In reply to our politicians' cant

Published: July 12, 2010 at 12:14am

1. It is parliament which enacts laws, and not political parties or the government. Parliament legislates. That’s why it is known as the legislature. But most of us remain completely unaware that ‘legislature’ means parliament itself and think instead that it means a government’s term of office. The current divorce debate more than amply illustrates that we don’t even understand what a parliamentary democracy is when we talk about it.

2. The leaders of both political parties are now taking advantage of this widespread ignorance to promote the idea that they are not responsible for taking decisions and legislating. The leader of the opposition told us that he will wait until he is prime minister to bring before the house a private member’s bill on divorce, and was made to look a fool by Jeffrey Pullicino Orlando. And now the prime minister has seen fit to go one better and tell us that he must refer the matter of divorce back to the electorate.

2. If there is a majority in parliament for a piece of legislation – in other words, if the majority of members of parliament, and parties do not come into it, are for divorce legislation – then it is only fit and proper that this majority passes such legislation as it deems necessary, whether or not it was in either party’s electoral programme. The country’s constitution does not recognise political parties. How much less, then, does it recognise the electoral programmes of those political parties. Party electoral programmes have no force of law. A political party need not have a manifesto at all. Tough, but true.

3. In Malta’s constitutional system, MPs are not electors’ delegates like the presidential convention delegates in the United States. That is why they are not called delegates. They do not vote as we instruct them to vote. They are our representatives, not our delegates, which means that they are there to take decisions on our behalf, with or without consulting us, once we have elected them to do so. The basic premise in our representative system is that we elect those whose judgement we trust, and that we then leave them to get on with it. The Maltese parliament is the country’s ONLY legislative body. It does not only have the right but also the duty to legislate on matters that it deems necessary, whether or not these were mentioned in an electoral programme.

4. All talk about whether the government has a mandate to legislate for divorce is nonsensical and shows scant knowledge of the constitution and of Malta’s parliamentary democracy. The legislative body is NOT the government. The government does not and cannot legislate. This power is vested solely in parliament. The question, then, should be ‘Does parliament – and not the government – have a mandate to legislate for divorce?’ Or, more to the point, that question should be: ‘Does parliament have a mandate NOT to legislate for divorce?’

5. If both the political parties in parliament had declared in their 2008 manifesto that they would NOT introduce divorce legislation, then there certainly is a good political argument that neither party should bring such a bill before parliament. But both parties were silent on the issue of divorce and if someone had not forced it as Jeffrey Pullicino Orlando did, they will stay silent or use evasive tactics for as long as the electorate permits them to do so. They will do their level best to maintain the silence even now. Labour has already tied its flag to the mast of further silence, three years before the day: the party has said that it will not pledge divorce legislation in its 2013 electoral programme and will instead leave it up to Muscat to present a private member’s bill while prime minister, however silly this might be in our Westminster model.

6. In short, no political party or MP is hindered politically or legally from introducing divorce legislation, though many of them are now clutching at their consciences like drowning men at straws.

7. The governing party has more of a mandate to introduce divorce than it had to remove the subsidies on bread, kerosene, water, electricity and gas – none of which were promised in an electoral manifesto.

8. In our system, parliament can and should legislate where necessary. After it does so – this is an important point as the actual legislation, and not just the bill or the suggestion of it, must come first – there are two types of laws which are null and void: a) those declared by the Constitutional Court to be inconsistent with the Maltese Constitution or the European Convention on Human Rights; and b) those that are the subject of a majority Yes vote in an abrogative referendum (a referendum to have a law repealed). A petition to call an abrogative referendum must be signed by 10% of the electorate, and no less than half the electorate must vote in that referendum.

9. Parliament exists for one purpose only: to legislate as it deems fit for the good government of the country. That legislation then stands until it is changed or repealed by a subsequent law enacted by the same parliament or one which comes afterwards.

10. I would argue that parliament has even more of a mandate to legislate for divorce because the electorate has the right to force an abrogative referendum. Those MPs who argue that they do not have a mandate to legislate for divorce can soothe their aching consciences by reminding themselves that if just 10% of the electorate demands an abrogative referendum, then the Electoral Commission is obliged to hold one. The Catholic Church is more than able to collect 31,000 signatures in three hours on a Sunday morning.

11. Eddie Fenech Adami, in comments published in The Sunday Times today, said that the president should not sign a divorce bill if there is no popular mandate. Fenech Adami, together with Guido de Marco and Ugo Mifsud Bonnici, in 1974 led a substantial faction of Nationalist MPs to vote in parliament for the Constitutional amendments introduced by Dom Mintoff. The 21 Nationalist MPs who voted for those amendments certainly did not have a mandate. They also voted to REMOVE the referendum required to amend the most important parts of the Constitution. They did this through a legal ploy by removing the supremacy of the Constitution for two days because of a loophole. And now they talk about a popular mandate.

12. Of course, the correct argument then and now is that in politics one must react to the needs of the time. Ideally, one should preempt them, but with divorce, it’s too late to talk about preemption. In 1974, despite not having an electoral mandate, Nationalist MPs, led by Fenech Adami, de Marco and Mifsud Bonnici, arrived at a consensus with Dom Mintoff that gave us a settled Constitution for the first time ever, one could argue, in our political history. The same argument applies now: the right of married people to terminate their contract of marriage should be accepted as a right and not as the subject of some kind of mandate from others.