested at times of political or constitutional crisis, they can evolve quite rapidly.”

Each one of these points indicates that President Vella can decide to create a new constitutional convention: the right of the President to refuse to assent a law that is inherently anti-constitutional but cannot be impugned by any individual citizen.

This course of action would be much more effective than a resignation.

The abortion amendment clearly violates the right to life safeguarded by the constitutional document, but nobody has the standing to go to Court for a violation of that right unless it concerns them directly. Since the unborn will be deprived of that right, they cannot be represented in Court unless there is a concrete case.

The person who most effectively can stand up and safeguard the right to life on behalf of everybody, including the unborn, is the President of the Republic, the Head of the State who represents the totality of the people forming the Republic. Because the violation in this case isn’t a res privata but a res publica. The President can effectively safeguard the right to life as violated by the amendment being proposed by the Government. It is a human right of the individual in a public, as opposed to private, sense.

But I also urge the President to keep in mind that the right to life is inherent in our constitutional setup. Even if the constitutional document were silent on the right to life, that right would still exist owing to it being inherent to our constitutional setup. In a liberal democracy, the right to life is “genetically” encoded in the political system. In a way, the right to life is both political and legal. The law by itself is not enough to protect it; politics has to protect it too. Only a believer in totalitarianism, or its past incarnation absolutism, or simply who is unaware of the history of Europe, believes that the State can mandate the destruction of a human life.

The Westminster constitutional tradition, to which Malta by historical accident belongs, allows the creation of new constitutional conventions.

I urge President Vella not to throw in the towel but to have the courage to create a new constitutional convention. The majority of former Presidents would support him. I urge President

Vella to create the constitutional convention of refusing to give the presidential assent when a bill manifestly violates the constitution in a public and collective, as opposed to individual, way.

George Vella has been given the privilege of serving his country by occupying its highest office. He shouldn’t shy away from the responsibilities of this privilege.

Then again, we will understand him if he simply gives in without a fight. We will understand; we’re all human after all. In Nikos Kazantzakis’ novel The Last Temptation of Christ, the Devil appears by the cross in the guise of a blonde guardian angel, and tells Jesus that he need not go through more pain. The angel removes the crown of thorns from Jesus’ head, and takes Jesus away from the Golgotha to get married to Mary Magdalene, and have a family.

This is not a religious parting shot, as The Last Temptation of Christ is considered a heretical novel. But I think the comparison is pertinent, and the message obvious.

The petition

The www.salvani.eu petition is obviously an extremely important step in the right direction.

And I encourage everybody to sign it.

But there are at least two shortcomings which I’d like to draw the attention of the petition’s organisers to.

First, not everybody has got an email address, particularly people of a certain age. The organisers should take steps to permit people without an email address to participate in this important exercise.

Second, not everybody is keen on letting their district MPs know their position. There are a thousand reasons why people would want to keep their opinions concealed – the same reasons that account for the fact that we don’t vote by show of hands in elections. The petition should allow people to opt not to have their signature notified to their district MPs.

This means that, unless these two shortcomings are addressed, the number of people who sign the petition will not reflect the true size of that chunk of the Maltese people who are against the introduction of on-demand, late-term abortion.

 

Abortion and Sophistication

 

     

If we were to call a spade a spade, we would admit that the frenzy to introduce abortion in this country stems from a hazy need certain Maltese feel to join “Modernity”. Hazy because very few, if any, have been able to define it in clear terms. But the need is clearly felt, though I think it’s expressed in the wrong fashion.

As historically inaccurate as it may have been, 20th-century popular culture considered abortion as a sign of progress and modernity. The best local proponent of this attitude is probably Alfred Sant. Whenever he writes about abortion, you can catch a glimpse of his implied invitation for us to open the door to “Modernity”. Another good local proponent is journalist Herman Grech, who’s even written a pro-choice theatrical piece.

To my mind, this “Modernity” is outdated. It’s “1960s Modernity”.

I’ve found a useful exposition of this phenomenon in a dialogue from a 1970 movie, which captured the mood of the time. It reflects the 1960s flavour of this Modernity, confirming that, so many decades later, the sexiness has faded away.

It’s from Airport, starring Dean Martin (an airplane captain) and Jean Seberg (an airhostess): Captain: But we were in a hurry, and... You’re

sure?

Hostess: Do you mean am I sure I’m pregnant or

am I sure you’re the father?

Captain: Come on, Gwen. I didn’t...

Hostess: The answer to both questions is yes. Captain: You know I wasn’t asking...

Hostess: You have a perfect right to. I want you to know something, Vern. That there hasn’t been anyone else but you. You see, there couldn’t be. I happen to love you. I’m afraid I was careless. I stopped taking the pills because they were making me gain weight. So instead of being plump, I’m pregnant. Stop twisting your wedding ring. I know you’ve got a wife. I know you can’t marry me. I knew it in the beginning.

Captain: I won’t make things difficult for you. I’ll

work it out myself.

Hostess: Don’t be ridiculous.

Captain: You don’t think I’d walk out and ignore the whole thing? I’ll take care of you. I’ll make sure you don’t go to some butcher two flights up over a drugstore. I hear Sweden’s the best place. Good doctors, good hospitals, medically safe. It’s very quick, very simple. One minute you have it, next minute you don’t. There’s no danger of complications.

Hostess: That is, no physical complications. I’m

not so sure about the moral ones.

Captain: You have religious scruples?

Hostess: No. No... But the strangest thing happened to me today when the doctor told me. I mean, I’ve known other girls in the same situation toss it off with bad jokes like, “I’ve got a bun in the oven” or “Captain, we’ve got an extra passenger on board”. I knew I’d react the same way. Very modern, very sophisticated. But I certainly didn’t. I was suddenly filled with a sense of wonder and awe. I don’t want to sound mystical or anything but I am carrying someone who’s part of us. I’m not so sure I want to lose it.

Captain: And if you have the baby, then what? Hostess: Well, I suppose adoption would be the answer. They’re very careful nowadays. They find the right family. They’re very careful, all the arrangements are made beforehand. And the records are kept secret, you know.

Captain: And you’ll never see the baby.

Hostess: I suppose in time I’ll be sensible but I’ve gotta have time to think. Vern, thank you for caring. Most men would have said “So long, girl. Tough luck.”

Captain: Not this one.

Hostess: You know, I think you really do love me a little. It makes it harder to decide, but easier to bear.

 

 

 

 

 

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