KEVIN AQUILINA

Had the President refused to sign the IVF Bill, she would have been at loggerheads with Parliament

Following the uproar in the wake of President Marie-Louise Coleiro Preca signing the new IVF Bill against her conscience, Rachel Attard asks Law Faculty Dean KEVIN AQUILINA for his opinion on the matter. “It would be a grave breach of the democratic process if, after Parliament, composed of elected MPs, discusses and approves a Bill, the unelected President were to refuse to put her signature on the Bill approved by the democratically elected representatives of the people,” he said

Do you agree with the decision that the President took?

Yes, I agree with the decision taken by the President because it is a constitutional decision, that is, one which is in line with the Constitution of Malta. When the President assumed office, she swore to preserve, protect and defend the Constitution. This is what she did. She could have of course chickened out and went on holiday leaving the matter to be dealt with by the Acting President, or she could have resigned and left it to government to appoint, by a majority vote in the House of Representatives, without the Opposition’s approval, a new President. But this is not what she did. She assumed the responsibility of office and signed the Bill immediately.

Did she act according to the Constitution?

My view is that she did act according to the Constitution because the Constitution requires the President to sign Bills sent to her. If a Bill is not signed, it cannot be published in The Malta

Government Gazette and cannot, consequently, become law. It would be a grave breach of the democratic process if, after the House of Representatives composed of elected MPs discusses and approves a Bill, the popular unelected President were to refuse to put her signature on the Bill approved by the democratically elected representatives of the people. That would have placed her at loggerheads with the House of Representatives.

The Constitution mandates that she has to sign the law without delay and this is in fact what actually happened. The Bill was approved on Tuesday evening, signed straight away by the President and published on Thursday.

What other options could the President take?

I think there are four options, though not all are viable. First, she could have resigned. Second, she could have absented herself from her presidential duties so that an Acting President assumes office and signs the Bill instead. Third, she could have signed the Bill and the matter would have stopped there. Fourth, she could have signed and in doing so expressed her opinion on the Bill to Members of Parliament. I think that the first two options are a non-starter as it simply passes on the responsibility to another person, whether it is a new President in her stead willing to sign the Bill

or an Acting President who replaces her for a day and signs the Bill. I think that this is a self-defeatist approach.

As to the third option, this is what happens in the normal course of proceedings. But this was not a normal situation bearing in mind the controversy surrounding this Bill, with a very prominent and reputable former Deputy Prime Minister, Deputy Leader of the Labour Party, Minister and Member of Parliament (Dr George Vella) campaigning against parts of the Bill, with a former Parliamentary Secretary expressing her views against provisions in the Bill (Dr Deborah Schembri), with prolife movements up in arms against the proposed amendments, with academics and professionals giving their thumbs down to the Bill, with the Church being critical of the Bill’s disrespect to human dignity, and with the Opposition having voted in the House on third reading against the Bill.

Were you consulted by her office?

As I am bound by the Code of Ethics of Advocates, in particular professional secrecy, I cannot divulge who my clients are, including whether I was in this case consulted by the Office of the President, and, were this to be the case, what advice, if any, did I provide.

Can a President express what her views are when signing a bill?

The President is a citizen of Malta like all of us. The fact that she is President of Malta does not automatically mean that on her appointment she forfeits all her constitutional human rights and fundamental freedoms. So yes, she can express her views when signing a bill, more so that it would be only at the final stage of the enactment of a law that she would have been involved in its adoption. As the President is not a Member of Parliament, she cannot discuss the Bill with other Members of Parliament in the House of Representatives. She would not know what changes, if any, are made to a Bill during the Committee stage in the House of Representatives. It is only when the Bill is discussed and conclusively voted upon and when the President receives the Bill for her signature that she becomes aware of the Bill’s actual content. At that stage, she can and has expressed her views on the Bill after having signed it and in conformity with the Standing Orders of the House of Representatives whereby she is entitled to communicate, through a Minister, with the House.

Should the role of a President change?

Yes, I think that more power should be devolved on the President so that she appoints the members of the Constitutional Commissions and the Broadcasting Authority, following due consultation, including a purposely appointed Council of State. This is because these commissions and Authority do not represent the national interest but the interests of the political party in government and the majority party in opposition. Unfortunately, these commissions and Authority have been hijacked by the PL-PN duopoly. That is bad for the separation of powers, the rule of law and democracy and for the proper working of the Constitution itself. Yet there does not appear to be the political resolve to change things as the status quo benefits both the Labour Party and the Nationalist Party. When was it last that we heard talk of a constitutional convention or a second republic?