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The Maltese Constitution and Constitutional History Since 1813 J.J.

. Cremona Chapter 1: The 1813 and 1835 Constitutions Introduction In the beginning of the 1800s Malta freely and voluntarily placed itself under the protection of Great Britain and recognised the monarch as their sovereign The history of the development of the constitution of Malta is remarkable in the sense that it has had many ups and downs The Royal Commissioners of 1931 stated that it would almost be possible to plot a graph of constitutional history, based on constitutions modelled either on principles of benevolent autocracy or on representative government Constitutional history in Malta would start with gubernatorial autocracy: power rested with the governor of the state, whose enactments took the form of Proclamations and Notifications or Bandi The 1813 Constitution The 1812 Royal Commissioners suggested that an advisory council (4 Maltese and 4 English members) should be formed to reduce the absolute power of the Civil Commissioner When Sir Thomas Maitland was appointed governor in 1813, he could form a nominated council similar to the suggested one but different in composition (6 members: 4 sitting ex officio and the rest appointed by the governor) which was to simply advise, however this council was never formed Maitland was a strict but benevolent autocrat who could take anything except opposition. Though he was authoritarian he was a good statesman and administrator, bringing about many changes in the administrative and judicial systems of the island. He believed he should rule without nay help: British rule in Malta started with complete autocracy Malta being acquired by the British followed the failure of Bentincks English Constitution in Sicily, and the coming into effect of the new, more flexible and more controllable Crown Colony system to replace the old representative system, which was found to be unstable The Maltese were disappointed with the Crown Colony system because they wanted a representative council because of: o Ancient rights and privileges o The old Consiglio Popolare o The fact that Malta voluntarily associated itself with Britain, and the two had fought off the same enemy (The French) o The provision of the 1802 Declaration of Rights of the Inhabitants of the Islands of Malta and Gozo The 1835 Constitution Due to 2 petitions presented to the House of Commons in 1832, and the efforts of George Mitrovich (a Maltese leader) and William Ewart (a liberal politician in the House of Commons championing the Maltese

cause), William IV gave instructions to found a council to advise and assist in the administration of the government The council was to consist of 7 members excluding Lieutenant-Governor: o Four official members (Senior officer of Land Forces, Chief Justice, Bishop of Malta and Chief Secretary to the Government) o 2 Maltese, to be chosen by the head of Government from among the chief landowners and merchants o A British-born principal merchant of the Island, selected by the Head of Government The first hint of the corporate principle was present in Malta The Chief Justice only needed to be present when legislative matters were being tackled: this did not conform to the principle of separation of powers. The chief justice was left out in the 1838 reconstitution of the council, however under the 1887 constitution, in 1893 the President of the Court of Appeal, Sir Joseph Carbone, was appointed Vice-President of the Council of Government The head of government would consult the council regarding issues of difficulty and importance, except for urgent issues which would be quickly brought before the council for revision and sanction Only the head of government could bring questions in front of the council: members could at most suggest motions for discussion by written application There were cases where the head of government could act against the opinion of the council, though it was pressed by the Secretary of State that he could only do so in special cases and on his own responsibility: when he did so he had to give reasons to the Secretary, and members might require their advice to be recorded in the minutes The council was legislative, however since there was no provision in the constitution for elective representation and the head of government kept overriding powers, Maltese politicians disapproved of the situation Though Proclamation no. 88 of 1837 empowered the governor and council to summon strangers and punish them for acts of contempt, no provision was made to create an executive council: the ordinary twocouncil pattern (legislative + executive) was not applied to Malta until 1881 By Letters Patent and Royal Instructions in 1838, the council was reconstituted: o Official members were reduced to 3 (Senior Officer in command of Land Forces, Chief Secretary to the Government and the Auditor General) o The Bishop resigned in 1836 following instructions of Rome o The new instruments left out the 1835 provision stating that the governor could act in opposition to the advice of the majority of the council The most important measure passed by the Council of Government was Ordinance No. IV of 1839, introducing freedom of the press and a law of libel, based on a draft by the Royal Commissioners of 1836 and passed on the 14th March 1839: before this all printed matter had to be censored according to a rule of law common to European nations

Chapter 2: The 1849 Constitution A new constitution was granted by the Letters Patent of the 11 th May 1849, providing for the setting up of a council of 18 members, which had the power of making laws for the peace, order and good government of the Island as long as these laws were not repugnant to: o The laws of England o The statutes of the UK o Any order in council extending to Malta o The Letters Patent that constitute the council o Accompanying Royal instructions However, power to legislate generally was still reserved to the crown. This power was used in 1854 to promulgate the Codes of Criminal Laws and Regulations of Police, though it raised a politico-religious storm when it was discussed in the Council The power of disallowance (refusing to declare a law valid) was reserved for the Crown and the power of veto to the governor Council members could propose laws or resolutions, but where a grant of public money was involved, the Governor had to initiate it. All questions to be decided had to obtain a majority from members of council actually present. Aid of one or more judges might have been required to discuss laws The council consisted of: o Governor (official + casting vote) o 8 elected unofficial members (7 for Malta + 1 for Gozo) o 9 official members (4 English + 5 Maltese) Members were to be natural-born or naturalized British subjects of 21 years or older. Judges and Ecclesiastics were disqualified from membership by Letters Patent in 1857, but in 1870 the Letters Patent concerning ecclesiastics were revoked, and after a successful referendum, it was provided that no more than 2 ecclesiastics at the same time could be council members. Voting in the referendum was limited to persons over 21 who were legally qualified to serve as common jurors or any jury in Malta that sat for trials of criminal offences, or those who would have been eligible to become jurors if not for their age, office or profession. Under Article VII of Proclamation VI of the 15th of October 1829, which introduced a modified version of trial by jury in some criminal cases, one could serve as a juror if: o He was between the ages of 21 and 60 o Resident of the Maltese Islands o Had in his own name or in trust for him at least 100 scudi of Malta a year, in lands or tenements, or in rents issuing from them, or held or occupied a dwelling with a yearly rent of at least 50 scudi, or was a partner in a mercantile establishment with a person having either of the above two qualifications o Was of good character and reputation o Competently versed in English or Italian General elections were to be held every 5 years, unless the council was dissolved earlier

The Letters Patent of 1849 made no provisions on qualifications of council members, or election of persons returned to the council. Since the Crown Advocate held that there was no tribunal competent enough to handle these questions, Letters Patent were issued in 1856; the council could handle matters that the governor referred to it, regarding vacancies in its composition To avoid this power being misused, persons aggrieved (feeling they have been unfairly treated) by the council had the right to appeal against the decision to Her Majesty in Council In constitutions after this one, the right to be or remain a member of the Maltese legislature was determined by the Court of Appeal (Independence Constitution The Constitutional Court) It must be remembered that the Parliamentary Elections Act 1868 where the trial of disputed elections in the UK was transferred to the courts was not yet on the statute book Four Maltese lawyers in the 60s clamoured for a reform to give politicians control in domestic matters, especially in the supply of public moneys Cardwell, Secretary of State for the colonies, took the first step when he wrote to the Governor that respect should be shown towards the opinions of council members in matters of local and domestic interest, and no vote of money should be pressed against the majority of elected members except in situations where public interests or credit were at risk. Even then, this should not be done without an immediate report to the Secretary of State In 1877 the Barbaro Incident occurred: Ramiro Barbaro di San Giorgio, an elected member, author and orator, uttered words in the council, which a stranger considered slanderous: he took out a summons against Barbaro Although members declared this an infringement on privileges of the council, Crown Advocate Sir Adrian Dingli held that nothing in the constitution exempted council members from court jurisdiction. The Court of Magistrates sentenced Barbaro to 3 days of detention, or an apology to the complainant, an option Barbaro refused Barbaro became a hero and Ordinance no. VIII of 1881 was enacted to facilitate the execution of the councils duties. The most important provision was that no criminal proceedings can be instituted before any court against any council member for words uttered in council or written in a report to the council, except when the council itself allows it After an inquiry into the organization and workings of the Civil Establishments of Malta, Sir Penrose G. Julyan made a recommendation, which was brought into effect when an executive council was established by Letters Patent in 1881 to assist the governor in the administration of the government The executive council was to consist of: o Military officer in command of troops not being in the administration of the government o Chief Secretary to the Government o Crown Advocate

The governor had to consult the council when exercising his powers in all cases, except: o Cases of no importance or urgent cases, where the governor had to communicate the measures adopted to the council o Cases where in his judgement, if he consulted the council it would bring material prejudice to the public service Only the governor could submit questions to this council, and he could act in opposition to its advice, provided he reported his reasons to the Secretary of State, and members might require their advice to be taken down in the minutes This was a time of political unrest: o Formation of the anti-reformist party, named because of its opposition to reforms suggested by Sir Penrose G. Julyan, Francis W. Roswell and Patrick Joseph Keenan in the fields of administration, education and finance o Simpletons and imbeciles were deliberately elected to council, to bring it under contempt The latter was due to the fact that there were problems with the balance of power in the Council. Although the ability to vote was extended (registered voters went from 2,400 to 10,637) this did not ease the situation. Letters Patent in 1883 extended the right to vote to all male British subjects of 21 years or older, who paid rent for immovable property in Malta to the amount of at least 6 per annum or received a yearly income of at least the same amount from such property The property qualification was put forward instead of allowing people who could qualify for jury-service to vote, but it was criticized for leaving out professionals and other educated persons who paid no rent and derived no income from immovable property The qualifications for membership of council were also modified 1883 brought other reforms: the Secretary of State for the colonies noticed that the Executive Council was made up of a smaller number of chief officers of government than usual: as a result, in addition to ex officio members specified in Instructions of 1881, the governor could appoint other persons being public officers to be members of the executive council. The officers appointed were: o Auditor General o Director of Education o Collector of Customs The Earl of Derby (Secretary of State for the colonies) also addressed the protests against the use of official majority in domestic matters, and the calls for reform in the composition of the Council of Government and the procedure in matters of local interest There was a disproportion between official and unofficial members: it was rectified by arranging that not more than 8 official members and the President would attend on the same day The governor, or (in his absence) the vice-president, will not vote. However, when the unofficial members vote unanimously against the official members and votes are evenly divided, the decision of the unofficial members will be victorious on two conditions:

o The matter is of local interest only o The colony can cope with the increase in expenditure If the governor thinks that Imperial Interests of importance are involved, or the revenue cannot cope with the increased charge, he may: o Decide the question by opposing elected members with his casting vote, and reporting his actions and reasons for it to the Secretary of State o Suspend decision and consult the Secretary of state Elected members will not be overruled by official majority, but the Queens Representative will have the responsibility of acting and justifying his actions if he sees fit to refuse, delay or give effect to the elected members views Though this arrangement sought to remove the disproportion between unofficial and official members, for the wishes of the former to prevail, they had to be unanimous (all in favour) After the Keenan report, which wanted to replace Italian with English as the language of precedence in education, the language question arose. Dr Fortunato Mizzi was the champion of the anti-reformists, and their chief opponent was Sigismondo Savona, Director of Education Elections and resignations followed, reform was in the air and it was clear that the 1849 constitution was nearing its end This constitution was considered by Earl Grey, Secretary of State for the Colonies, to be an important experiment not because of the fact that there was a larger Maltese element in the council, but in the official majority, the kernel and essence of Crown Colony Government Its importance lies in the fact that it incorporated the principle of election, which represents an early advancement towards representative government Though New South Wales was granted an elected majority on its council in 1842, Malta was the first colony to witness elective representation in its constitution. However, this did not mean that Malta was the first to be granted representative government