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.

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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.

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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