What the Constitution of Malta says about the disqualification of MPs and their tenure

Published: March 19, 2008 at 1:10pm

In view of all the misconceptions and misunderstandings surrounding who should have a seat in the House and who should not, I thought it best to look up the relevant articles in the Constitution of Malta, and publish them here.

It seems that it is Arnold Cassola, under article 54. (1) (a) who is disqualified from being a Maltese parliamentarian, though he has no doubt been arguing that the Constitution does not take into account the possibility that somebody might be a citizen of Malta as well as a citizen of Italy. However, I think that the sub-article in question is clear, unequivocal and specific: “No person shall be qualified to be elected as a member of the House of Representatives if he is a citizen of a country other than Malta, having become such a citizen voluntarily, or is under a declaration of allegiance to such a country.”

I suppose if anybody had tried to prevent him from standing for this general election under that Constitutional provision, or even to debate the validity of his candidature, the martyrs at AD would have been out in force with their minor children and wives at a press conference, making accusations of victimisation. Two weights and two measures, as usual.

Cassola was free to stand for the MEP elections because the Constitution has nothing to say about them. It deals only with MPs in the national parliament.

Mugliett has the ruddy nerve to whine on

All sorts of questions about Jesmond Mugliett’s position are opened up under article 55. (1) (c). It’s a shame they weren’t raised earlier in the day, rather than in the heat of an electoral campaign by an opposition political party which didn’t even have the sense to look up the Constitution and discover that by far the most effective and correct tack to take was challenging Mugliett’s tenure as an MP under this article. Instead, they chose to go with corruption, mixing up the meaning with favouritism or nepotism.

It’s such a shame that Mugliett’s constituents saw fit to elect him, even if fewer than usual gave him a first preference vote. Nobody expected the prime minister to include him in his cabinet after all the trouble he caused – except for Mugliett himself, who apparently thought he was still in the running, despite everything. He had the nerve to make a fuss about it when interviewed by The Malta Independent, complaining that the prime minister sent him a text message to inform him that his services would not be required. In the prime minister’s position, I wouldn’t even have bothered with that much. I would have found it difficult to make an effort at any form of civility.

This is what Mugliett – another person with no sense of self-awareness or of how he is perceived by the public – told The Malta Independent.

“I had always known that I was not a minister ad infinitum. It is a privilege that is granted according to the PM’s prerogative. However, I was disappointed at the way we (former cabinet members) were informed that we would not be back on board. In fact, at about 1.30pm on Wednesday I was informed via SMS that I would not be a cabinet member. I think we were owed a more dignified dismissal, as we were part of the cabinet that contributed to a PN victory.”

We were part of the cabinet that contributed to a PN victory….is the man in outer space? It doesn’t take in-depth electoral analysis to work out that he was probably one of the main reasons the Nationalist Party haemorrhaged voter support over the last year or so. Not only did he lurch from one mess to another, culminating in the Regional Road bridge debacle, but his behaviour made the prime minister look weak in failing to control him and kick him out of the cabinet. Perhaps the prime minister felt he couldn’t do it then, because he didn’t have the authority of a general election to back him up. But he certainly did it now. Good for him.

Here’s more from Mugliett:

“We were at least owed an explanation as to why we were not reconsidered for a cabinet post, and a thank you.” What – does he mean that he doesn’t know why? “I have received many SMSs and e-mails from constituents saying that they wanted me in the new cabinet. They were comforted by the fact that I am tranquil and have resolved to carry on assisting them as their MP. Months before the election, I informed the PM that I had severed my ties with my professional studio and was keen to move on to new pastures; after all I am still young.”

“I did not expect to have such a decrease in the number of first preference votes, however, this has been a trend experienced throughout by ministers. It was symptomatic of the PN campaign calling for new blood within the cabinet. And this has been used by several candidates.”

You should refer to article 55 (1) c of the Constitution of Malta, Mr Mugliett. Leaving aside the question of whether you should have resigned your ministerial post or not at the time, it seems that Sant & Mugliett’s involvement in the Regional Road bridge contract disqualified you from keeping your seat in the House. That is, unless you informed the Speaker – not the prime minister – about the situation. And if you did, then why didn’t we hear about it?

Once parliament is convened, the Speaker of the House – not the prime minister, an important distinction – should immediately ascertain whether Mugliett has truly severed all connections with the partnership that is still called Sant & Mugliett. Otherwise there are going to be questions raised about the validity of his tenure as MP.

Nobody can oblige an MP to resign, especially not the prime minister

Before the recent amendments which provide for correcting mechanisms to adjust seats to votes, the Constitution of Malta made no mention of political parties, but only of members of parliament. This is because members of parliament are representatives of the people, and not of political parties. We elect them to represent us. They are answerable only to us, and to the Speaker of the House. If we dislike their performance, we will simply not vote for them next time.

Strictly speaking, MPs are not answerable to their party leaders, even if they are elected on a party ticket. They can be kept in line by the party whip, and they have the sense to realise that their survival depends on keeping the party leader happy, but they are free to do as they please if they so choose to do. The parliamentary seat belongs to the MP, and not to the party. He can pick it up and take it across the floor (not literally), he can vote against his party, as Mintoff did in 1998, or he can retain his seat while resigning from the party – as Wenzu Mintoff did when he resigned from the Labour Party in 1989 and kept his seat in the name of Alternattiva Demokratika.

I’ve realised that a lot of people don’t understand how representative democracy is rooted in MPs and not in political parties. They fail to make this crucial distinction, which is why they are now saying that the prime minister should ask Jeffrey Pullicino Orlando to resign. The prime minister can do no such thing. He has no right to do so, and it would create a very dangerous precedent. Jeffrey Pullicino Orlando is not answerable to the prime minister. He would be answerable to the prime minister in his capacity as a cabinet minister, were he to hold such a post. As an MP, he is answerable only to those who elected him as their representative. They are the ones who can say whether they wish him to carry on representing them or not, and the only mechanism for doing this is the next general election in 2013. Until then, Jeffrey Pullicino Orlando stays whatever the merits of his case, because we cannot have a situation in which MPs are forced out of parliament by what purports to be public opinion or, even worse, autocratic pressure from the party leader. The party leader can oblige an MP to resign from the party. He cannot oblige an MP to resign his seat. That seat is his – again, I repeat, whatever the merits of the case.

The Constitution does not distinguish between government and opposition MPs in disqualification and tenure

This means that the article 55 (1) c which makes an MP’s seat untenable if he or she is party to a contract of service to the government of Malta – save for certain provisions – also applies to MPs on the opposition benches. They, too, are subject to scrutiny for such involvement. Here are the relevant articles from the Constitution of Malta.

54. Disqualification for membership of the House of Representatives

  1. No person shall be qualified to be elected as a member of the House of Representatives –
    1. if he is a citizen of a country other than Malta having become such a citizen voluntarily or is under a declaration of allegiance to such a country;
    2. save as otherwise provided by Parliament, if he holds or is acting in any public office or is a member of the armed forces of the Government of Malta;
    3. if he is a party to, or is a partner with unlimited liability in a partnership or a director or manager of a company which is a party to, a contract with the Government of Malta being a contract of works or a contract for the supply of merchandise to be used in the service of the public and has not, within one month before the date of the election, published in the Gazette a notice setting out the nature of any such contract, and his interest or the interest of any such partnership or company, therein;
    4. if he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Malta;
    5. if he is interdicted or incapacitated for any mental infirmity or for prodigality by a court in Malta, or is otherwise determined in Malta to be of unsound mind;
    6. if he is under sentence of death imposed on him by any court in Malta or is serving a sentence of imprisonment (by whatever name called), exceeding twelve months imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court;
    7. if he holds or is acting in any office the functions of which involve any responsibility for or in connection with, the conduct of any election of members of the House of Representatives or the compilation or revision of any electoral register;
    8. if he is disqualified for membership of the House of Representatives by or under any law for the time being in force in Malta by reason of his having been convicted of any offence connected with the election of members of the House of Representatives.
  2. For the purposes of paragraph (f) of sub-article (1) of this article –
    1. two or more sentences that are required to be served consecutively shall be regarded as separate sentences if none of them exceeds twelve months, but if any one of them exceeds that term they shall be regarded as one sentence; and
    2. no account shall be taken of a sentence of imprisonment imposed as an alternative to, or in default of, the payment of a fine.
  3. A person shall not be treated as holding, or acting in, a public office for the purpose of paragraph (b) of sub-article (1) of this article –
    1. if he is on leave of absence pending relinquishment of a public office;
    2. if he is a teacher at the University of Malta who is not by the terms of his employment prevented from the private practice of his profession or called upon to place his whole time at the disposal of the Government of Malta.

55. Tenure of office of members

  1. The seat of a member of Parliament shall become vacant –
    1. upon the next dissolution of Parliament after his election;
    2. if he resigns his seat by writing under his hand addressed to the Speaker or, if the office of Speaker is vacant or the Speaker is absent from Malta, to the Deputy Speaker;
    3. if he becomes a party to a contract with the Government of Malta being a contract of works or a contract for the supply of merchandise to be used in the service of the public, or if any partnership in which he is a partner with unlimited liability or a company of which he is a director or manager becomes a party to any such contract, or if he becomes a partner with unlimited liability in a partnership or a director or manager of a company that is a party to any such contract: provided that he shall not vacate his seat under the provisions of this paragraph if before becoming a party to the contract or before, or as soon as practicable after, becoming otherwise interested in the contract (whether as a partner with unlimited liability in a partnership or as a director of manager of a company) he discloses to the Speaker the nature of the contract and his interest or the interest of the partnership or company therein and the House of Representatives by resolution exempts him from the provisions of this paragraph;
    4. if he is absent from the sittings of the House of Representatives for such period and in such circumstances as may be prescribed by the Standing Orders of the House;
    5. if he ceases to be a citizen of Malta;
    6. if he ceases to be qualified for registration as a voter for the election of members of the House of Representatives;
    7. subject to the provisions of sub-article (2) of this article, if any circumstances arise that if he were not a member of the House of Representatives, would cause him to be disqualified for election thereto.
    1. If circumstances such as are referred to in paragraph (g) of sub-article (1) of this article arise because any member of the House of Representatives is under sentence of death of imprisonment, interdicted or incapacitated or adjudged to be of unsound mind, adjudged or otherwise declared bankrupt or convicted of an offence connected with elections and if it is open to the member to appeal against the decision (either with the leave of a court or other authority or without such leave), he shall forthwith cease to perform his functions as a member of the House but, subject to the provisions of this article, he shall not vacate his seat until the expiration of a period of thirty days thereafter: provided that the Speaker may, from time to time, extend that period for further periods of thirty days to enable the member to pursue an appeal against the decision, so however that extensions of time exceeding in the aggregate one hundred and fifty days shall not be given without the approval, signified by resolution, of the House.
      If, on the determination of any appeal, such circumstances continue to exist and no further appeal is open to the member, or if, by reason of the expiration of any period for entering an appeal or notice thereof or the refusal of leave to appeal or for any other reason, it ceases to be open to the member to appeal, he shall forthwith vacate his seat.
    2. If at any time before the member vacates his seat such circumstances as aforesaid cease to exist, his seat shall not become vacant on the expiration of the period referred to in paragraph (a) of this sub-article and he may resume the performance of his functions as a member of the House of Representatives.
    3. For the purposes of this sub-article “appeal” means, in the case of an order by a court of voluntary jurisdiction for the interdiction or incapacitation of a member of the House of Representatives, the taking of any action for the review of that order before the Civil Court, First Hall.



40 Comments Comment

  1. Malcolm Buttigieg says:

    From what I gather, it also appears that two MP’s, one of them a deputy/acting leader of one political party, were at some point in breach of the above conditions when their properties were leased to a government owned corporation.

    Interesting!

  2. Daphne Caruana Galizia says:

    Yes, Malcolm – thank you for bringing that up. It just goes to show that even our MPs themselves are unfamiliar with these articles in the Constitution.

  3. Dumbledore says:

    Any comments about the current online poll of timesofmalta.com?

  4. Simon says:

    The most insulting statement from both Mugliett and Frans Agius is that they expected a ministry “not for themselves but for their constituents……..my constituents were so disappointed and they called me to show their support”!! Who do they think they’re kidding? In which planet do they live?

    Same thing goes for Jason Micallef. He will not resign because he “owes it to the delegates who have elected him”. Come on.

  5. Bendu says:

    Just heard that Not Mangion is not standing for any post in the party’s leadership. Could this be associated with Pender Place, etc. etc. If that is the case then I presume others like perit Buhagiar could feel uneasy.

  6. Daphne Caruana Galizia says:

    Dumbledore – read my column in The Malta Independent http://www.independent.com.mt 20 March. The resignation of an MP who is answerable only to his constituents should not be put to the popular vote.

  7. lino says:

    Dumbledore,
    I don’t think it is professional to hold a poll for a case still under police investigation.

  8. Unfamiliar!!!! Or perhaps conveniently oblivious?
    Thye are the types who strian at a gnat and then expect others to swallow camels, more likely! :-[

  9. Joseph G. says:

    Just a couple of comments.

    If Dr. Gonzi keeps to his promises and carries out the PN manifesto, the next election will just be another nightmare for the MLP. Freinds of mine who are MLP loyalists are ready to switch over next time round if the 353 manifesto points are carried through.

    Last point. No matter how much discussions go on within the MLP, the next “leader” as he is described, will be an Afred Sant alcolyte. And by the way, why did Dr. Sant stay on ? And why does he need to consult with the new leader before parting ways ? He just wants to make sure that his negative legacy trives…….

  10. Unfamiliar!!!! Or perhaps conveniently oblivious?
    They are the types who strain at a gnat and then expect others to swallow camels, more likely! :-[

  11. Vanessa says:

    Pity that our MP’s take having a public office for granted. Public support doesn’t always choose the best candidates for the job. See the eurovision fiascoes along the years. It’s true that Agius has a strong support down here, but that doesn’t make him the sharpest knife in the drawer… excuse the pun.

    As for Mugliett, “least said, soonest mended!” as the good Mrs Lipton used to say… (remember her?)

  12. Paul Spiteri says:

    Where does this place Buhagiar of the MLP?
    Wasn’t he the architect and or surveyor for the roads built in Gozo?

  13. Chris says:

    Most probably the list should include all the architects and most of the notaries as MP’s on both sides of the House – this revelation should make parliament quite interesting. ;)

  14. Gorg says:

    How on earth did Jesmond Mugliett ever imagine that the PM was going to call him that afternoon. I’m surprised the PM even sent him an SMS to tell him thank you but no thank you..! All he did was make the margin of victory even more smaller with his so many overruns, so much mismanagement, the problems he caused in the ADT and how major developers had him and his Ministry do exactly what they wanted.

    All he did was look out the that window pearched high on the hill…. Before he knew it.. It was time to start campaigning.. Then he realised that he did NOTHING.!!

  15. Louis says:

    Mr Mugliett will be forever remembered for the St Paul’s Bay bypass, he left it as how he found it, with part of one carriageway not in use.

  16. Vanessa says:

    Please read Emmy Bezzina’s letter on today’s issue of Tha Malta Independent :

    http://www.independent.com.mt/news.asp?newsitemid=66581

    if this man isn’t delusional, then I don’t know who is…

  17. Corinne Vella says:

    Albert Farrugia: Since individuals, rather than parties, are voted into parliament, why does AD insist on the moral right to a parliamentary seat on the basis of its candidates’ cumulative total of votes?

  18. Gerald says:

    have you all gone to sleep?

  19. Mario Debono says:

    I happen to not agree with Daphne here. Muliette was not a bad minister. He just did not have the material around him that worked. And no one wanted to assume the Adt in the manegerial sense. It was, and still is, a mess, concerned more with trying to round up english plate cars than actually enforcing legislation that worked. Jesmond was not a bad minister, just not a competent enough manager. Neither was Frans Agius. He just was not allowed to funcion, as happens to many parliamentary secretaries. As regards a ministry however, its the Prim who decides. I have some slight reservations on some new faces, but on the other hand, if we dont try out the new ones, who will?

  20. Bootroom says:

    Question: Why did PN let Mugliett contest the elections on their ticket?

  21. Simon says:

    Did you read Emy Bezzina’s letter to TMI today? The guy is calling for a fresh general election to be held immediately. According to him we have a minority government and the people are confused!

  22. Tony Pace says:

    Remember,”Yes Minister”??
    After an election an MP used to nervously ‘wait’ for the phone-call asking him to meet the Prime-minister, and if he did NOT get the call, tough luck.
    I actually think that considering the circumstances, Dr. Gonzi’s SMS was a courtesy.

  23. kenneth Spiteri says:

    The one and only problem Jesmond Mugliett had was, he was damn too good …..
    He trust people around him and they betrayed him….

    In Today politics you need to be …..GAFFA ……..

  24. Babnik says:

    I agree with Daphne that an MP is NOT answerable to his/her party, but I do NOT agree that he/she is answerable to his/her constituents/voters only. An MP is paid for by our taxes and is thus answerable to all of us. Including those who didn’t vote for him/her!

    [Moderator – Yes, he is answerable to you, but that does not give you the right to form a lynch mob and storm the Palace.]

  25. amrio says:

    http://www.timesofmalta.com/articles/view/20080320/local/malta-applies-to-rejoin-pfp

    I had long forgot this issue – any comments?

    [Moderator – In what way is membership of the Partnership for Peace an issue? If joining an organisation as diverse as the PfP will upset Malta’s claim to neutrality (as though there is such a thing), then we might as well pull out of the UN. Russia is a member of the PfP, while allied with Libya and China, so the Labour Party need not worry about offending any of its friends.]

  26. Daphne, I agree with whatever you have written about those former Ministers who have been left out of the Gonzi Cabinet. What people don’t know is that a number of Mugliett’s secretariat staff got managerial jobs within the Malta Transport Authority!

  27. amrio says:

    1) Anyone out there has ever taken Emmy Bezzina seriously?

    2) To Moderator re: PFP. I believe that joining PFP was one of the issues in 96 and 2003 (remember KMB saying our soldiers will go and fight other countries’ wars?). What I meant by my comment was that one may not understand why we have asked to rejoin PFP a full 12 years after we got out, and why, since this was one of AS’s empty hot potatoes in ’96, this rejoining was not brought up in the run-up to the election, nor as far as I know is it part of the PN electoral manifesto.

    Lest someone misunderstands me, I am not arguing against joining PFP….

    [Moderator – How could I forget KMB and Mintoff’s Front Maltin Inqumu?]

  28. Corinne Vella says:

    Amrio: yes, Emy Bezzina takes Emy Bezzina seriously. Apparently, so does Norman Lowell.

  29. Meerkat :) says:

    KMB’s and Mintoff’s Front Maltin Iqumu reminds me of The Only Way is Up Lejber…I don’t know why…maybe cos both er remained er…flaccid…insomma nothing came up ;-)

  30. Indannata says:

    How come that almost 15 days after the election Mugliett is still show as Minister for Urban Development and Roads??:
    http://www.mudr.gov.mt/pages/main.asp?sec=19

    Is Dr Gonzi aware of this?

  31. amrio says:

    @Meerkat

    ROTFL!!!

    U ejja! Remember we are talking about 3 guys with the KartaAnzjan here. You can’t expect arousing miracles there!!

  32. Daphne Caruana Galizia says:

    @Indannata – their moderator is probably not as efficient as ours.

  33. Indannata says:

    Hey Daph, it was really bad that Dr Gonzi did not take note when you asked him to get rid of Mugliett last summer if I remember correctly in one of your articles.
    Too bad. See – Men just don’t listen!

  34. Indannata says:

    Hi Simon,
    I remember somebody (AS) once saying that partnership won, the same way that Dr Bezzina is saying that we only have a relative majority. BTW how many votes did Dr E B get this time?

  35. Vanni says:

    Simplifying Emmy’s contribution:

    1) We are all confused
    2) Gonzi is an honest dupe
    3) the goverment is a minority
    4) The PM tries hard, but he is still an idiot
    5) Sant disapointed his followers by resigning (I wonder how the budding Leaders are keeping their sorrow in check)
    6) Two smaller parties’ leaders are history (er one and a half actually, as Harry left the door not just ajar, but wide open for his reinstatement)
    7) He than calls us (the electorate) mostly idiots
    8) He thinks the sun shines out of Lowell’s ….(I’ll save the mod the hassle)
    9) He wants the PM to call an election, but NOT to resign

    I give up

  36. Corinne Vella says:

    Indannata: Enough to make him feel in charge, boss us all around, and tell the whole country what to do. He’ll be inventing democracy next.

  37. Daphne Caruana Galizia says:

    @ Indannata – exactly. The prime minister was perfectly within his remit to demand Jesmond Mugliett’s resignation from his ministerial post, but he didn’t. And now we are being treated to all this Stalinist whipping-up of public opinion to force an MP to resign for something he did or didn’t do – and not in this legislature, either, but the last one.

  38. Meerkat :) says:

    Hey Vanni ruhi, don’t worry too much about Emy.

    Let’s send him to join Madame ‘Champagne Socialist’ Benoit’s merry band of Honourable Gentlemen…Fredu u Harry. I am sure they have lots of leftover champers that Lou sent around to her on the 9th March.

  39. Vanni says:

    @ Meerkat :)

    Victor Laiviera is still lost in Valletta, Che europarl Guevara Bond seems to be in the middle of a revolution.
    Emmy’s words of wisdom looked like being a nice juicy target…..

  40. Meerkat :) says:

    mela europarl is looking for victor in valletta…forsi qed jghinhom Carry On Anglu ifittxu l-voti mixtrija

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