All the President’s misgivings

It would be a gross distortion of democracy, for the government to be held hostage by the incumbent President’s moral sensitivities

Cartoon by Mikiel Galea
Cartoon by Mikiel Galea

In an unprecedented move last Thursday, President Marie-Louise Coleiro Preca signed the in-vitro fertilisation act into Law ‘under protest’: clearly indicating that she did so despite having serious personal misgivings about the bill approved by Parliament.

An unusually personal statement issued by the Office of the President said that “after seeking ethical, moral and legal advice from several experts in the field and following a long period of reflection and personal discernment, I have taken the decision to sign the Act”. Without hiding her personal objections to the law, Coleiro Preca said she was signing it “solely out of respect and loyalty” to the country’s democratic process and to the Constitution.

This is anomalous for a number of reasons, and none of them have much to do with the issue under scrutiny – assisted reproduction, with particular reference to embryo freezing – or even with the President’s private opinions or moral qualms. The main cause for concern is, in fact, an apparent conflation of two very distinct issues: the President’s Constitutional role within the legislative process, and the views of the person occupying that role.

Article 72 of Malta's Constitution is very clear on the former point: “The power of Parliament to make laws shall be exercised by bills passed by the House of Representatives and assented to by the President”; and “when a bill is presented to the President for assent, he shall without delay signify that he assents”.

This leaves little room for the secondary concern... but not no room at all. Although the Constitution makes it clear that the President of Malta must “assent without delay”, she could – as Coleiro Preca said was an option she had forgone – absent herself from the island on an overseas trip to coincide with the signing of the bill. The bill would then end up on the acting president’s desk.

That would be the ideal solution for a president with moral qualms about a law, but who still does not want to impede the necessary democratic process for laws to be passed by MPs.

Other than that, the only other option is for the President to refuse to endorse the law and resign, paving the way for the election of a new head of state by a simple majority in the House.

This is another option the President chose to forego, signalling to the entire population that she is performing her constitutional duties without the usual serenity that might otherwise characterise her role. Refusing to sign the law would have been a breach of the Constitution, and therefore illegal – prompting a constitutional crisis.

In such a hypothetical scenario, this kind of unilateral action could conceivably prompt a tug-of-war with the government, in the sense that – in a bid to avoid the crisis – the President’s refusal to sign the law could have forced the government to repeal the law altogether.

One cannot overstate the danger in such a scenario: Parliament is democratically elected to legislate, but Presidents are de facto appointed by the government of the day. It would be a gross distortion of democracy, for the government to be held hostage by the incumbent President’s moral sensitivities.

In this sense, the President’s statement this week was a reminder of how Marie Louise Coleiro Preca views, not just her constitutional role but also her own persona: in being accommodating to pro-life groups she has come to enjoy the political strength that her role, as one which serves to unite the public, can play... but doesn’t, in Malta’s Constitutional set-up.

To be fair, Coleiro Preca stopped short of this... and on other occasions has also used the strength of her office for commendable causes: to make the emarginated visible, and to deliver strong messages of popular solidarity. Notable among these were her professed solidarity for migrant workers and asylum seekers, her repeated warnings that Malta’s environmental sustainability is at risk due to years of unbridled development; and most importantly, her Republic Day speech in which she warned of the abuse of freedom of expression by partisanship and fake news: “It is morally and ethically unacceptable, that sections of the traditional media, as well as bloggers and individuals, make use of social media, to attack the private lives of persons, and their family, even those in public life, to appease some people and generate hate amongst us.” 

Having said this, it is clear to everyone that while the President is entitled to make her views known in the appropriate fora, her constitutional role in signing laws should be carried out with the gravitas the office demands. That her views on a subject are known is by no means the controversial aspect of her statement this week; what makes her action questionable is that she infused an element of doubt, motivated by her personal beliefs, into the democratic process of legislation.

If every law of the country had to carry with it a statement of perceived dissent from the Head of State, the entire legislature would be instantly put in doubt. At such a juncture, the President should be drawing a clear delineation between her public statements, and how she carries out her constitutional duties.