On Tuesday 25 July 2023, the online version of this newspaper reported Bernard Grech, the Leader of the Opposition as follows: ‘As power cuts persist this week, Grech officially called on Prime Minister Robert Abela to declare the power crisis as a national emergency, as through this, the public can be given all that is available from government to deal with the issue’.

Our Constitution does regulate when a national emergency (or as it refers to it, a ‘period of public emergency’) may be called. Article 47(2) defines such period as follows: ‘ “period of public emergency” means any period during which - (a) Malta is engaged in any war; or (b) there is in force a proclamation by the President declaring that a state of public emergency exists; or (c) there is in force a resolution of the House of Representatives supported by the votes of not less than two-thirds of all the Members of the House declaring that democratic institutions in Malta are threatened by subversion’.

As can be seen from the Constitution, a period of public emergency can be declared in three cases: (1) war; (2) subversion; and (3) a Presidential proclamation declaring such period of public emergency. The first and second instances are quite clear. The third is vague giving the government, through the President, the power to declare a period of public emergency. Nevertheless, applying the ejusdem generis rule of constitutional interpretation, that is, that the emergency that can be declared by presidential proclamation has to be of the same kind of the first two, it is difficult to comprehend how government can advise the President to declare a period of public emergency in the case of electricity power cuts. One has therefore to distinguish between a crisis and a period of public emergency. The latter is by far more serious in nature than the former.

This is not to state that the situation of electricity power cuts all across Malta is not something that is affecting negatively the livelihood of all those businesspersons who have had to close shop because of loss of electricity, or who have seen their stock damaged and good only to be thrown away. The inconvenience it has brought about to all Maltese families struck by the power cuts is something to be deplored. The impression we give to tourists is that Malta is in a shabby state, which does not plan ahead and has no foresight of the havoc that climate change brings with it.

But these power cuts do not give rise to a state of public emergency because – notwithstanding the dire inconvenience – the electricity company is taking the necessary measures to resolve the problem and government has promised compensation to those persons who have been adversely affected from the power cuts. Is this enough? No. But this does not turn a crisis situation in a period of public emergency. The issue, as always, is one of bad governance and no proper foresight of what climate change has in reserve for the Maltese population and climate.

Being a matter of a crisis – as distinct from a period of public emergency – implies that the competent minister responsible for energy has to provide all the necessary explanations for her amateurish leadership, in particular, why her ministry has abysmally failed to forecast these power cuts bearing in mind that they have occurred at the height of the tourism season where such disruptions cannot be tolerated, that government has been well aware of the effects of climate change and its repercussions on Malta, and that the ministry has expertise both in energy and climate change affairs. If the minister is incapable of coming up with sound irrebuttable explanations then either she should resign or the Prime Minister should lead her out of the cabinet room.

To return back to Bernard’s far-fetched proposal to declare a period of public emergency, it is quite clear that the situation is not as terrible as the Opposition has depicted the power cuts to be. This should not be interpreted as minimizing the hardship to the whole population, unwarranted sleepless night, extra costs in buying electricity generators, loss of revenue by catering establishments and other shops, and reputational damage to Malta, due to the energy minister’s incompetence. But there is no comparison between the current power cuts and the Second World War that we had to endure. Nor is there a total breakdown of law and order as in Syria. There are no protesters running in the street shooting any person they come by. Nor are we being bombarded by Russia as is the case of Ukraine.

Our democratic institutions – in so far as they can be so called – are not threatened by a foreign aggressor or perhaps rebels who want to take control of the most important state institutions. If at all, they are threatened by the two parliamentary political parties who ride rough shot over the Constitution and the rule of law – but this is another matter. So here Bernard is not comparing like with like: war, subversion or a huge natural calamity are one thing; sporadic power cuts, even if spreading over a few days/weeks and affecting large tracts of Maltese territory, are a totally different thing.

When a period of public emergency kicks in, the position at law changes completely from a period of normalcy to a period of an emergency. The Emergency Powers Act will come into force and government will take over completely the running of the State and, if need be, deploying the Armed Forces of Malta to carry out police duties. Curfews will be ordered, and the civil and criminal courts can be suspended to be replaced instead by military courts (court martials). If orders imparted by the military are disobeyed, the military are authorised to shoot to kill if need be on whoever disobeys the law. Areas of Malta can be closed for public access. People will be asked to remain at home and civil life – like in COVID times – will come to an end. These are, of course, only a few measures that can be adopted during a period of public emergency.

Public Emergency Law, that is, that branch of Public Law that regulates a period of public emergency, is not a new law. When Malta was a UK colony, it was referred to as Martial Law and this is basically the term used abroad. Martial Law was then declared during the two world wars and even during the 1958 riots. Again, this state of emergency is known to have been proclaimed as way back as 2,000 years ago during the era of the Roman Empire. In Rome, the position was that when martial law was resorted to, the Senate (parliament) would appoint a dictator for a period of six months to suppress the events that gave rise to that emergency and for those six months the dictator would reign supreme. Once those events were successfully addressed, the state of emergency would cease and martial law would not be any longer in force. The dictatorship would end and the dictator would return to his previous functions, normally judicial.

Martial Law must be distinguished from another department of Public Law – Military Law. Martial Law comes into being only when a period of public emergency is proclaimed. When there is no such emergency, Martial Law (or Public Emergency Law) is kept in abeyance. Military Law, however, is in force both during a period of public emergency and during normalcy. In normal times, Military Law is the law that regulates the Armed Forces of Malta. During a period of public emergency, Military Law may be extended to civilians. Whilst in periods of peace Miliary Law applies only to AFM personnel – not to civilians – during a period of public emergency military law may be extended to civilians who can end up tried and sentenced by a court-marshal, not by a court of civil and criminal jurisdiction, especially if the latter are suppressed. For extraordinary circumstances require extraordinary measures. But this is not the case of electricity power cuts – no such extraordinary measures are needed.

From the above, it is clear that electricity power cuts are not of the same kind as war and subversion. It is also clear that the measures that Public Emergency Law triggers when such a period is declared are not the type of measures that are needed to address electricity power cuts. Other totally different measures are needed in this case such as establishing a judicial committee to determine why these power cuts occurred and what plans have been put in place to avert a repetition next summer; or a committee of experts to advise the government how to go about in addressing this matter for the future; or a committee of action to determine here and now which extraordinary measures are needed to sort out the current power cuts; or obtaining foreign manpower to assist the locals in making the necessary repairs to faulty cables and advising the way forward. But calling in the military, declaring curfews, or extending court martials to civilians, suppressing the civilian (as opposed to military) courts, are not only inappropriate and unproportional measures but they are totally far-fetched. One does not need a sledgehammer to crack a nut as the Opposition is proposing. It is only a matter of good governance that we so totally lack in the Maltese islands.

In addition to the energy minister’s resignation from office for incompetence, two additional measures are of the essence. The appointment of a board of inquiry made up of a siting judge and two magistrates under the Inquiries Act to investigate maladministration by government in the electricity power cuts saga and an amendment to the Inquiries Act that obliges government to implement board of inquiry reports within six months from the day they are submitted to government. Unless all these three measures are implemented, government’s credibility would continue to be at a low ebb and moving in the direction of abysmal incompetence and bad governance.

Kevin Aquilina is Professor of law at the Faculty of Laws, University of Malta