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The President
Introduction:
The president is the: Head of state Head of the executive
(government)
Since the Constitution of Malta is based on the Westminster
model, the office of the president shares various similarities with
the British Monarchy.
The British political system is in form monarchical. But it is a
"constitutional" monarchy, as opposed to an absolute monarchy. That
is to say, the governmental powers which as a matter of legal form
are vested in the Queen are in practice exercised according to the
laws, customs and conventions of the constitution; and they are
exercised either by the Queen on the advice of her Ministers or by
the Ministers in her name. This principle applies both to the
Queen's common law prerogative powers and to her statutory
powers.It is a product of English political history from the
seventeenth century, when the monarch ceased to govern either
himself directly or through delegates limited only by the law. The
modem principle is secured by means of constitutional
conventions.
Jennings suggested that by Constitutional conventions there was
a transference of the Royal prerogative to the Cabinet and he
asserts this on the authoritative statement of Dicey, the
constitutional conventions are rules for determining the mode in
which the discretionary powers of the Crown ought to be exercised.
The living meaning of the prerogative today is, that a group of
powers of the Crown not conferred by statute, but recognised by the
common law as belonging to the Crown.
Malta, being an ex-British Colony, has adopted a similar
constitutional framework with respect to this prerogative, which
was firstly exercised by the Governor General representing the
Queen when Malta still had a monarchy following Independence in
1964. Then, these residual prerogative powers were inherited by the
President in 1974, when Malta became a Republic. The president is
in his own right, the Head of State of Malta but has retained the
figurative and symbolic function.
Before discussing the president within the workings of our
constitution, the fact that our Head of State and executive is a
president does not make the Maltese system a Presidential one (a
classical example of which is the USA); rather our president can be
compared more favourably with the president of the Italian
Republic, the King of Spain as well as the British Monarchy. This
is because unlike the president of the USA who exercises real
political power as Head of State and Head of the Executive, our
president does not actually govern. Rather, this is accomplished by
the PM and the Cabinet of ministers who hold the political reality
and who conduct and have the general direction of the government:
Article 79(1) There shall be a Cabinet for Malta which shall
consist of the Prime Minister and such number of other Ministers as
may be appointed in accordance with article 80 of this
Constitution. (2) The Cabinet shall have the general direction and
control of the Government of Malta and shall be collectively
responsible therefore to Parliament.
In the semi-presidential system, like the Parliamentary system
there is both a President and a Prime Minister, but unlike the
Parliamentary system the President may have significant day-to-day
power. When his party controls the majority of seats in the
National Assembly the president can operate closely with the
parliament and prime minister, and work towards a common agenda.
When the National Assembly is controlled by opponents of the
President however, the president can find himself marginalized with
the opposition party prime minister exercising most of the power.
Though the prime minister remains an appointee of the president,
the president must obey the rules of parliament, and select a
leader from the house's majority holding party. Thus, sometimes the
president and PM can be allies, sometimes bitter rivals. This
situation is known as cohabitation. The French semi-presidential
system was developed at the beginning of the Fifth Republic by
Charles de Gaulle.
Appointment: Article 48(1) appointed by Resolution of the House
of Representatives. Thus he is described as a figurehead since his
appointment is dependant on the PM and on the other
members of the House.
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The office of the President shall become vacant: Article
48(3)(a) - on the expiration of 5 years from the date of the
appointment to that office which
term is not renewable as stipulated in Article 123(2), or
Article 48(3)(b) - Resolution of the House of Representatives on
the ground of inability to perform
the functions of his office or misbehaviour. Misbehaviour or
inability need not be proved but only alleged. This can be
contrasted with the
removal of: judges of the Superior Courts, magistrates of the
Inferior Courts, the AG, who have greater security of tenure.
Firstly, a 2/3 majority of the House is required and secondly, the
grounds for removal (misbehaviour and inability to perform the
functions of office) must be proved.
The president of the Italy is irremovable, and his seven years
of office cannot be shortened. He may, however, be impeached for
high treason or offenses against the constitution, even while in
office. He is elected by a college comprising both chambers of
Parliament, together with three representatives from every region.
The two-thirds majority required guarantees that the president is
acceptable to a sufficient proportion of the populace and the
political partners.
Article 48(2) - A person shall not be qualified if: he is not a
citizen of Malta he holds or held the office of Chief Justice or
other Judge of the Superior Courts he was not eligible for
appointment in the Public Service Commission, the Broadcasting
Authority, or
the Employment Commission.
The functions in office:1) Presidential Assent
Article 51 - There shall be a Parliament of Malta which shall
consist of the President and a House of Representatives.
Article 72 - (1) the power of Parliament to make laws shall be
exercised by bills passed by the House of Representatives and
assented to by the President. - (3) A bill shall not become law
unless it has been duly passed and assented to in accordance with
this Constitution.
Article 72(2) - when a bill is presented to the President for
assent, he shall without delay signify that he assents.
The presidential assent of the bills is runs parallel to the
British system which similarly requires the Royal assent. Both the
president in Malta, and the monarch in the UK, is bound by
convention to assent to the bill and in fact the last queen to
withhold her assent was Queen Anne in 1708. It must be mentioned
that under the Maltese system, this convention has made its way
into our constitution and thus infringement of Article 72 provides
ground for misbehaviour.
Should the president refuse to assent the bills, he can: Either
be removed from office by a resolution of the House and replaced by
a
complacent person; however this would give rise to political
ramifications. Or have the president vacate office temporarily or
sent on vacation, in whose absence a
substitute may temporarily be appointed as provided for in
Article 49 and give his assent to the bills.
Reference here can be made to the King of Belgium who in 1990
refused to give Royal Assent to a bill liberating Belgiums abortion
law. As a counter-measure, the government declared him unable to
reign and under such circumstanes the government as a whole was
vested with the role of head of state and resultently all members
of the government signed the bill. The government declared the King
capable of reigning again the next day.
In this respect constitutional historians visualised the
situation where a government might coerce through parliament,
certain measures which are not in the countrys best interests.
2) Head of the Executive Article 78(1) - The executive authority
of Malta is vested in the President. However Article 78(2) provides
- The executive authority of Malta shall be exercised by the
President, either directly or through officers subordinate to
him, in accordance with the provisions of this Constitution. Thus,
it can be seen that in reality, the president in a
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parliamentary system does not exercise real political power but
devolves power to the PM who together with his cabinet carry out
the functions of the executive.
This provision evidences the derivation of the Maltese
Constitution from the Westminster system which commonly features a
ceremonial head of state, who is somewhat different from the actual
head of government, and who possesses reserve powers that are not
normally exercised.
An acute distinction can be drawn between our system and a
presidential system such as that of the USA where the president
together with the Cabinet composed of the Vice President and the
Secretaries of the 15 executive departments make up the executive
branch.
3) Prerogative Powers The exercise of the prerogative powers is
regulated by constitutional conventions, one of the most
important being the requirement for the president to act in the
advice of the ministers he appointed. Article 85(1) - In the
exercise of his functions the President shall act in accordance
with the advice of the Cabinet or a Minister acting under the
general authority of the Cabinet except in cases where he is
required by this Constitution or any other law to act in accordance
with the advice of any person or authority other than the
Cabinet
For example, the president as the power to exercise a
prerogative of mercy, covered under Article 93, to be clement or
grant pardon to a convicted person. Yet, even in this situation,
the president shall not act by his own initiative since he must
receive the authority of the Cabinet prior that he can grant a
pardon.
In other instances where the president appoints Ministers
(Article 80), members of the judiciary (Articles 96 & 100), AG
(Article 91), Parliamentary and Permanent Secretaries (Articles 88
& 92), and public officers, he is actually acting on advise of
the Prime Minister or other authorities.
Presidential Personal Discretion However Article 85(1) also lays
down presidential personal discretion in the following
circumstances - Provided that the President shall act in
accordance with his own deliberate judgment in the performance of
the following functions-(a) in the exercise of the powers relating
to the dissolution of Parliament conferred upon him by the proviso
to article 76(5);
Article 76(5) - In the exercise of his powers under this article
the President shall act in accordance with the advice of the Prime
Minister, provided that -(a) if the House of Representatives passes
a resolution, supported by the votes of a majority of all the
members thereof, that it has no confidence in the Government, and
the Prime Minister does not within three days either resign from
his office or advise a dissolution, the President may dissolve
Parliament; Thus the Constitution makes the President stronger than
a defeated PM, and ensures the functionality of a responsible
government. (b) if the office of Prime Minister is vacant and the
President considers that there is no prospect of his being able
within a reasonable time to appoint to that office a person who can
command the support of a majority of the members of the House of
Representatives, the President may dissolve Parliament; and(c) if
the Prime Minister recommends a dissolution and the President
considers that the Government of Malta can be carried on without a
dissolution and that a dissolution would not be in the interests of
Malta, the President may refuse to dissolve Parliament.
(b) in the exercise of the power to appoint or remove the Prime
Minister to or from office conferred upon him by article 80 and
81(1);
In Malta, the PM must be chosen by the president and it is that
person who, in the presidents judgement is best able to command the
majority of the members of the house. However, in a stable bi-party
system, this choice is not a matter of real discretion as the
choice will be an obvious and conditioned one, based on the
convention that the PM is leader if the winning part with the
majority of representation in parliament.
In the event/situation of a multi-party system, a president
would in actual fact, be required to exercise real personal
discretion within limits, since if no party obtains the required
absolute majority, then the president may determine which one of
the parties will be able to carry on the government with the
support of one of the other parties, or whether a coalition shall
be formed. However, whoever is chosen must necessarily be able to
command the majority of the House.
Article 81(1) If the House of Representatives passes a
resolution, supported by the votes of a majority of all the members
thereof, that it has no confidence in the Government,
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the President may remove the Prime Minister from office once
three days have elapsed and he has decided not to dissolve
Parliament.
(c) in the exercise of the powers conferred upon him by article
83 of this Constitution (which relates to the performance of the
functions of the Prime Minister during absence, vacation or
illness);
(d) in the exercise of the power to appoint the Leader of the
Opposition and to revoke any such appointment conferred upon him by
article 90; and
(e) in signifying his approval for the purposes of article
110(4) of an appointment to an office on his personal staff.
Article 85(2) - Where by this Constitution the President is
required to act in accordance with the advice of any person or
authority, the question whether he has in any case received, or
acted in accordance with, such advice shall not be enquired into in
any court. Thus even though the President is a mere figurehead,
such provisions allow the president the immunity to exercise and
impose his power over that of the PM.
Therefore, although the constitution envisages situations where
the president can act independently in the majority of cases, the
president acts on the authority of others, largely the PM; whether
he has done so or not is really a question of a political nature.
Since, if the president ignores the PMs advice, then the president
is either politically stronger than the PM, or he is weaker than
the PM and therefore, he will be removed from office. Thus such a
situation would either bring about the resignation or dismissal of
the PM or of the president, depending on whom is politically
stronger at that time. Yet, in general the president does follow
the advice given to him by his PM and Ministers.
The constitution does not expressly define or limit the
functions of the president. In reality the president is the head of
state, of the whole nation and not simply of the structure that is
organised into a state. Therefore, the president is also seen as a
representative of Malta. This role makes it necessary for the
president to promote the cultural, ethical and social values that
underpin the state and nation.
The president may neither be partisan nor sectarian and there
are values derived from the constitution which the president is
duty bound to promote, such as the value of work, fundamental human
rights, environment and historical patrimony as well as democracy,
the sovereignty of the law over arbitrary will, which are values
enshrined in the constitution and the workings of constitutional
law.
To enjoy the confidence of the various political parties and
thus to perform the functions of his office effectively, the
president, apart from being politically impartial, keeps distant
from the parliamentary functioning and only intervenes when
parliament reaches a state of impasse.
This is clearly reflected in Malta, where having a relatively
stable political system, the President does not intrude on their
proceedings.
The President is the guardian of the constitution as he oversees
the smooth functioning of the various political and national
systems and ensures that the constitutions legitimacy is preserved
for the benefit of the nation as a whole.
The president is also a prominent political figure who rather
than confronting the various political personalities, works
harmoniously with them to promote just measures for amelioration of
the state. Thus the president is the symbol of national unity.
A strong PM will result in a weak president
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President of the USA
The President of the United States is: Head of State Chief
Executive of the Federal Government Commander in Chief of the armed
forces.
Under the U.S. Constitution, the U.S. president serves a
four-year term and may be re-elected only once. Before 1951, the
President could serve for as many terms as he wanted. After two
terms as President,
George Washington chose not to run again. All other Presidents
followed his example until Franklin D. Roosevelt successfully ran
for office four times. He, however, did not complete his fourth
term of office because he died in 1945. Six years later, Congress
passed the 22nd Amendment, which limits Presidents to two
terms.
Elections take place every four years on the Tuesday after the
first Monday in November. Voters are required to vote on a ballot
where they select the candidate of their choice. The Presidential
ballot is actually voting "for the electors of a candidate" meaning
that the voter is not actually voting for the candidate, but
endorsing members of the Electoral College who will, in turn,
directly elect the President.
Requirements to hold officeArticle 2, Section 1, of the U.S.
Constitution sets the requirements one must meet in order to become
President:
1. A natural-born citizen of the United States 2. Thirty-five
years of age 3. Resident of the United States for 14 years.
SuccessionThere is a well-defined sequence of who should fill
the Presidential office, upon the death, resignation, or removal
from office (by impeachment and subsequent conviction) of a sitting
President:
1. the Vice President of the United States 2. the Speaker of the
House of Representatives 3. the President pro tempore of the United
States Senate.
Presidential powers
Presidential executive powersWithin the executive branch itself,
the president has broad powers to manage national affairs and the
workings of the federal government.
The president can issue rules, regulations, and instructions
called executive orders, which have the binding force of law upon
federal agencies but do not require congressional approval.
As commander-in-chief of the armed forces of the United States,
the president may also call into federal service the state units of
the National Guard. In times of war or national emergency, the
Congress may grant the president even broader powers to manage the
national economy and protect the security of the United States.
The president nominates, and the Senate confirms, the heads of
all executive departments and agencies, together with hundreds of
other high-ranking federal officials.
The President is also responsible for preparing the budget of
the United States, although the Congress must approve it.
Presidential legislative powers Despite the constitutional
provision that "all legislative powers" shall be vested in the
Congress, the
president, as the chief formulator of public policy, has a major
legislative role. The president can veto any bill passed by
Congress and, unless two-thirds of the members of each
house vote to override the veto, the bill does not become law.
Much of the legislation dealt with by Congress is drafted at the
initiative of the executive branch. In
annual and special messages to Congress, the president may
propose legislation he believes is necessary. The most important of
these is the annual State of the Union Address traditionally given
in January. Before a joint session of Congress, the President
outlines the status of the country and his legislative proposals
for the upcoming year. If Congress should adjourn without acting on
those proposals, the president has the power to call it into
special session.
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But beyond this official role, the president, as head of a
political party and as principal executive officer of the U.S.
government, is primarily in a position to influence public opinion
and thereby to influence the course of legislation in Congress.
Presidential judicial powers Among the president's
constitutional powers is that of appointing important public
officials.
Presidential nomination of federal judges, including members of
the Supreme Court, is subject to confirmation by the Senate.
Another significant power is that of granting a full or
conditional pardon to anyone convicted of breaking a federal law -
except in a case of impeachment. The pardoning power has come to
embrace the power to shorten prison terms and reduce fines.
Presidential powers in foreign affairsUnder the Constitution,
the president is the federal official primarily responsible for the
relations of the United States with foreign nations.
The president appoints ambassadors, ministers, and consuls,
subject to confirmation by the Senate, and receives foreign
ambassadors and other public officials.
With the secretary of state, the president manages all official
contacts with foreign governments. On occasion, the president may
personally participate in summit conferences where chiefs of
state
meet for direct consultation. Thus, President Woodrow Wilson
headed the American delegation to the Paris conference at the end
of World War I; President Franklin D. Roosevelt met with Allied
leaders during World War II; and every president since then has sat
down with world leaders to discuss economic and political issues
and to reach bilateral and multilateral agreements.
Through the Department of State, the president is responsible
for the protection of Americans abroad and of foreign nationals in
the United States. The president decides whether to recognize new
nations and new governments, and negotiate treaties with other
nations, which become binding on the United States when approved by
two-thirds of the Senate.
The president may also negotiate "executive agreements" with
foreign powers that are not subject to Senate confirmation.
ExecutiveThe Executive branch consists of the President and his
delegates. The President is both the head of state and head of
government, as well as the commander-in-chief of the military, and
the chief diplomat.
Legislative Congress is the legislative branch of the federal
government of the United States. It is bicameral, comprised of the
House of Representatives and the Senate.
The House of Representatives consists of members apportioned
among the states by population, each of whom serves for a two-year
term.
In contrast, each state has two Senators, regardless of
population. The senators serve six-year terms (one third of the
Senate stands for election every two years).
Members of the House and Senate are elected by
first-past-the-post voting in every state except Louisiana and
Washington, which have runoffs.
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Separation of Powers
Separation of powers embodies a philosophy of balancing powers
between different bodies so that no power centre can act without
the co-operation of the other, and each checks on the other.
A theory of separation of powers has been recognised since at
least the time of Aristotle. In fact the classical doctrine
favoured by Aristotle would divide power according to class
interests, these comprising monarchy, aristocracy and democracy.
This version of the separation of powers is partly reflected in the
British institutions of monarch, House of Lords and House of
Commons, and was a powerful influence upon the 1688 Revolution.
Montesquieu in L'Esprit des Lois (1748), following attempts by
Aristotle and Locke, posed the most influential version of this
doctrine by dividing the powers of government into: (i)
legislative, (ii) executive, and (iii) judicial.
Montesquieu was concerned with the preservation of political
liberty. "Political liberty is to be found," he says, "only when
there is no abuse of power. But constant experience shows us that
every man invested with power is liable to abuse it, and to carry
his authority as far as it will go. ... To prevent this abuse, it
is necessary from the nature of things that one power should be a
check on another. ... When the legislative and executive powers are
united in the same person or body . . . there can be no liberty. ..
. Again, there is no liberty if the judicial power is not separated
from the legislative and the executive. . . . There would be an end
of everything if the same person or body were to exercise all three
powers."
A complete separation of powers, in the sense of a distribution
of the three functions of government among three independent sets
of organs with no overlapping or co-ordination, would bring
government to a standstill.
What the doctrine must be taken to advocate is the prevention of
tyranny by the conferment of too much power on any one person or
body, and the check of one power by another. This doctrine was
taken over by the fathers of the American Constitution.
As a matter of fact the doctrine has not received much
acceptance either in its country of origin or other European
countries. In fact in parliamentary systems, governmental powers
are co-ordinated by the effective part of the executive which stem
from the legislature in which its members sit. The doctrine may be
said to have received its main application in democratic countries
by securing the independence of the courts from the control of the
executive.
The United States Constitution goes further than any other in
applying the doctrine. Thus: the federal executive power is vested
in the President, the federal legislative power is vested in
Congress, and the federal judicial power is vested in the Supreme
Court.
1. The President and his Cabinet are not members of Congress
(except that the Vice-President presides over the Senate), and they
are not responsible to Congress.
2. The President holds office for a fixed term of 4-years and he
is not necessarily of the same political party as the majority in
either House of Congress.
3. The President and Cabinet cannot initiate Bills or secure
their passage through Congress, but he may recommend legislation in
a message to Congress.
But the separation of powers is by no means complete, the three
branches of government being connected by a system of "checks and
balances."
4. Thus the President may veto measures passed by Congress,
though his veto may be overridden by a two-thirds vote of both
Houses.
5. The President has the power to negotiate treaties, but they
must be ratified by a two-thirds vote of the Senate.
6. The Supreme Court, asserting the continued significance of
the separation of powers, has held that Congress has no power to
veto executive acts of the President.
7. The Senate may refuse to confirm certain appointments made by
the President, notably that of judges of the Supreme Court; and the
judges of that court, although appointed for life, may be removed
by impeachment.
8. In the landmark case of Marbury vs Madison (1803), Chief
Justice Marshall declared that the court is entitled to review the
constitutionality of legislation passed by Congress and Acts of the
president. This is crucial to the American constitution, which
incorporated as its central feature, the principle of the
separation of powers.
The three branches of government are therefore interrelated;
they act as checks on each other.
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France Semi-presidential System
The semi-presidential system is a system of government that
features both a prime minister and a president who are active
participants in the day to day functioning of government. It
differs from the parliamentary system in that it has a popularly
elected president who is not a ceremonial figurehead and it differs
from the presidential system in that it has an executive prime
minister who has some responsibility to the legislature.
In the Constitution of the Fifth French Republic not only has
the Parliament other powers than the strictly legislative, but the
law-making power is divided between the Parliament (loi) and the
government (rglement), so that the Parliament may only make laws
dealing with matters enumerated in article 34, while all others
matters fall within the province of ministerial regulation.
In Since 1962, Charles de Gaulle obtained an amendment to the
constitution whereby the president would be directly elected by
citizens. Given France's runoff voting system, this means that the
presidential candidate is required to obtain a nationwide majority
of non-blank votes at either the first or second round of
balloting, which presumably implies that the president is somewhat
supported by at least half of the voting population; this gives him
considerable legitimacy. Despite his somewhat restricted de jure
powers, the president thus enjoys considerable aura and effective
power.
As a consequence, the President is the pre-eminent figure in
French politics. He names the Prime Minister; though he may not de
jure dismiss him, if the Prime Minister is from the same political
side, he can, in practice, have him resign on demand. He appoints
the ministers, ministers-delegate and secretaries. When the
President's political party or supporters control parliament, the
President is the dominant player in executive action, choosing
whomever he wishes for the government, and having it follow his
political agenda (parliamentary disagreements do occur, though,
even within the same party).
However, when the President's political opponents control
parliament, the President's dominance can be severely limited, as
he must choose a Prime Minister and cabinet who reflect the
majority in parliament, and who will implement the agenda of the
parliamentary majority. When parties from opposite ends of the
political spectrum control parliament and the presidency, the
power-sharing arrangement is known as cohabitation.
The French parliament is a bicameral legislature comprising a
National Assembly (Assemble Nationale) and a Senate. The National
Assembly deputies represent local constituencies and are directly
elected for 5-year terms. The Assembly has the power to dismiss the
cabinet, and thus the majority in the Assembly determines the
choice of government. Senators are chosen by electoral college for
6-year terms (originally 9-year terms), and one half of the seats
are submitted to election every 3 years starting in September
2008.
The Senate's legislative powers are limited; in the event of
disagreement between the two chambers, the National assembly has
the final say, except for constitutional laws. The government has a
strong influence in shaping the agenda of Parliament.
U.K. - No strict separation of powers
The English constitution does not embody a strict separation of
powers and in fact the Crown has always been an element in the
exercise of all three kinds of powers:
executive (the Queen's government. Her Majesty's ministers),
legislative (the Queen in Parliament, throne in the House of Lords,
royal assent to Bills), and judicial (Royal Courts of Justice, Her
Majesty's judges, indictment in the name of the Queen).
1. The Cabinet and other ministers are members of the
legislature. 2. Most notably, the Lord Chancellor presides over the
Second Chamber, is the head of the judiciary and is a
Cabinet Minister. 3. The Home Secretary exercises the
prerogative of mercy, and the Attorney-General may enter a
nolle
prosequi to a prosecution on indictment.4. Ministers and
government departments have powers of delegated legislation, while
ministers and
administrative tribunals have power to make decisions affecting
private rights, and local government authorities may make byelaws
for the good rule and government of their area.
5. The Houses of Parliament do not act exclusively as parts of a
legislature but also set up select committees of inquiry and
committees to scrutinise the administration.
6. The House of Lords, besides being the Second Chamber, acts in
another capacity as the final court of appeal.
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7. Courts must have some executive powers to prevent
interference with their proceedings and to secure enforcement of
their decisions. Final appeal from certain overseas courts, as well
as in certain kinds of cases in this country, lies to the Judicial
Committee of the Privy Council, technically an advisory executive
organ of the Crown.
8. From the doctrine of the sovereignty of Parliament it follows
that while the power of making law belongs to Parliament, the duty
of the judges is to apply it - interpreting it where necessary -
whatever their views about the wisdom, justness or morality of the
legislation at issue.
9. The Human Rights Act 1998 is particularly relevant in the
light of the decision of the European Court of Human Rights in
McGonnell v. U.K.(Position of Deputy Bailiff of Guernsey as judge
and member of the legislature: breach of Art. 6 E.C.H.R.)
10. Parliamentary sovereignty is the concept in British
constitutional law that a parliament has ultimate authority over
all affairs of government, including the monarch and the courts. In
theory, this seems to be in direct opposition to the concept of
separation of powers. In the British system, however, there is a
considerable amount of de facto independence among agents
exercising various functions, and Parliament is limited by various
legal instruments, international treaties and constitutional
conventions.
Independence of the judiciary from the executive The judges of
the superior British courts may not be removed except for
misbehaviour in their office or
(probably) conviction of some serious offence. Removal is by the
Crown. Removal may be on an Address by both Houses of Parliament,
but it is not certain whether such an Address is necessary.
There are now statutory retiring ages for all judges (except the
Lord Chancellor) and magistrates. Circuit judges and magistrates
are removable at the instance of the Lord Chancellor on the grounds
of incapacity or misbehaviour under various statutes.
The provision as regards the ascertainment and establishment of
salaries is secured by the practice of passing permanent Acts
defining judicial salaries and charging them on the Consolidated
Fund. The executive, therefore, cannot bring pressure to bear on
the judges by threatening to reduce their salaries, nor do their
salaries come up for annual review (with opportunity for discussion
of their conduct) by the House of Commons as do most estimates of
public expenditure.
The modem significance of the independence of the judges is that
they are free from control or influence by the Government in the
administration of justice. Even the Houses of Parliament do not
seek to interfere in the conduct of current litigation.
Separation of Powers according to the Maltese constitution:
Parliamentary system of government
The Maltese constitution is essentially derived and based upon
the principles of the British Constitution, with some notable
exceptions, including the fact that the Maltese constitution is
rigid, written and supreme, the latter of which is provided in
article 6 or our constitution: which holds that:
6. Subject to the provisions of sub-articles (7) and (9) of
article 47 and of article 66 of this Constitution, if any other law
is inconsistent with this Constitution, this Constitution shall
prevailand the other law shall, to the extent of the inconsistency,
be void.
In contrast, the British constitution is flexible, unwritten and
it is the British Parliament that is sovereign, not the British
constitution.
However, in both the Maltese and the UK constitutions are
referred to as a unitary constitution, where all powers are
exercised by or derived from a central Parliament, which may
delegate powers to subordinate authorities. Within both these
system, it can be said that there is a break down of the
traditional notion of the separation of powers, namely in relation
to the powers if the executive and legislative.
The formal document of our constitution divides the functions of
the legislative, executive and judiciary into 3 separate chapters.
Although the constitution keeps them separate when written, in
actual fat, the relationship between the executive and legislative
can be said to be fused, giving rise to what is know as a
Parliamentary democratic government.
The basis of this system is that there is a body elected by the
people, the house of representatives (house of commons in the UK)
and it is from this body that the executive is drawn i.e. the
executive is formed from these elected members of Parliament. As a
result, the executive is responsible to Parliament and there exists
the concept of a responsible Parliamentary government. Therefore,
Parliament is the link between the people and the government and
there can still be the assurance of the peoples political
sovereignty through their elected representatives who govern for
them.
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Formation of the ExecutiveThe executive authority under our
constitution id vested in the president (who is the head of state)
and who also forms Parliament together with the House of
Representatives. Therefore, the president is a link between the
legislative and executive. In fact, the president is required to
give his assent (without delay) to the enactment of a bill by the
House of Representatives; he is bound to give his assent by the
constitution. The monarch in the UK is also a member of both the
executive and Parliament, and by convention, gives her assent).
However, the president (and monarch) is referred to as figure heads
of state because he largely acts on the advice of the PM. In fact,
in a Parliamentary system of government it is the PM who is the
central political figure and can be equated to the president of the
USA, with respect to his authority and political powers.
The President does retain some residual powers and this can be
seen in the choice of PM from the elected members of Parliament.
The people elect the members of Parliament not the government, yet
our constitution provides that there shall be a cabinet for Malta,
which shall consist of the PM and other ministers:
70. (1) If at any sitting of the House of Representatives any
member who is present draws the attention of the person presiding
at the sitting to the absence of a quorum and, after such interval
as may be prescribed in the Standing Orders of the House, the
person presiding at the sitting ascertains that a quorum of the
House is still not present, the House shall be adjourned.
And the cabinet shall have the general direction and control of
the government of Malta:
(2) For the purposes of this article
(a) a quorum of the House of Representatives shall consist of
fifteen members; and(b) the person presiding at the sitting of the
House shall not be included in reckoning whether there is a quorum
present.
Therefore, our government is formed, as provided in the
constitution, by the president who firstly appoints the PM. Section
80 holds that the president shall appoint as PM:
80. Wherever there shall be occasion for the appointment of a
Prime Minister, the President shall appoint as Prime Minister the
member of the House of Representatives who, in his judgment, is
best able to command the support of a majority of the members of
that House and shall, acting in accordance with the advice of the
Prime Minister, appoint the other Ministers from among the members
of the House of Representatives:
Provided that if occasion arises for making an appointment to
the office of Prime Minister or any other Minister while Parliament
is dissolved, a person who was a member of the House of
Representatives immediately before the dissolution may be appointed
as Prime Minister or any other Minister as if, in each case, such
person were still a member of the House of Representatives, but any
person so appointed shall vacate office at the beginning of the
next session of Parliament if he is not then a member thereof.
Thus, the presidents choice is actually an obvious one where
there is a stable bi-party system with a clear leadership (as in
Malta) and therefore, the choice of PM is a matter of convention
regulated by the necessity that the PM must be able to hold the
majority in the House of representatives, who is usually the leader
of the political party that has attained a majority represented in
Parliament.
In a multi-party system, the choice of PM may not be so clear
and the president/monarch would have to exercise real choice for
e.g. in Italy pre 1990. In addition, the multi-party system
coalitions may be entered into and therefore, if it were known that
a third and other minority parties represented in Parliament, were
willing to enter a coalition with the 2nd party (not with the
winning party who had the majority in Parliament) then the usual
convention of appointing as PM the leader of the winning party,
since the president would be constitutionally obliged to call on
the leader of the 2nd party to form a government with the support
of the other minority he would be in a position to carry on an
effective government since he would now have a greater majority of
the house.
However, the notion of the office of the PM in a Parliamentary
government is that he is chosen from the members of Parliament
because he is able to enjoy the confidence of the House of
Representatives. That is he is drawn from Parliament and together
with the ministers, who are appointed by the president on the
advice of the PM from the elected members of the house (in Italy,
ministers can be chosen from outside the house), form the Cabinet,
which is collectively responsible to Parliament for the governing
and administration of the affairs of the country.
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Therefore, the cabinet in Parliament is crucial for the survival
of the government i.e. it must retain the confidence of the house
for its existence. In fact a Parliamentary government is referred
to as a removable government and this is tied up with the
permanence of he office of the PM.
The PM expresses in his office the concept of collective
ministerial responsibility. Therefore, the whole of the cabinet is
answerable for the running of government through the person and
office of the PM. This implies that when the PM goes, the other
ministers have to go to [this is contrasted to individual
ministerial responsibility when an individual Minster loses the
confidence of Parliament and is not supported by the PM, then he
alone will have to resign his office].
If the PM loses the confidence of the house through a vote of no
confidence, which our constitution provides as an absolute majority
(50% + 1 of all the members of the house), the PM has a choice to
either resign or advise a dissolution of Parliament. If the PM
resigns then the office is vacant and the president considers there
is no prospect, within a reasonable time, of appointing an
alternative to that office who can command the support of a
majority of the house, then the president will dissolve
Parliament.
If the PM who has been defeated in Parliament advises a
dissolution thereof, this is usually accepted by the president and
therefore, dealt with as a matter of convention. The president can
refuse to sanction a PMs request for such a dissolution, yet if he
does so, he must be sure that an alternative can be appointed, who
can command the majority of the House in order to hold the office
of PM. In such a case, the president must consider that the
government can be carried on without a dissolution because of a
suitable alternative.
In Canada, this situation actually occurred when the Governor
General (representative Head of state) refused the defeated PMs
advice to dissolve Parliament and appointed another as PM whom he
though would best be able to command the majority of Parliament.
After some time this majority was lost and the Governor general was
then in a position to grant a dissolution to his newly appointed
PM.
In Malta in 1998, the PM at that time lost the majority of the
House. He could have chosen to resign but he chose to call an
election and advised a dissolution of Parliament. If the president
did nit feel it was in the countrys best interests, he could have
refused such a request. However, he chose to accept the PMs advice,
dissolved Parliament and a general election was held.
An example of a PM resigning can be seen in the UK in the 1990s
when Margaret Thatcher was declining popularity with the people and
also within her own party, with the great probability that she
would have a vote of no confidence in parliament. Therefore, to
avoid such defeat she resigned as leader of the Conservative Party,
having found a suitable alternative from within the party itself,
then went to the Queen to give her resignation and advise the Queen
to appoint John Major as the next PM.
Therefore, in this sense, the House of Representative/Commons
could be said to control the executive since the house can oust
[expel] a government which has lost the ability to command a
majority, through a vote of no confidence. In contrast, however, so
long as the cabinet can retain the confidence of the house, it can
exercise control over Parliament.
Firstly, the PM is not appointed for a 5 years term (the
lifetime of parliament) but will retain his office for as long as
he retains the majority of the House of Representatives. Therefore,
although the PN may be seen as the more vulnerable with regards to
tenure of office when compared to the president of the USA, yet the
advantage of the PMs office is that where a politically strong PM
exists, he is more likely to retain the majority of the house, as
well as to be re-elected at the time of the elections for the
members of the house.
In fact, side by side with this exists the strength that the PM
has in being able to call a general election. Although the lifetime
of Parliament Is 5 years, the PM can be seen as having a weapon in
his hands through the possibility of a premature termination of the
lifetime of Parliament. In this way, the PM can use this to his
advantage and bring about a situation were an election is called at
a time when the feels that he will more likely be re-elected as an
MP and hence re-appointed as PM rather than face an election when
he is obliged to do so due to the termination of the lifetime of
Parliament and risk the chance of there being a crisis among
popular opinion thus increasing the possibility of not being
re-appointed to office.
Although in the 1930s in the UK, PM Harold Wilson called an
election prior to the end of the 5 years with the belief that this
was a politically advantageous time for him and the members of his
government, yet the outcome was the opposite, as the Conservative
Party obtained the majority in parliament and it formed the
government. This strength of the PM can be compared favourably to
the situation of the president of the USA, where, owing to a
distinct separation of powers, the president cannot have such
control over determining his electoral outcome.
11
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Another strength of the fusion between the legislature and the
executive is the greater potential the parliamentary government has
of securing its proposed legislation through Parliament, since the
government has the majority support in Parliament.
12
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The JudiciaryAccording to our constitution, the judges of the
Superior and the magistrates of the Inferior courts are appointed
by the president on the advice of the PM. Therefore, the executive
appoints the judiciary. However, the judiciary is independent from
the other powers (although not completely so) to a far greater
extent than the relationship between the legislature and the
executive.
Judicial independence is crucial in a democratic state and
therefore, there are certain aspects related to this power, that
can secure its independence. Firstly, although the judiciary may be
appointed by the executive, they are then relatively independent
from the latter since the judiciary enjoy a security of tenure. It
is expressly laid down in the constitution that removal from their
position can only be achieved by the president, upon an address of
the House of Representatives and a 2/3 majority vote of the members
of the house and on the grounds of proven misbehaviour or inability
to perform the functions of the office. This may be due to
infirmity of the body or min. In addition, it is Parliament itself
that may, by law, regulate the procedure for the presentation of an
address by the house and for proof of infirmity or misbehaviour of
a member of the judiciary:
97. (1) Subject to the provisions of this article, a judge of
the Superior Courts shall vacate his office when he attains the age
of sixty-five years.
(2) A judge of the Superior Courts shall not be removed from his
office except by the President upon an address by the House of
Representatives supported by the votes of not less than two-thirds
of all the members thereof and praying for such removal on the
ground of proved inability to perform the functions of his office
(whether arising from infirmity of body or mind or any other cause)
or proved misbehaviour.
(3) Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of
the inability or misbehaviour of a judge of the Superior Courts
under the provisions of the last preceding sub-article.
One essential function of the judiciary is to protect one
citizen against unlawful acts of government agencies and officials,
and only an independent judiciary can impartially perform these
tasks. In addition, lowing to the notion of the supremacy of our
constitution, in our constitutional framework, here exists the
notion of judicial review; (in contrast, in the UK due to the
Sovereignty of Parliament, judicial review does not exist, yet it
is implied and assumed that Parliament would not enact anything/any
law that violates the constitution).
However, in our constitutional system, or courts can enquire
into the validity of a law and if it if to be found
unconstitutional, under our section 6, any law that is inconsistent
with the constitution shall to the extent of its inconsistency, be
null and void.
Also, no member of the judiciary can be a member of the other 2
powers, although under the British Constitution, the Lord
Chancellor is a member of all 3. In addition, the House of Lords is
the final court of appeal. Furthermore, Parliament under the
workings of our constitution does not function to punish those who
offend against them but a warning can be given. Or else, Parliament
can also decide whether to refer the matter to the ordinary courts.
In the UK, the Houses of Parliament still have the power to punish
and therefore, can fully enforce its own privileges.
Lastly, the salary of the judiciary comes out of the
consolidated fund, which means that the independence and
impartiality of the judiciary are upheld because they are not
subject to political threats or government policy. Conclusion
In the parliamentary system, although the legislative and the
executive may be closely inter-related and the ministers are
members of both, the 2 institutions of Parliament and the
government can be seen to be distinct from each other with regards
to their functions. Ultimately, the formal process of legislation
is different to the day to day conduct of government and the legal
order effect of an Act of Parliament differs from the effect of an
executive decision.
However, practical necessity demands a large measure of
delegation by Parliament, of the power to legislate, to the
executive, which is known as delegated legislation (although this
in itself can be considered to go against the notion of the
separation of powers). Within a system of government based on law,
it remains important to distinguish in the constitutional
structure, between the primary functions and the law-making,
law-executing and law-adjudicating. If these distinctions are
abandoned, the concept of law itself can become highly
obscured.
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Constitutional Court
In Malta there is no strict separation between the executive and
the legislature and this is not necessarily undemocratic. However
the separation between the judiciary and the other organs of the
state is indispensable for democracy. This is safeguarded by
having:
Independent and impartial courts Independent and impartial
judges
Jurisdictional Powers of the Constitutional Court are provided
for in Article 95(2) - One of the Superior Courts, composed of such
three judges, shall be known as the Constitutional Court and shall
have jurisdiction to hear and determine:
- Constitutional Court as a court of first and last instance
owing to the urgency of the matter
(a) such questions as are referred to in article 63 of the
Constitution as to whether:(a) any person has been validly elected
as a member of the House of Representatives;(b) any member of the
House has vacated his seat therein or is required to vacate his
seat under the provisions of article 55(2) of this Constitution,
because such members is:
under sentence of death or imprisonment, interdicted or
incapacitated or adjudged to be of unsound mind, declared bankrupt,
convicted of an offence connected with elections
(c) any person has been validly elected as Speaker
(b) any reference made to it in accordance with article 56 of
this Constitution and any matter referred to it in accordance with
any law relating to the election of members of the House of
Representatives;
If the elections are characterised by illegal or corrupt
practices and foreign interference, the Electoral Commission may
suspend the election, either in all electoral divisions or in any
one or more of such divisions, and shall forthwith refer the matter
to the Constitutional Court for its decision.
In cases of such practices, apart for the Electoral Commission,
any person entitled to vote at that election may, not later than 3
days after the publication of the official result of the election,
refer the matter to the Constitutional Court for its decision.
DeMarco vs. Ballon year wherein the Constitutional Court held
that the 3 days start running as from when the result in published
in the government gazette.
Resultantly the Constitutional Court shall have power to annul
the election, in all or in any one or more of the electoral
divisions, on any of such grounds, and to give such directions and
orders and to provide such redress and other remedies as it may
deem appropriate in the circumstances and in particular to ensure
that a free election, in place of any one that may have been
annulled, be held at the earliest possible opportunity.
- Constitutional Court as a court of Appeal -
(c) appeals from decisions of the Civil Court, First Hall, under
article 46, human rights cases;
(d) appeals from decisions of any court of original jurisdiction
in Malta as to the interpretation of this Constitution other than
those which may fall under article 46 of this Constitution;
(e) appeals from decisions of any court of original jurisdiction
in Malta on questions as to the validity of laws other than those
which may fall under article 46 of this Constitution;
Mintoff vs. Borg Olivier Constitutional Court - 1969 Mintoff
alleged that a bill should have been validated since he alleged
there wasnt an absolute majority. A question arose as to whether
the constitutional court had any authority to enquire the
parliamentary procedure to determine if the enactment of the bill
was valid. It was affirmed that the Constitutional Court had such
authority and in fact it investigated matters and pronounced
judgement that the bill was valid.
Reference must also be made to Article 116 a right of action for
a declaration that any law is invalid on any grounds other than
inconsistency with the provisions of articles 33 to 45 of this
Constitution shall appertain to all persons without distinction and
a person bringing such an action shall not be required to show any
personal interest in support of his action.
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(f) appeals concerning hybrid cases, thus pronouncing itself on
questions referred to in the foregoing paragraphs of this
sub-article as also on elements which usually are dealt with other
courts than the Constitutional Court.
In addition the Constitutional Court has jurisdiction in 2 other
instances: Firstly, the Constitutional Court also has jurisdiction
to hear and determine appeals under the
European Convention on Human Rights. Secondly, in accordance
with Article 6 of the European Convention Act, the Constitutional
Court
has the obligation to enforce judgments of the European Court of
Human Rights under the oversight of the Committee of Ministers.
Article 95(5) If at any time during an election of members of
the House of Representative, and during the period of thirty (30)
days following any such election,
the Constitutional Court is not constituted, the said Court
shall, thereupon and until otherwise constituted according to law,
be composed of the three more senior of the judges then in office ,
including the Chief Justice
and if at any other time the said Court is not constituted for a
period exceeding fifteen days, such Court shall, upon the
expiration of the said period of fifteen days and until otherwise
constituted according to law, be constituted by virtue of this
subarticle.
Article 95(6) The judges of the Superior Courts shall be a Chief
Justice and such number of other judges as may be prescribed by any
law for the time being in force in Malta:
Provided that the office of a judge of the Superior Courts shall
not, without his consent, be abolished during his continuance in
office.
Independence and Impartiality of the judiciary Security of
Tenure
Superior Courts
96. (1) The judges of the Superior Courts shall be appointed by
the President acting in accordance with the advice of the Prime
Minister.
(2) A person shall not be qualified to be appointed a judge of
the Superior Courts unless for a period of, or periods amounting in
the aggregate to, not less than twelve years he has either
practised as an advocate in Malta or served as a magistrate in
Malta, or has partly so practised and partly so served.
97. (1) Subject to the provisions of this article, a judge of
the Superior Courts shall vacate his office when he attains the age
of sixty-five years.
(2) A judge of the Superior Courts shall not be removed from his
office except by the President upon an address by the House of
Representatives supported by the votes of not less than two-thirds
of all the members thereof and praying for such removal on the
ground of proved inability to perform the functions of his office
(whether arising from infirmity of body or mind or any other cause)
or proved misbehaviour.
(3) Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of
the inability or misbehaviour of a judge of the Superior Courts
under the provisions of the last preceding sub-article.
Inferior Courts
100. (1) Magistrates of the inferior courts shall be appointed
by the President acting in accordance with the advice of the Prime
Minister.
(2) A person shall not be qualified to be appointed to or to act
in the office of magistrate of the inferior courts unless he has
practised as an advocate in Malta for a period of not less than
seven years.
(3) Subject to the provisions of sub-article (4) of this
article, a magistrate of the inferior courts shall vacate his
office when he attains the age of sixty years.
(4) The provisions of sub-articles (2) and (3) of article 97 of
this Constitution shall apply to magistrates of the inferior
courts.
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Security of Tenure
1. Procedure to remove a judge or magistrate: (i) Article 97(2)
/ 100(4) - An MP (any, if from the opposition) presents to the
speaker a petition for the
removal of a judge/ magistrates laying out the reasons for such
action - proved inability to perform the functions of his office or
proved misbehaviour, AND
(ii) 1994 amendments Article 101A the petition is voted upon by
the Commission for the Administration of Justice, composed of: the
president of the republic who shall be chairman and who has only a
casting vote, together with
nine other members: Chief Justice Attorney General, ex officio 2
judges 2 magistrates, two respectable members, one appointed by the
Prime Minister and the other by the Leader
of the Opposition President of Chamber of Advocates, ex
officio.
(iii) The Commission thus acts like a sifting organ for the
motion of a removal of a judge. If the Commission rejects the
petition, the matter will not develop further; if they accept the
petition, it proceeds to parliament where a vote is cast - 2/3 of
all members of Parliament (65 / 2/3 = 44) is required.
Some argue that such system is may be unfair as should the
commission, which has a majority of members of the judiciary,
reject the petition, parliament will not have the opportunity to
remove such judge. Though the rules regulating the commission are
found in an ordinary legislation, precisely in the Commission for
the Administration of Justice Act, the majority of the judiciary in
the commission is entrenched in the constitution.
In Malta 2 judges were impeached so far. Both petition failed
however since in one instance there was no rpima facie evidence and
in the other instance because parliament turned down the
petition.
Thus it will be noted that the removal process per se does not
preserve independence and impartial of the judiciary but since it
makes removal of a judge quite difficult, the judiciary is free to
act independently and impartially. And it is this independence and
impartiality which make the judiciary a pillar of the democratic
society.
Totalitarian states had courts and in most cases they acted
impartially but in cases being politically sensitive or in cases
against the state, the court was not impartial.
2. The second guarantee which a judge has is that in accordance
with Article 107, the salary payable shall not be altered to his
disadvantage after his appointment.
3. The third constitutional guarantee is that moreover Article
107 also provides that the salaries and allowances payable to the
magistrates and judges shall be charged on the Consolidated Fund.
Thus whilst the salary of a minister must be budgeted, the salary
payable to a judge is exempt from such debate irrespective of the
policy of the government of the day. Thus no debate takes place on
a judges behaviour in office.
4. The fourth guarantee concerns the decisions vis--vis the
assignment of duties of the judges and magistrates laid down in
Article 101A(13). Prior to 1994, it was the Minister of Justice who
had this power. Following the 1994 amendments the article came to
read:
(13) The powers of the President under any law with regard to
the subrogation of judges and magistrates and to the assignment of
duties of judges and magistrates shall be exercised on the advice
of the Minister responsible for justice who shall act in accordance
with any recommendation on the matter by the Chief Justice:
Provided that where the Chief Justice fails to make a
recommendation to the Minister, and in any case where the Minister
deems it so appropriate, the Minister may advise the President on
the matter, in any manner which, in the circumstances, he considers
appropriate:
Provided further that in any such case he shall immediately
publish in the Gazette, a notice of that fact together with the
reasons therefore, and he shall make a statement of such fact in
the House of Representatives not later than the second sitting
immediately after he has so advised the President.
Thus, in actual facts, it is the Chief Justice who decides on
the assignemntd of judges and magistrates.
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Amendments to the Constitution in 1974
In 1974 we historically have a disturbing fact our
constitutional court was not composed. For 3 years we did not have
a functional constitutional court composed in terms of law. In
1972-73 the Privy Council was removed. We had a constitutional
court but not composed because then Judge Florence resigned and
since at the time the constitutional court was composed of 4 judges
(today composed of 3 judges), this court could not operate. The
prime minister of the day administered his powers of appointment as
including powers of non-appointment.
The Constitutional Court safeguards the constitution by
rendering inconsistent laws unconstitutional in terms of Article
6.
Without a functional constitutional court, parliament in effect,
not in theory, became supreme. N.B. This was NOT illegal. The
separation has a basis of balance not legality.
The document of the day expressly stated that government didnt
want to appoint another judge since the labour government wasnt at
peace with our constitution.
The matter became more complicated because the government went
to phase II of his plan. The government of the day wanted to
introduce a whole range of amendments. It proposed a radical
redefinition of the very supremacy of the constitution.
In 1974 article 6 in the constitution only required an absolute
majority. The government had an advise from the attorney general
that the government could remove article 6 only with an absolute
majority but the consequence would be that parliament would then
amend any other section of the constitution by an absolute majority
even if that other section had required a two-thirds majority.
Parliament introduced a bill presented on the 12 December 1974 such
that when parliament so declared, any section of the constitution
could be amended by an absolute majority LVII (57)
Through this act parliament did not completely remove the
supremacy of the constitution. First it repealed the old article 6,
reintroducing it exactly as it was with the proviso that whenever
parliament so declared, a law (act of parliament) would remain
valid not withstanding any inconsistency with the constitution. The
supremacy of the constitution was now at the sufferance of
parliament. Parliament wanted to retain supremacy for the time
necessary for parliament to pass act no. LVIII (58)
Act 58, for a second time, repealed article 6 again and brought
it back to what it was in 1964. Parliament approved act 58 not
unanimously but with a consensus.
The second subsection introduced the potential supremacy of
parliament. The old Art 6 was repealed and re-enacted. Accompanying
it, there was the potential of parliamentary supremacy. The
condition was that there had to be an expressed declaration of
parliament stating that a future act of parliament would be more
supreme than the constitution.
The labour government was determined to push through the reforms
irrespective of the agreement with the opposition. It had to make
sure that the absolute majority it had in parliament would be
enough to introduce the entire range of reforms which already had
been agreed to with the PN in opposition.
Act 58 deals with a wide range of amendments, most of which
required at least two-thirds majority.
Through Act 57 the government of the day was proposing to
parliament a legal technical solution which would allow an absolute
majority to be enough to amend all those articles in Act 58 which
in terms of the 1964 Constitution would have required a two-thirds
majority or a two-thirds majority and a referendum.
Arguable, two of the most competent people were totally at
logger heads at the significance of all this:J.J. Cremona (A.G. in
1964 when the original constitution was drafted) vs. Dr. Edgar
Mizzi (A.G. in 1974 amendments)
The clash of the AGs Dr. Mizzi having amended Article 6, one
could alter Article 67 (Section 67 is the amending section) or any
other article. A constitution which declared itself supreme allowed
room for parliament to became supreme. He says that there was a
loophole resulting allowing to change Article 6. lapsus talami
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JJ Cremona said that it was technically true that one couldnt
deny that Article 6 could be altered by absolute majority, however
he said that Malta follows the idea of constitutionalism or limited
government. The 1964 Constitution has to be seen holistically
because the constitution has a complexity of safeguards such as
impartial judiciary. The American constitution did not have written
that it is supreme, but notwithstanding the US Supreme Court in
Marbury vs. Madison made it clear that because of the idea of
constitutionalism the Constitutional supremacy need not be
explicitly stated. He said that the value of Article 6 was only
declaratorily.
Profs. Wheare?? - The superiority of a constitution over the
institutions which it creates derives from its very nature, it not
only regulates those institutions but it also governs the
government. (constitutionalism).
Chief Justice Marshall 1803 in Marbury vs. Madison held that to
think otherwise reduces the constitution and the business of
constitution-making to nonsense.
On the eve of the 13 December 1974 we had parliament supremacy.
We had a higher authority than parliament but this (cont court was
not composed). Parliament asserted the right to legislate beyond
the constitution. For 48 hrs there were all the prerequisites of
parliament supremacy.
The leader of the PN (George Borg Olivier) + 6 other PN MPs
voted against Act 58. However since the overall majority of MPs
still voted in favour of Act 58, it was passed by two-thirds
majority.
Act 58 removed all the loopholes from the constitution and this
was brought about by a consensus between the parties.
Through Act 58: Article 6 was amended a second time, and this
time they introduced the article in its original wording,
and placed this article amongst those articles requiring a
two-thirds majority. All the loopholes were then removed. (this is
why PN were in favour)
IMPORTANT AMENDMENT - The two parties agreed to introduce the
provision that Malta may no longer remain without a Constitutional
Court because through Act 58 it was introduced that our
constitutional court appoints itself. It was provided that first
the government shall appoint the judge to sit at the Constitutional
Court, but if within 15 days the executive fails to do so, then the
constitution orders that the next most senior judge automatically
declares himself as a sitting member of our constitutional
court.
Whereby the factors that caused our constitutional crisis led to
an amelioration of our constitution. 1984 Mons. Mercieca vs. Prime
Minister - Theory of Necessity - example of JUDGE-MADE LAW (!)
In 1984 we found ourselves again without a Constitutional Court
because of the churchschool case. The church, through Archbishop
Mgr. Joseph Mercieca filed a constitutional case claiming that the
government procedures were unconstitutional.
Judges who were, or had relatives, educated in church schools
were asked to abstain. It so happened that one after the other, the
judges abstained until only 3 judges were left.
During this episode, Judge Wallace Gulia introduced the theory
of necessity.The judges delivered judgement and proclaimed the
theory of necessity, whereby stating that it is true that justice
must be done and also be seen to be done (this is why judges must
be impartial so that justice will be seen to be done), however it
was held that in similar circumstances if the need arises to choose
between doing justice and seeing justice, than the former must be
chosen. During pronunciation of the judgement, reference was made
to a case in Scandinavia where the pay of judges was being disputed
and notwithstanding the apparent conflict, the same judges had to
pronounce judgement.
Since 1974 nobody contested our constitution. The fact that both
political parties agreed to the constitution, serves to:
1. strengthen the supremacy of the constitution2. make apparent
the consensus between the parties
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Electoral System
Italy
The Parliament of Italy is a bicameral legislature of the
Chamber of Deputies as the lower house, and the Senate as the upper
house. Since 1993, an Additional Member System has been used in
both houses. Three-quarters of the seats are filled by single
member plurality, and remaining quarter by proportional
representation. This has allowed the bigger parties to gain much
national power with comparatively smalls shares of the national
vote.The electoral system was changed in the run-up to the 2006
General Election to a proportional representation with a series of
thresholds to encourage parties to form coalitions.Both for the
lower and higher house of the Parliament, Italy is divided in a
certain number of constituencies, in which seats will be
distributed according to the share of votes received by a party.
Available seats are assigned to these constituencies proportionally
to their population. In all cases, the lists of party candidates is
given beforehand, and citizens cannot state a preference for any
given candidate: if a list wins 10 seats, its first ten candidates
will be elected.
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Bills
Preliminary The Minister engages the services of the AG to draft
the bill. Then present it to cabinet to get political approval at a
government level. British Prime Minister Anthony
Eden entered the Suez crisis of 1956 without consulting
government and when matters started to go awry, the government did
not support the Eden. Consequently Eden resigned a few months
later.
The cabinet-approved version goes to parliament. The minister
responsible for the subject regulated by the bill, will pilot the
bill through parliament.
First Reading The minister will present a motion with a 3 days
notice informing parliament that he wants the approval of
the first reading of a bill. A bill can either amend an old one
or propose a new one. When it is still in the draft from it is
called a bill
(not act). (abboz in Maltese; designio di legge in Italian).
During the first reading only the Title of the bill is read. A vote
is taken and usually the opposition will not vote against since
they have no information on the bill. Once the first reading is
passed, the bill is published in the government gazette both in
Maltese and in
English. The bill can also not be published and its ether
(journey of a bill) will whereby stop at this stage.
Second Reading Once the bill is published, the second reading
takes in place in parliament. The piloting minister will take the
stand to propose the second reading and will introduce the bill.
The second reading will be a general review of the policy. At this
stage no amendments can be proposed. All MPs can intervene once and
for a maximum of 40 minutes except for the piloting minister and
the
shadow minister who may intervene for a maximum period of 80
minutes. In addition the piloting minister has also the final
interventions of up to 30 minutes so to wind up and conclude.
A second vote is taken. The speaker will assume that the
government has a majority and whereby that those in favour will
outnumber those against. If the opposition want to challenge the
speakers decision that the government has a majority, they requests
a division so that the name of the MPs in favour and against the
bill are recorded.
The division bell is sounded and the MPs have 20 minutes to
attend parliament to vote. Upon expiration of the time, the doors
of parliament are closed and the clerk reads out the name of the
present delegates and registers their names. Unless an MP
signalises that he is against his parties decision his vote is
assumed to conform to the generic stand taken by his party. MPs may
abstain by not entering the building. In Malta there is not secret
vote.
Committee Stage (within the Second Reading) After the second
reading, the bill is to be examined in the standing committee
purposefully established to
examine bills. Therefore the bill is not examined in detail by
the whole house but only by the standing committee
(kumitat permanenti). The standing committee is composed of:
Chairman, retaining his original vote (in favour of the
government) 3 MPs from the government 3 MPs from the opposition
The bill is examined in detail and the composition of the
committee changes according to the subject matter. Only MPs can sit
on this committee but experts, such as from the AGs office to draft
amendments, can be bought in.
Here the bill can be fine tuned, having new clauses introduced
or amended. The bill will be examined clause by clause (a bill does
not have articles but clauses). There is a small
debate on each clause depending on the nature of such clause.
Following this examination, the bill is approved in its final
version by the standing committee. There are 2
exceptions where the bill is not examined before a special
committee, but rather before parliament, these being:
Financial bills a bill which increases or causes expenditure to
government Amendments to the constitution
The advantages of the special committee are the informal
atmosphere and the pooling of expertise. Moreover, in the standing
committee, the government may also discuss other bills.
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Following the committee stage, the chairman of the committee
then reports to the speaker that the bill has been approved with or
without amendments.
Third Reading At the third reading parliament approves or
disapproves the final version of the bill. This reading is
important because in the case of a constitutional amendment the
required majority of 2./3 is
only needed in the third reading. The bill is then sent to the
president for his assent section 72 (2) The bill is then published
in the government gazette. The bill becomes law once it receives
the presidential assent, but it can only be enforced once it is
published in the government gazette. If the law itself provides
for such postponement, it can be postponed, otherwise it becomes
enforceable from the moment of its publication.
In one sitting, one stage can take place unless the otherwise
consents so as not to rush bills through parliament.
If the president refuses to sign the bill and does not want to
resign, it is up to the government if it wants to take the risk of
removing the president. {He may not decide not to assent a bill; by
he can decide not to assent a bill}The removal of the president is
rather a political practice more than legal and wherefore it is a
convention. This has been transposed into our law from the British
convention and in our constitution it has retained its nature. The
inclusion of Article 72(2) requires the president to sign the
bills, and therefore if he fails to do so he can be removed for
misbehaviour.
One can only challenge law as unconstitutional once it has been
passed. If one is to challenge a law in relation to Chapter 4, one
must prove having a personal economic juridical interest in the
case.On the other hand anyone can challenge a law other than the
human rights (actio popolaris), as stipulated in Article 116.
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Though we dont have a strict separation of powers, in
compensation we have specialised powers which carry out functions
distinct from the government.
Democracy is the safeguarding of the rights of each and every
one in a social context. Thus these specialised powers are kept
separate and distinct from the government to achieve that
impartiality from the government.
Electoral Commission
Article 60(1) There shall be an Electoral Commission for
Malta.
(2) The Electoral Commission shall consist of a Chairman, who
shall be the person for the time being holding the office of Chief
Electoral Commissioner and who shall be appointed to that office
from the public service, and such number of members not being less
than four.
(3) The members of the Electoral Commission shall be appointed
by the President, acting in accordance with the advice of the Prime
Minister, given after he has consulted the Leader of the
Opposition. They may so appoint, even members to hold office
temporarily.
(4) A person shall not be qualified to hold office as a member
of the Electoral Commission if he is:1. a Minister, 2. a
Parliamentary Secretary, 3. a member of, or a candidate for
election to, the House of Representatives, or4. a public
officer.
(5) A member of the Electoral Commission shall vacate his office
-(a) at the expiration of three years from the date of his
appointment or at such earlier time as may be
specified in the instrument by which he was appointed; or(b) if
any circumstances arise that, if he were not a member of the
Commission, would cause him to be
disqualified for appointment as such.
(6) A member of the Electoral Commission may be removed from
office by the President acting in accordance with the advice of the
Prime Minister.
(7) A member of the Electoral Commission shall not be removed
from office except for inability to discharge the functions of his
office (whether arising from infirmity of mind or body or any other
cause) or for misbehaviour.
(8) In the exercise of its functions under this Constitution the
Electoral Commission shall not be subject to the direction or
control of any other person or authority.
Functions
Article 61(1) The Electoral Commission shall review the
boundaries of the electoral divisions, being an odd number and not
less than 9 and not more than 15, at intervals of not less than 2
nor more than 5 years and may alter such boundaries to such extent
as it considers desirable:
Provided that the Commission shall carry out such a review and
alter the said boundaries whenever Parliament has made provision
altering the number of electoral divisions; and in addition the
Commission may at any time carry out such a review and alter the
said boundaries to such extent as it considers desirable in
consequence of the holding of a census of the population in
pursuance of any law.
(2) Any provision by Parliament altering the number of electoral
divisions shall come into effect when the alteration of the
boundaries of the electoral divisions that, in accordance with the
provisions of sub-article (1) of this article, is consequential
thereon comes into effect.
(3) Whenever an alteration of boundaries is made by the
Commission under this article the following provisions shall have
effect:
(a) the Chief Electoral Commissioner shall, as soon as
practicable after it is made, communicate the alteration to the
Prime Minister and to the Leader of the Opposition;
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(b) not later than two months from the receipt of such
communication, the Prime Minister shall cause the alteration to be
placed before the House of Representatives for consideration by
it;
(c) not later than five months from the receipt of the said
communication by the Prime Minister, the House may, by resolution,
either approve the alteration or refer it back to the Commission
for reconsideration;
(d) upon the expiration of six months from the date on which the
alteration was communicated to the Prime Minister, or, if the
alteration is approved by the House, upon such approval, or, if the
alteration is referred back to the Commission, upon the expiration
of two months from such reference, the Chief Electoral Commissioner
shall cause the alteration to be published in the Gazette either in
its original form or, if it has been modified by the Commission, as
so modified; and
(e) any such alteration shall come into effect upon the next
dissolution of Parliament after the alteration is(f) published in
the Gazette.
Provided that nothing in this paragraph shall be construed as
preventing the publication of any electoral register or any other
requirements connected with the registration of voters from being
carried out in accordance with the alteration, under any law for
the time being in force in Malta, before that dissolution.
(4) An alteration of the boundaries of any electoral division
under this article shall be made in such manner as secures that, at
the time when the Commission carries out its review, the number
obtained by dividing the total electorate in the division by the
number of members to be returned to the House of Representatives
from that division is as nearly equal to the electoral quota as is
reasonably practicable:
Provided that any such alteration may be made in such manner
that the number of voters in that division is, at the time when the
Commission carries out its review, greater or less than the
electoral quota multiplied by the number of members to be so
returned, but in no case by more than five per centum, in order to
take account of geographical vicinity, differences in density of
population and other relevant factors.
(5) For the purposes of any review carried out under this
article, "electoral quota" means the number obtained by dividing
the total electorate of Malta (as ascertained from the electoral
register in force at the time when the Commission carries out that
review) by the total number of members to be returned to the House
of Representatives at the general election following the next
dissolution of Parliament.
(6) The conduct of elections in every electoral division and of
any vote taken under the provisions of article 66(3) of this
Constitution shall be subject to the direction and supervision of
the Electoral Commission.
Who guards the guardians of the constitution?
Commission for the Administration of Justice & Committee for
Advocates and Legal Procurators
Article 101A (1) The Commission for the Administration of
Justice shall be composed of:
the president of the republic who shall be chairman and who has
only a casting vote, together with nine other members:
Chief Justice Attorney General, ex officio 2 judges 2
magistrates, two respectable members, one appointed by the Prime
Minister and the other by the Leader of the
Opposition President of Chamber of Advocates, ex officio.
(2) (a) The Commission for the Administration of Justice shall
at all times have a committee for Advocates and Legal Procurators
which shall have such composition, functions, powers and duties as
may be assigned to it by law. The Commission shall in the exercise
of any of its functions in relation to the professions of