Role of the Presidency

Substituted by: LVIII.1974.18.

Establishment of the office of President.
Substituted by: LVIII.1974.18.
Amended by: XLIV.2020.2.

1. There shall be a President of Malta who shall be appointed by Resolution supported by the votes of not less than two-thirds of all the members of the House: Provided that notwithstanding the provisions of sub-article (3)(a), if the Resolution is not supported by the votes of not less than two -thirds of all the members of the House, the person occupying the office of the President of Malta shall, in any circumstance, remain in office until the Resolution is supported by the votes of not less than two-thirds of all the members of the House.
2. A person shall not be qualified to be appointed to the office of President if – (a) he is not a citizen of Malta; or (b) he holds or has held the office of Chief Justice or other Judge of the Superior Courts; or (c) he is not eligible for appointment to or to act in any public office in accordance with articles 109, 118 and 120 of this Constitution.
3. The office of President shall become vacant – (a) on the expiration of five years from the date of the appointment to that office; or (b) if the holder of the office is removed upon an address by the House supported by the votes of not less than two-thirds of all the members thereof and praying for such removal on the grounds of proved inability to perform functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour: Provided that 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 the holder of the office under the provisions of this paragraph.

Discharge of President’s functions during vacancy, etc.
Substituted by: LVIII.1974.18.
Amended by: XLII.2016.20.

Whenever the office of President is temporarily vacant, and until a new President is appointed, and whenever the holder of the office is absent from Malta or on vacation or is for any reason unable to perform the functions conferred upon him by this Constitution, those functions shall be performed by such person as the Prime Minister, after consultation with the Leader of the Opposition, may appoint or, if there is no person in Malta so appointed and able to perform those functions, by the Speaker of the House of Representatives.

Oath to be taken by the President.
Substituted by: LVIII.1974.18.

A person appointed to or assuming the functions of the office of President shall, before entering upon that office, take and subscribe the oath of office set out it the Second Schedule to this Constitution. Any person appointed to the office of President under sub-article (1) of article 48 of this Constitution shall take the oath of office before the House.

General

The transition from a monarchy to a republic occurred on 13 December 1974. Parliament wanted the smoothest transition from one form of state to another. Consequently, no innovation was introduced to strengthen the office of the President compared with that of Governor-General. As a result, all references to the Governor-General in the Constitution were substituted by reference to the President of Malta.

This new Chapter substituted that relating to the previous office of Governor-General who was the representative of Her Majesty the Queen and appointed by her. With the establishment of the office of the President even the titles of the three sections which constituted Chapter V namely “establishment of office,” “discharge of Governor-General’s functions during vacancy etc” and “oaths to be taken” were retained in the new amendments except for the substitution by the term “the President”.

Article 48 establishes that the President is appointed by a resolution of the House of Representatives supported by at least two-thirds of all the members of the House. If such majority is not obtained, then the previous President continues in office until such majority is reached.

If one were to compare the method of election and removal from office of the President of Malta, with that of the office of similar non-executive Presidents in the European Union one immediately realises that the method chosen by the Maltese Constitution is a rigid one. In Italy, Germany, and Greece, for instance, the President is elected by the legislature, however a qualified majority is required only in the first rounds. In Italy, the election takes place, in virtue of article 83 of the Italian Constitution in a joint sitting of the two Chambers of the Legislature along with representatives of the regions. A two-thirds majority is required which reduces itself to an absolute majority on the third round of voting. In Germany according to article 54 of the German Constitution, a special federal Assembly composed of the lower Chamber – the Bundestag and representatives of the regions (Landers) elects the President by absolute majority; and indeed, in Greece if a two-thirds majority is not obtained for the election of the President, the Greek Constitution provides in article 32(3) that the Legislature is dissolved ex lege.

Election of President

Under the previous monarchical state, up to 1974, the Governor-General was in practice proposed by the Government of the day for a merely formal approval by the Queen; so initially it was felt that the method of selection should be as simple as possible. Since July 2020, a qualified majority is now needed to appoint the President of Malta. When a simple majority was enough to appoint the Head of State, no contest between candidates used to occur although on one occasion, the Opposition rather than merely voting for or against Government’s proposal in the House, proposed its own candidate.¹ The possibility of having more than one candidate for the Presidency following the 2020 amendments has now increased.

Disqualifications for Office of President

The Constitution provides that no person who holds or has held the office of Chief Justice or other judge of the Superior Courts may be elected President of Malta. The raison d’être of this provision is that no member of the Judiciary should be enticed to the highest office in the country while serving as a judge or after he leaves office; such a possibility may taint the independence and impartiality of the Judiciary.² The measure is, however, extremely draconian in nature for no matter how much time has elapsed since a judge held office, the disqualification is for life. Moreover, Magistrates who enjoy the same security of tenure as judges and who preside over Inferior Courts and have extensive powers particularly in criminal matters and proceedings, are not so disqualified. The other disqualifications are those contained in a series of articles of the Constitution which apply to ineligibility for membership of the Public Service Commission (article 109), the Broadcasting Authority (article 118) and the Employment Commission (article 120). This cross reference to other subsequent articles regarding the highest office of the land, is to say the least, untidy. Through the reference to these other articles, the Constitution does not allow any person holding the office of Minister, Parliamentary Secretary, a member or candidate for the election to the House, a member of a local authority or a public officer to be so appointed unless he of course resigns from that office. So what has happened in several cases where former Ministers³ were appointed to the office of President, is that a Minister resigns from his office and from member of Parliament the moment he is nominated by a parliamentary resolution to be appointed President, so that by the time of the taking of office, he would no longer be holding an office which is incompatible with the office of President. When the person elected by a parliamentary resolution takes office, he takes the oath of office before the House itself.⁴

1. In the election of Guido de Marco as President by a resolution of the House in March 1999, the Opposition proposed one of its former MP’s Professor Edwin Grech so that the House had before it two motions regarding the election of President. (see Ninth Legislature, Sitting 81, 29 March 1999).

2. Ugo Mifsud Bonnici, Il-Manwal tal-President, (The President’s Manual) (Office of the President) 8: “It was said that it was wise to strengthen the impartiality of the Judiciary vis-a-vis Government and the party in opposition if one eliminates any possibility of temptation for future promotion to this highest office in the State. There was also the wish that one should avoid as much as possible that a Chief Justice serves as Acting President (article 49) because such appointment caused a suspension of the ordinary work of the courts.”

3. Anton Buttigieg (1976-1981), Agatha Barbara (1982-1987), Censu Tabone (1988-94), Ugo Mifsud Bonnici (1994-1999), Guido De Marco (1999-2004), Eddie Fenech Adami (2004-2009) and Marie Louise Coleiro [Preca] (2014-) were all Cabinet Ministers when they were elected by the House to serve as President; one of them, President Fenech Adami was Prime Minister just before election.

4. Article 50 of the Constitution.

Term of Office

The term is for five years and is not renewable. Again, the non-renewability article is, rather strangely, not contained in the Chapter relating to the Presidency; but is found in a subsequent article, namely article 123(2), partly hidden and towards the end of the Constitution: Article 123(1): Save as otherwise provided in this Constitution, where any person has vacated any office established by this Constitution, including the office of Prime Minister or other Minister or Parliamentary Secretary, he may, if qualified, again be appointed, elected or otherwise selected to hold office in accordance with the provisions of this Constitution. (2) Sub-article (1) of this article shall not apply to the office of President, but shall apply to a person appointed to perform the functions of President in accordance with article 49 of the Constitution (emphasis by author). This roundabout way of preventing the President from serving a second term in the form of an exception to the general rule that all other holders of constitutional offices may have their term renewed is, to say the least, unsatisfactory. Sub-article 2 was introduced in 1974 through Act No. LVIII of 1974 when Malta became a Republic. This sub-article is not entrenched and may be easily transferred to the Chapter relating to the Presidency. Article 49 provides for the situation when the President is temporarily vacant or the President is absent from Malta in which case the Prime Minister, after consulting the Leader of the Opposition, shall appoint a person to serve as Acting President during such vacancy or absence, and if no such person is appointed, the office of Acting President shall be held, following a 2016 amendment, by the Speaker of the House of Representatives. Prior to such amendment the office of Acting President, where no one is appointed to that office, was held by the Chief Justice. This provision was practically the same as the one applicable to an Acting Governor-General before 1974. Prior to 1974, the Prime Minister never appointed an Acting Governor-General with the consequence that practically each time the Governor-General was away from the island, the then Chief Justice Sir Anthony Mamo, later to become the first President,⁵ took office temporarily. In 2016 the Constitution was changed in this respect for it was felt that the Speaker of an elected Legislature – as is the case prevailing under the Italian Constitution in article 86 – should occupy such office in the absence of any nomination by the Executive.⁶ This practice changed with the appointment of a President of the Republic. Indeed, in recent years a convention or practice has developed that the Prime Minister appoints as Acting President a person who holds a political opinion different from that of Government or of the President⁷, or that the person holding such office temporarily is alternately chosen by Government and the Opposition, respectively.⁸ All the disqualifications which apply to the Presidency, apply to any person temporarily holding such office. This norm seems to have been forgotten or ignored in one instance relating to the appointment of a former judge of the Superior Courts to hold the office of Acting President in 1986. Since then, no former member of the Judiciary, has served as Acting Head of State.

Removal of President from Office

Prior to 2020, the removal of a President from office could also take place by a resolution of the House, and this needed only a simple majority to be approved. Moreover, according to the Constitution, the reasons supporting the resolution did not need to be proven but merely alleged. This meant that, unlike the case of removal from office of members of the Judiciary where an actual trial takes place before the House and the misbehaviour or inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) have to be proved with evidence produced by the mover of the address for removal, in the case of the President the proposer of the resolution did not need to prove anything, and the resolution needed only a simple majority to be approved. In other countries whose Head of State is a non-executive President, a qualified majority of the members of the Legislature is usually needed for such removal.¹⁰ Following the 2020 amendments, a President can only be removed from office by a resolution supported by at least two-thirds of all the members of the House and the allegations of incapacity or misbehaviour have to be proven.

5. Although the Constitution prohibits the appointment of former judges to the office of President, the Constitution expressly provided for an exception to the first President who was unanimously elected to that office.

6. The proposal had first been made in a White Paper published by Government on 15 September 2012 entitled The Maltese Parliament: More Autonomy. More accountability and the Bill attached to such Paper, wherein it was stated that: “We believe that the elected officers of a body elected by the people ought to enjoy priority in this regard. Apart from other reasons, if a present or past judge may not occupy the office of President during his lifetime, how can he ex lege assume the office of Acting President? The practice in other European countries is to the effect, that in the absence of the Head of State, the Presiding Officer of a legislative organ temporarily assumes such role.”

7. Mrs Dolores Cristina, a former Nationalist Cabinet Minister, is invariably appointed Acting President during the absence of President Marie Louise Coleiro Preca. Mr Anton Tabone, a former Speaker of the House of Representatives (1998-2008) was usually appointed Acting President during the absence from Malta of President George Abela (2009-2014).

8. Between 1996 and 2004 the office of Acting President was occupied alternately by former Labour Minister Dr Joseph Cassar and former Speaker and Nationalist MP Dr Jimmy Farrugia.

9. Former Judge Anthony Montanaro Gauci was appointed Acting President for a period of seventeen days during President Barbara’s absence from the Islands between 2 and 19 November 1986.

10. In Germany a two-thirds majority is required for impeachment which takes place in a trial before The Federal Constitutional Court (article 61) while in Italy an absolute majority of all the members of both Houses in a joint sitting is needed (article 90).

Can Removal from Office be challenged in a Court of Law?

The problem, at least from an academic point of view, arises as to whether a removal from office on purely spurious grounds supported by a two-thirds majority of the members of the House can be challenged in a court of law. It seems that there is no impediment for such a course of action, provided that as such action is filed by the only person who has a juridical interest to do so, namely the removed President himself. The fact that now the process for removal needs a two-thirds majority support from all MPs makes such course of judicial action unlikely though not impossible. The Legislature of Malta, after all, powerful though it may be, is always subject to the supreme law of the land. The same applies, for instance, when the President on the advice of the Prime Minister removes a member of the Electoral Commission for inability to perform his functions, or misbehaviour (article 60(6)); or a member of the Public Service Commission (article 109(6)); or a member of the Broadcasting Authority (article 118(6)) or a member of the Employment Commission (article 120(6)), for the same reasons. Certainly, such a removed member would have the right to challenge such removal if the grounds on which it was based proves to be false.