Issue link: https://maltatoday.uberflip.com/i/1533839
3 maltatoday | SUNDAY • 30 MARCH 2025 ANALYSIS down the Constitution in bite-size pieces Kuwait from Iraqi occupation, Malta could have allowed its military facilities to be used by foreign forces. However, the second Gulf War in 2003 initiated by the US and Britain against Iraq did not have a UN mandate and thus Malta could have never allowed the use of its mili- tary facilities by foreign forces. But in 2011, Malta would not have fallen foul of the Constitution had it allowed its military facilities to be used by foreign forc- es deployed to enforce an UN-sanctioned no-fly zone over Libya during the uprising against Muammar Gaddafi. This section has not been updated to re- flect Malta's membership of the EU, which technically means that military facilities cannot be used by foreign forces participat- ing in an EU-sanctioned mission that has no UN mandate. THREAT TO SOVEREIGNTY What the Constitution says: (ii) whenever there exists a threat to the sovereignty, independence, neutrality, uni- ty or territorial integrity of the Republic of Malta; Explainer: Malta may allow foreign forces to use its military facilities even if it perceives a threat to its sovereignty and neutrality. This means the government does not have to wait for an aggression to materialise before it can allow foreign forces to use military fa- cilities on the islands. The interpretation of what constitutes a threat is left open. MILITARY SHIP VISITS What the Constitution says: (c) except as aforesaid, no other facilities in Malta will be allowed to be used in such manner or extent as will amount to the pres- ence in Malta of a concentration of foreign forces; Explainer: This section makes it clear that it is not just military facilities that cannot be used by foreign forces bar exceptional cases outlined above, but also civilian facilities. However, this prohibition is qualified with the words "concentration of foreign forc- es". This means that military ship visits in Maltese ports or refuelling stops at the airport by military aircraft are permissible as long as they do not constitute a "con- centration". The Constitution does not specify the period over which a concentration is to be calculated, creating ambiguity. However, in 1988, in the case opened by Żgħażagħ għall-Ambjent against the government over the visit of the British aircraft carri- er Ark Royal and two supporting military vessels, the Constitutional Court was not of the belief that "the presence of ships in- vited by the government, for a short period of time determined beforehand, could be considered as a concentration of military forces in breach of the Constitution". FOREIGN SOLDIERS What the Constitution says: (d) except as aforesaid, no foreign mili- tary personnel will be allowed on Maltese territory, other than military personnel performing, or assisting in the performance of, civil works or activities, and other than a reasonable number of military technical personnel assisting in the defence of the Re- public of Malta; Explainer: To be more specific the Constitution al- so speaks of "foreign military personnel". While these are not allowed on Maltese territory, two important exemptions are included. In the first instance, foreign sol- diers can set foot in Malta if they are per- forming civil duties. This means that mil- itary personnel on visiting warships can come aground for entertainment purposes and to perform voluntary work. But this section also allows in "reasonable number" the presence of foreign military personnel assisting in the defence of Mal- ta. This exception was used to justify the presence of a handful of Italian military ad- visors in Malta as part of a long-standing arrangement between the two countries. Eventually, the Italian Military Mission was dissolved when Malta joined the EU. SHIPYARDS What the Constitution says: (e) the shipyards of the Republic of Malta will be used for civil commercial purposes, but may also be used, within reasonable limits of time and quantity, for the repair of military vessels which have been put in a state of non-combat or for the construction of vessels; and in accordance with the prin- ciples of non-alignment the said shipyards will be denied to the military vessels of the two superpowers. Explainer: This section does not stop the repair or the construction of military ships in Mal- ta's shipyards – as long as they are in a state of non-combat – but qualifies this by saying this must be done "within rea- sonable limits of time and quantity". Once again, the proviso imposing limitations is left up to interpretation. However, where this section gets some- what complicated is in the second half where it disallows the use of the shipyards to the military vessels of "the two super- powers". This partly is obsolete because it has been superseded by historic events. That reference was crafted in the Cold War era that saw the US and the now-de- funct Soviet Union as the world's two dominant military forces. In a multi-polar world that now counts the US, Russia and China as superpowers, and with others as- piring to reach that status, this section of the Constitution can cause problems of interpretation. In 2001, the Attorney General had ad- vised in favour of allowing the shipyards to be used for maintenance works on the USS La Salle, an American military vessel, in the context of the Cold War coming to an end in 1989, after the fall of the Berlin Wall. At the time, the controversial case was brought before the Constitutional Court by Alternattiva Demokratika, which had asked the court to interpret the Constitu- tion. The AG had agreed with AD's stance but lawyers Toni Abela and Charmaine Zammit had independently requested to join proceedings, since they argued that the Constitution was going to be changed through court decree and not a two-thirds majority vote in parliament. Eventually, the court never got to pro- nounce itself on the issue of "two super- powers". Maintenance works on the La Salle were carried out and it also visited again in 2003 for extensive refit works. In 2012, the USS Mount Whitney became the second US military vessel to undergo repairs at the Palumbo Shipyard. Mean- while, no attempt has ever been made to reword this section of the Constitution. The USS La Salle at the Malta shipyards in 2003 (Photo: US Navy)