Experts agree Constitution does not allow multiple Presidential terms

Constitution has ‘peculiar’ way of setting one-term President limit, Tonio Borg says

Malta’s Constitution stipulates that a President of the Republic can only serve one term, former deputy Prime Minister Tonio Borg, and dean of the Faculty of Laws at the University of Malta, Kevin Aquilina, have said.

However, Borg said that the Constitution put this in a somewhat 'peculiar' way, as he explained that “Article 123 provides that a Prime Minister, a minister and a parliamentary secretary can be elected or appointed more than once, but it then goes on to say in sub-article (2) that this provision does not apply to the post of President.”

The two were speaking on Ghandi Xi Nghid, hosted by Andrew Azzopardi, where Borg highlighted that it had been “40 years since Malta became a republic, and it is good that we now have another look at the [Office of the] President”.

"The necessary studies have to be undertaken [before discussing whether the limitation on the President's terms should be removed], and we would then need to see if the public is in favour of this," Aquilina said.

“The problem is that if we change the way a president is elected, should we also change the powers the post holds?” Borg asked, “At the moment, the President only has powers which can be used in an emergency. The President also chooses the Prime Minister, but this is easy to do in a two-party country such as ours, where the winner is always clear.”

One way the President’s power could be increased, Borg said, is by giving her the ability to elect a public official in cases where the Prime Minister and the Opposition cannot agree on who to appoint. The appointment of the electoral commission chairman could be an example of this, he maintained.

“The Constitution currently obliges the President to act according to the advice of the government of the day, bar situations of national crisis, such as when a government loses its parliamentary majority but stays in government,” Borg highlighted, “In such a case, the President acts as a referee and blows the whistle.”

“Giving the President more powers will lead to unavoidable controversy,” he said.

Godfrey Pirotta, public policy professor at the University of Malta, also a guest on the programme, noted that the issue related to the President’s single term had come up once before, in 1987, when Paul Xuereb was appointed Acting President for two years when previous president’s Agatha Barbara’s term had come to an end and couldn’t be renewed.

Constitution never comprehensively revised

Aquilina said that in 53 years nobody had ever sat down and looked at how the Constitution could be revised, and it had only been amended on the basis of current necessity as time went by.

“Any [comprehensive] revision should not be done only by members of parliament, but should also involve experts, civil society, employers and anyone who has an interest.”

He said that in certain cases, the Constitution no longer conformed to the principles and values of the Maltese people.

“Although the death penalty was abolished when we ratified the European Convention on Human Rights, the concept of the death penalty still exists in the Constitution,” he said, “We have now moved forward, and developments have taken place, but the Constitution has remained the same.”

“Hypothetically speaking, if the government wanted to reintroduce the death penalty, which would require the enacting of a specific law, it could do so as it would not be anti-Constitutional,” Borg added.

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