DRAFT

CROWNS AND CLONES IN CRISIS

The case of (and Gibraltar)

Christ's College, Cambridge, 19th July 2017

Henry Frendo,

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 , 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 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 , President from 1976 to 1981, had before that served as Deputy Leader of Mintoff's party, the Malta , 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 , 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. ~ The then President was in an acting capacity until he was replaced by Censu Tabone, an opthalmologist who was the Foreign minister. Initially he was boycotted by the Labour Opposition but when that party leadership changed the new man at the helm, Or , a novelist and Harvard graduate, struck a good working relationship with the President, who encouraged regular informal meetings, to the point where he even proposed that Tabone be given another five year term. That would have been unconstitutional and it never came to pass. However it was a sign of the improved political climate; Sant, today an MEP, had also put paid to violent elements in his party which had cast a shadow over the Mintoff years.

As it turned out, a distinguished former Nationalist Minister of Education who was now President, , was the one who in 1996 witnessed Sant's oath of office as incoming Prime Minister. A Nationalist President, a Labour Prime Minister. I think the Italians call it 'cohabitation'. Mintoff probably had aspired to the presidency, possibly an executive one, but inter-party negotiations finally led nowhere.

5 \/Q.,- Presidents of Malta since 1989 had been mainly Nationalist Party grandees. They lent an aura of dignity to the office and the country, for example in state visits, even if their role may be seen as primarily ceremonial, ignoring behind-the-scenes activity and good offices. Censu Tabone, for instance, an internationally acclaimed healer of trachoma, welcomed George Bush and Mikhail Gorbachev to Malta in 1989 for what would be a historic end-of-the Cold War encounter. He was 76 when he became President which is partly why in my biography I described him as (a father to the nation'. His successor from 1990, , was a leading criminal lawyer, Europeanist and orator; he presented Malta's application to join the European Union in 1990 and ~orked hard for it to stay on course against all 'V:~y- odds until membership finally in 1~; he was a commanding well-connected presence as a globe-trotting President of the 45th session of the UN General Assembly. His successor, Mifsud Bonnici, cultured and erudite with a strong family pedigree going back to the inter-war years, was a respected voice of moderation who, like Mintoff but no firebrand, hailed from the dockyard town of , which he was elected to represent for decades. The considered opinions of such personalities, even if in private, could not be dismissed lightly by the political class, in spite of their want of legal clout at law quo heads of state. A somewhat sui generis cas~-e-elOVIfA very~was the appointment of Fenech Adami, until recently the prime minister, as president, in 2004.

In 2008 by contrast an unprecedented development occurred. For the first time, a onetime politician from the rival Labour party was named President .by the Gonzi administration. , an affable lawyer, trade union adviser and sportsman, sought to popularise the presidency, and to ask questions about its future by engaging in and encouraging a critical discourse in a forum-style process. It was he who objected to undue partisanship in the wording of the President's speech at the opening of parliament. More care has been taken since.

G19nzi's example was not followed however because the next Head of State, a graceful lady and high-polling politiCian, Marie-Louise Coleiro Preca, hailing from the same village as Abela, , was plucked out of Cabinet in her early fifties to fit the new role envisaged for her by the prime minister, . Gonzi had won the 2008 election by the skin of his teeth, hence possibly the palm ~ 6 . whereas Muscat won in a landslide in 2013 and again now in 2017. Her heart in the right place, Marie-Louise has assumed a humanitarian and mediating social role in public affairs, consolidating, the Community Chest Fund Foundation and creating additional instruments to~ well-being. When electoral bickering went over the top in 2017 she summoned both the main party leaders to remember that (we are all Maltese ... we remain one nation, one people, neighbours, friends and family.' ('President issues sharp election message denouncing lack of respect', TOM, 4 June 2017, p. 7) ~ The case of Gibraltar and its Governors is of course quite different and still more <)~ neutral. It is also fairly uncertain in the light of Brexit. In July, a few weeks aRo, tre t 'L V King of Spain brought up the subject in the presence of the Britis~~ we know, Gibraltar was wrenched from the Spanish mainland by Britain in 1704 after a succession of wars; its population underwent changes in its composition but the hurt has never quite healed. Circumstances have also changed. Its strategic geopolitical value is less today, but new affinities were created. Its government may be more autonomous than previously but essentially it remains British. Apart from English, the lingua franca is still an Andalusian dialect; and the provenance of its inhabitants has mixed and matched over the years, with some 30% being of Maltese descent. Spain is of course a strong member of the EU, which Britain now wants to leave. But Gibraltarians voted overwhelmingly to remain, more so than the Scots and the Irish. This is a double dilemma; so the future beckons.

What is now on the cards for Malta is a Constitutional Convention which will seek to iron out lacunae and anomalies, possibly leading to a so-called 'Second Republic'} in which the Head of State's role may be more pronounced and better defined, although it is unlikely that there will be an executive presidency as such.

HF

16-vii-2017

7