?The 1964 Constitution Is In Fact A Replica Of The 1961 Constitution With Sovereignty Added On.? To What Extent Is This Statement Correct? Essay, Research Paper
The Independence Constitution of Malta of 1964 established Malta as a liberal parliamentary democracy. It safeguarded the fundamental human rights of citizens, and promised a separation between the executive, judicial and legislative powers, with regular elections founded on universal suffrage. Malta still had the three organs of the State even before independence. The present constitution was developed through constitutional history and its evolution.
The constitutions of Malta fell under three main categories. These were:
a) those over which the British possessed total power;
b) the intermediate genres of constitutions (1921-1947), where we had self-government (the 1961 constitution was very similar to these constitutions);
c) the Independence Constitution of 1964.
On the 27th July 1960 the Secretary of State for the Colonies declared to the House of Commons the wish of Her Majesty?s Government to reinstate representative government in Malta and declare that it was now time to work out a new constitution where elections could be held as soon as it was established. He also notified the House of the appointment of a Constitutional Commission, under the chairmanship of Sir Hilary Blood, to devise thorough constitutional schemes after consultation with representatives of the Maltese people and local interests. The Commissioners presented their report on the 5th day of December 1960. The report was published on the 8th day of March 1961. That same day, the Secretary of State declared to the House of Commons that Her Majesty?s Government had taken a decision. The Commissioner?s constitutional recommendations to be the basis for the subsequent Malta constitution were to be granted.
The 1961 Constitution was also known as the Blood constitution. It was enclosed in the Malta (Constitution) Order in Council 1961 and it was completed on the 24th day of October of that same year. This constitution is found within the publication of the Supplement of the Government Gazette of the 31st October 1961 (No. 11,346). The statement that the Order makes provision for a new constitution where Malta is given self-government is found on the final page of the Order in Council.
The 1961 constitution provided the backbone for our Independence Constitution. A date was provided to guarantee this legal continuity. An indispensable characteristic of this constitution is the substitution of the diarchic system, which was no longer practicable, by system of only one Government, the Government of Malta, with full legislative and executive powers.
At that time Malta was still a colony and responsibility for defence and external affairs were referred to Her Majesty?s Government. There was a clear indication that the road towards independence continued and now was at a highly developed stage. The status of independence was nearing. It is imperative to recognise that this constitution established most of the features of the 1964 Constitution. The British recognised Malta as a State (Section 2: 1961 Constitution) ? ?The State of Malta?.
Another important characteristic of this constitution is an innovative introduction of a chapter covering the safeguarding of Fundamental Rights and Freedoms of the Individual which can be located in Articles 5-17 of the 1961 Constitution. This is fairly significant because Fundamental Human Rights are a protection for the individual from the State. In the 1961 Constitution, Fundamental Human Rights and Freedoms are found in Chapter 4. The protection of freedom of movement was introduced only in the 1964 constitution. The declaration of rights of the inhabitants of the island of Malta and Gozo dated 15th June 1802 gives a collective declaration of rights.
The 1961 Constitution gave birth to what is recognised as Parliament in the 1964 Independence Constitution. The Cabinet had the general direction and management of the Government of Malta. It consisted of the Prime Minister. The Prime Minister alone might summon it and he presided over it. Not more than 7 other ministers were members of the Legislative Assembly and they were collectively responsible to it. This was one of the attempts to restate some of the more important British Constitutional Conventions in the constitution. In the exercise of his powers, the Governor was to act on the advice of the Cabinet, except where he was directed to act in his discretion or on the recommendation or advice of a person other than the Cabinet.
Three elections of the promulgation of the 1961 Constitution existed and this is shown in Article 45 of the 1961 Constitution. This constitution included the presence of a Cabinet for the first time in Malta. The legislature was unicameral. The Legislative Assembly?s normal life span was of four years. It consisted of 50 members and they were elected by universal suffrage from ten electoral divisions on the system of proportional representation by the single transferable vote.
The 1961 Constitution constructed a firm foundation for a future achievement of independence. When in 1964 Malta did in fact become independent, owing to the fact that the Government chose to avoid breaking all ties with the United Kingdom, we had legal continuity. As a result, the legislation of our Parliament remained functional. To a certain extent the same situation existed as regards to the legislation by the British Parliament for Malta.
The Malta Independence Order itself developed into the subject of an entrenchment. In article 50 of the Order, it is declared that this evolved into an extension to the 1961 Constitution even in the sense of an amendment. Even though we acquired independence we achieved quite a lot of continuity. One of them is the monarchy pre -1964 and prior 1964.
The Malta Independence Order 1964 was subject to the Malta Independence Act of that same year and it is a document which holds the chief regulations which govern the constitution of a State. This document is supreme over each and every other document and all legislation is subject to it. Throughout our constitutional history we have acquired our own constitution, and to a certain extent, the Independence Constitution is made up of certain principles that arose for the first time in previous constitutions. It can be said that the Independence Constitution has evolved from the constitution which preceded it. But we must not ignore the fact that changes have taken place in this process of evolution.
The statement that the 1964 constitution is in fact a replica of the 1961 constitution with sovereignty added might be criticised by saying that some factors differ between the two constitutions. The statement is fairly correct and this is proven above. The 1964 constitution is not merely what can be defined as an improvement. It is more like another stepping-stone in constitutional history being the final step in the formerly mentioned. In fact, even though it may seem that some provisions were altered from the 1961 constitution to the 1964 constitution, some of those provisions remained unchanged until the amendments of the 1964 constitution were made.
Furthermore, it is evidently noticed that the 1964 constitution is created through the development of earlier constitutions. Therefore it is not only the 1961 constitution with sovereignty added to it. This endured a long and detailed process and that is how it has reached the end result.
J.J. Cremona – THE MALTESE CONSTITUTION AND
CONSTITUTIONAL HISTORY SINCE 1813
(Publishers Enterprises Group Ltd (PEG) ? 1994)
THE LAWS OF MALTA