News • 02 March 2003

Constitution rumpus for EU accession treaty

By Kurt Sansone

Two lawyers and two conflicting views. In the opinion of Iva campaigner Dr Austin Bencini EU Accession Treaty poses no difficulty for Malta’s Constitution and does not require a two-thirds majority in Parliament to be incorporated into law.

According to CNI campaigner, Dr Toni Abela, however, the EU Accession Treaty will have an impact on various aspects of the Constitution and a two-thirds parliamentary majority would be required.

Talking to MaltaToday Abela said that without a careful screening of the Constitution to determine which parts need to be amended, the referendum would be a futile exercise because it is putting the horse before the cart.

But for Bencini, the Accession Treaty does not require any change to Malta’s Constitution. "There is no obligation on Malta’s part to change the Constitution because it will remain the same, including the neutrality clause," Bencini said.

Abela, on his part, argued that a number of member states and candidate countries have had to amend their Constitutions.

Abela told MaltaToday: "These countries realised that for EU laws to apply in their countries without approval by parliament, they had to amend their constitution."

Abela referred to Article 6 of the Maltese Constitution, which recognises the supremacy of the Constitution over any other law and said it would have to be amended by a two-thirds majority to allow EU laws to have supremacy over Maltese legislation.

The CNI campaigner cum TV presenter explained: "The European Union Court has declared in a number of judgements that where a conflict arises between EU legislation and domestic laws of the member states, the supremacy of EU regulations over domestic laws should prevail."

Abela insisted the idea that some EU laws would have supremacy over Maltese ones contravenes Article 6 of the Constitution.

But for Bencini, the obligation on Malta’s part to adopt EU legislation is not an imposition.

Bencini argued: "The individual EU member states want to create a common market between themselves and for this to happen efficiently there have to be some common rules. Every state makes the necessary changes by means of its own national institutions for the common market to function."

Referring to judgements handed down by the European Union court Bencini said the principle adopted by the EU court has always recognised that the Constitutional protection of human rights in the member states is part of the European legal system.

"The EU Court also recognises the European Convention of Human Rights, which is already incorporated in Malta’s Constitution. Furthermore, the European Court will have to take into consideration the new charter of human rights drawn up in the Treaty of Nice," Bencini said.

The pro-EU lawyer said that the process is not a one-way street. "National legal systems influence the European process. They also give every EU citizen the right to take their country to court when the state does not comply with EU directives."

Abela, however, insisted that various parts of the Maltese Constitution require change. "I am not referring only to the neutrality clause, which most people seem to have focussed on. The Constitutional articles between 95 and 100 related to the courts need to be amended to accommodate the accession treaty and that requires a two-thirds majority in Parliament."kurt@maltamag.com