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

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.
2. 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.