CROWNS and CLONES in CRISIS Christ's College, Cambridge, 19

DRAFT CROWNS AND CLONES IN CRISIS The case of Malta (and Gibraltar) Christ's College, Cambridge, 19th July 2017 Henry Frendo, University of Malta Much water has passed under the bridge since Malta became an independent and sovereign state on 21st September 1964, but its essentially Westminster-style Constitution has survived with often minor amendments and changes to respond to certain circumstances as these arose. Such amendments have been largely the result of electoral quirks which needed a remedy, but some have also been political and seminal. When Malta's independence was being negotiated in the early 1960s the government of the day, the Nationalist Party led by Dr Borg Olivier, which had 26 out of the 50 parliamentary seats, sought as smooth a transition as possible from colonialism to independence. By contrast, the largest party in Opposition, led by Dominic Mintoff, wanted radical changes. Three smaller parties were opposed to Independence fearing that Malta would not survive and thrive. One bone of contention was whether Malta should remain a member of the Commonwealth or not. Another was whether Malta should be a constitutional monarchy or not. In both these cases the Borg Olivier view prevailed. Moreover the draft Constitution was approved in a referendum held in May 1964. The vision was that there would be a transition from dependence on employment with the British services, given that Malta had long been regarded and served as a strategic fortress colony in the Central Mediterranean, to a more home-grown 1 and self-sufficient outfit based on industry, tourism and agriculture. For the smooth transition envisaged by the Borg Olivier administration to succeed, there was little point in rocking the boat unduly. Security, stability and a degree of continuity were more important to attract investment underpinning an economic diversification. A symbolic gesture in this regard was the retention of the British Governor, Sir Maurice Dorman, as a Governor-General, and of Queen Elizabeth" as the Queen of Malta. Queen Elizabeth" visited Malta as her Queen for the first and last time in 1967, but she had lived in Malta and knew the island we". For better or for worse the British connection had lasted 164 years, including two world wars fought in common. English, in addition to Maltese, was constitutionally retained as an official language of the new state. Clearly, such nationalism fs had bedeviled the progress of other new states was kept in check to further economic and social progress in the facing of new challenges. Naturally in any major policy decisions the Governor-General now would act on the advice of the Prime Minister. The first major challenge to arise was a hastened run-down and a suddenly projected decrease in British defence spending, in accordance with the 1967 defence white paper. This threatened employment, interfered with the economic diversification being undertaken, and went against the Anglo-Maltese defence and finance agreements negotiated at the time of Independence. It raised a furore right across the entire socio-political spectrum, including the church organisations. To roars of approval even from the Opposition benches, Borg Olivier told Parliament that Malta was small and needed assistance but it was a proud independent nation whose people would not be bullied into submission by the former colonial power, which was not respecting its own commitments. A compromise was finally wangled but the remaining British in the base had been just about told to leave. What is of special interest to us here is that the Governor-General, an Englishman representing the Queen, openly took the side of the Maltese government and people. II stand four square with the Maltese', he publicly announced, as many a 2 protest march poster would remind all and sundry. He was not being a clone of the Crown; and when he was dismissed years later, it was not by the Crown but by a Mintoff-Ied administration which came to power with a one seat majority in 1971. In his stead, in a clever nationalistic sop, a Maltese Governor-General was appointed; and no more British heads of state. This was a sober, even exemplary choice as his replacement, Sir Anthony Mamo, was the Chief Justice and a respected jurist. The immediate transition from colonialism to statehood and from a dependent economy to a self-sustaining one was judged to have been over, so this move was generally welcomed by the public. Rather than the doom and gloom forecast by the opponents of Independence, the 1960s saw an economic boom, and return migration, with international brand names such as the Hilton and Sheraton setting up shop in Malta for the first time ever. Malta was also active on the international scene, such as in its proposal at the UN for an authority to protect the seabed and a law of the Sea. ~ yr¥ In 1974 the Maltese head of state faced what was possibly the worst crisis in the "'" 'r~N1istory of this office. Mintott:~as. as hell bent ~ on turning Malta into a /O~ r~~~ ,t.. ') l?./< ..e~p;ublic and removing the constitutional monarchy constitution. However he did ,~/~ not want to get referendum approval for this change. Dr Borg Olivier, now Leader ( of the Opposition, opposed it tooth and nail, the actual Constitution having been approved in a referendum only six years earlier. The Government had recourse to section 6 of the Constitution which held the Constitution to be the supreme law1 but this was not entrenched. The drafter of the Constitution, Professor J.J. Cremona, held this to be a self-evident norm which did not require entrenchment, but it was the stratagem used to enforce a parliamentary majority. Borg Olivier and some other MPs voted against. He swore loyalty to it on condition that it was valid. Section 6 was then entrenched. Sir Anthony Mamo, a shrewd jurist who had not been involved in party politics, became the first President. He was the first and last Head of State not to have carried a party political baggage. 3 Malta remained a member of the Commonwealth and in recent years, under different post-Mintoff administrations, has hosted two meetings for Commonwealth heads of state. The president constitutionally had to be appointed for a five year term on the advice of the House of Representatives, which was dominated by the party in office and certainly by the prime minster above all. This is partly what has led various legal minds to hold that the President of Malta was a figure head, toothless and impotent. The President could exercise a moral authority at best, depending on stature and personality. The point hardly needed stressing. Mamo's successor, Dr Anton Buttigieg, President from 1976 to 1981, had before that served as Deputy Leader of Mintoff's party, the Malta Labour Party, for many years. He was also a poet of some note but not one known to stand up to Mintoff. Constitutionally the President is head of the executive - appointing the PM; and is a member of the legislature; and chairs the Commission for the Administration of Justice which has a say in appointments to the judiciary. But there are no real effective powers for implementing the oath of office: to (preserve, protect and defend the Constitution'. Bills~ to be assented to 'without delay'. There has been some slight change in the speech at the opening of a new legislature which used to be completely and independently prepared by the government for the President to read out to the House. Any partisan slogans, to which President Abela objected, would compromise the Office of President. The President has some slight leeway in dissolutions of Parliament and cannot be prosecuted, although in extremis, there is the possibility of removal; but there has been nothing remotely comparable to the dismissal of a prime minister by a governor general as happened in the case of Gough Whitlam by Sir John Kerr in Australia in 1975. The exercise of moral authority and the dismissal of an elected government \ftTrwhR-1~e.t=-1"Pft.GAf~e rathe r d iffe re nt. The next big challenge to the Constitution, of which the President was supposed to be the guardian, and thus bound by the oath of office, came in 1981. In the 1981 election the Nationalist Party won an absolute majority of the popular vote but a minority of seats. Claiming a gerrymander it refused to take its seats and 4 / i J-/ / /'" '" / attend parliamen~ry sittings. The President now was Agatha Barbara, a longtime Mintoff devoteeiNhom one admirer in a biography described as 'the woman of steel'. She tried to put in a word to end the stalemate but there was not much that she could actually do at law. Mintoff himself had publicly lamented the election's 'perverse result', especially as he had promised in a national TV broadcast on the eve of the election, that he would not govern unless the majority of people were behind him. Following an understanding that the ~ Constitution ~ould be amended the Opposition took their seats. Mintoff resigned as party leader and as prime minister in 1984, effectively appointing a protege as successor. But as another election approached it was he himself who browbeat the House into changing the Constitution to see to it that the party which got the majority of votes would govern, if necessary by being given additional seats. The condition was that the Constitution would also state that Malta would henceforth be a neutral and non-aligned state. It was thus that the Nationalist Party took office in 1987~ fZ~ .~. '-? 't''fl.

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