Issue link: https://maltatoday.uberflip.com/i/1464183
IN my article, Circumventing the Constitution and Ordinary Law (MaltaToday 27 March 2022), I observed that the Prime Minister, in flagrant breach of the Constitution and of ordi- nary law, had, in 2020, assigned ministerial responsibility for the Wild Birds Regulation Unit to the Minister responsible for Gozo, rather than to the Minis- ter responsible for the environ- ment. In the recent assignment of ministerial business, the Prime Minister prefers to continue to defy the rule of law as though we are not already in a mess in the eyes of the internation- al community in this realm of Constitutional Law. By means of Government Notice No. 362 of 2022 published in The Mal- ta Government Gazette of 5 April 2022, the same mistake of 2020 has been repeated once again but, this time, it is further compounded by the President's approval of the unconstitution- ality and illegality. Not only so, but so far the President has not stopped this violation of the Constitution and of ordinary law from tak- ing place, more so that my 27 March 2022 MaltaToday article was publicly available black on white for all to consult. Did the President seek legal advice be- fore approving the assignment of ministerial duties once this matter was raised prior to the appointment of Robert Abela as Prime Minister and prior to cabinet formation? The Prime Minister might claim that in 2020 he was in good faith when he rode rough shot over the Constitution and ordinary law. But the second mistake of 2022 resents bad faith. The President can claim that he acted on the advice of the Prime Minister and there- fore he is exempt from any re- sponsibility. But where does this put him in terms of the oath of office he subscribed to three years ago? Had he not pledged to 'preserve, protect and defend the Constitution of Malta'? Essentially, the Environment Protection Act states that the competent minister responsible for the Wild Birds Regulation Unit is the minister responsible for the environment. The Con- servation of Wild Bird Regula- tions establish this Unit under the Environment Protection Act and define the competent minister as the environment minister. This is all clearly written down in the law. This notwithstanding, in the latest assignment of ministerial port- folios, the Prime Minister – and now the President as well – consider themselves above the Constitution and ordinary law when they completely ignore and bypass the Constitution and ordinary law to carry out an unconstitutional and illegal act. The Constitution states that: 'Nothing in this article shall empower the President to con- fer on any Minister authori- ty to exercise any power or to discharge any duty that is con- ferred or imposed by this Con- stitution or any other law on any person or authority other than that Minister'. But this is what the President actually did: he assigned ministerial respon- sibility for the Unit to the Gozo minister when ordinary law (the Environment Protection Act and the Conservation of Wild Bird Regulations) provide for the Unit's allocation to the en- vironment minister. This is a very serious breach of the Constitution that should not go unnoticed and unfixed. But then, who cares about the Constitution? We are living in Malta after all! Though their act, the Presi- dent and Prime Minister have re-written the Constitution without the need of amending it. The President and the Prime Minster are supreme and the Constitution is subservient to their whims and caprice. Why do we need than a constitution- al convention other than to rati- fy this new interpretation of the Constitution? The President and the Prime Minister, in a democracy that respects the rule of law, cannot use their executive office to act contrary to the express wording and spirit of the Constitution and of ordinary law. For they have not only placed themselves above the Constitution but also above Parliament. This is also embarrassing for Malta more so that rule of law issues are con- stantly and closely monitored by several international institu- tions such as by the Council of Europe, European Union Com- mission and Parliament, Trans- parency International, GRECO, Venice Commission, FATF, and credit rating institutions. Malta is now in the ridiculous situation, thanks to the Presi- dent and Prime Minister, that whilst direction and control over the Unit is assigned to the environment minister by and under an Act of Parliament, the President and Prime Minister are depriving the environment minister from exercising lawful duties in terms of ordinary law. Thanks to the President and Prime Minister the environ- ment minister is no longer an- swerable to Parliament for the Unit that has been moved out of the environment ministerial portfolio and the Unit is now outside the total control of Par- liament, outside the operation of the law. It has now been as- signed an extra-legal status un- der a minister – the Gozo Min- ister – whom Parliament does not recognise for the purpose. And what are the President, the Prime Minister and the Cab- inet of Ministers all doing to rec- tify this unconstitutionality and illegality? Nothing at all! maltatoday | SUNDAY • 10 APRIL 2022 OPINION 13 The rule of law is dead Kevin Aquilina is Professor of Law at the Faculty of Laws University of Malta Kevin Aquillina