Gozo’s Constitutional Status
Gozo’s constitutional status is somewhat nebulous as the Constitution of Malta of 1964, today’s supreme law, affirms in its sub-Article 1(2) that “The territories of Malta consist of those territories comprised in Malta immediately before the appointed day……………”.
According to Article 2 of the Malta Independence Order 1964, “the appointed day …….. shall be 21st September 1964.”
Then according to “The Malta (Constitution) Order in Council, 1961”, that is the last Constitution before the appointed day, Malta was interpreted to mean “the Island of Malta and its dependencies, including the territorial waters thereof”.
However, no dependency of Malta has ever been statutorily defined or declared to be so. So is Gozo de jure a dependecy of Malta? Or is Gozo an equal amongst equals?
Moreover, as if to offuscate and complicate further the constitutional status of Gozo, Article 124 of the Constitution of 1964 dealing with Interpretation says that “Malta” means the Island of Malta, the Island of Gozo and the other islands of the Maltese Archipelago, including the territorial waters thereof.”
These questions were referred to a top Constitutional illuminary, the Hon Chief Justice Emeritus Prof John J Cremona, in a letter sent to him on the 29th May 2010.
The letter and the answer thereto were:
Dear Hon Chief Justice Emeritus
I am at present doing some research on Gozo’s share in Malta’s Constitutional and poitical developments in the nineteenth and twentieth centuries. I am also researching how these developments affected Gozo. I intend later on to publish a book on my findings.
As you are not only a Constitutional illuminary and historian but you are yourself also an important part of these developments, I should like respectfully to refer to you, also a proud Gozitan, some points on which I need some clarifications.
In the Declaration of Rights of the Inhabitants of the Islands of Malta and Gozo of the 15th June 1802 it is stated that “We the Members of the Congress of the Islands of Malta and Gozo and their dependencies, by the free suffrage of the people…………….”.
In spite of the fact that this Declaration refers to the “Members of the Congress of the Islands of Malta and Gozo”, Gozo does not feature as a component of the General Congress and no representative of the island seems to be a signatory to the Declaration.
Throughout the Declaration, Malta and Gozo are given equal status and are always referred to as “these Islands”.
However, in all colonial Constitutional and other official documents, the British Government never made any reference to Gozo and included the island as one of the Dependencies of the Island of Malta.
Indeed, in all these Constitutions, the Colony was always referred to as “Our Island of Malta and its Dependencies”.
Then, however, Article 1 of the Independence Constitution stipulated that “the territories of Malta consist of those territories comprised in Malta immediately before the appointed day, including the territorial waters thereof.”
This same definition was retained in the Republican Constitution.
However, in both the Independence and the Republican Constitution “unless the context otherwise requires”, the interpretation of Malta is given as “the island of Malta, the Island of Gozo and the other islands of the Maltese Archipelago, including the territorial waters thereof” (Article 124(1) of the Republican Constitution).
I should like respectfully to ask you
• if there is a known reason why Gozo under the British rule was relegated to a Depencency of Malta,
• if, according to Article 1 of the Independence and the Republican Constitutions, Gozo is “comprised in Malta” as one of its Dependencies as it had Constitutionally been “immediately before the appointed day”, or else
• if Malta, Gozo and the other islands of the archilpelago have equal Constitutional status as per the Interpretation given in Article 124(1) of the Constitution.
I would greatly appreciate if you could kindly enlighten me on these three points.
Yours respectfully
Frank J Psaila
The above advice carries a lot of weight and coming from the author of the draft Independence Constitution is very hard to challenge.
However, the advice of a Constitutional lawyer had been sought before and some doubts were raised about the Constitutional status of dependency of Gozo.
He based his argument on the Montevideo Convention on the Rights and Duties of States of 1933. Article One of that Conventions reads, “The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.”
In the Constitution of Malta, the only qualification that satisfies the sine qua non need of possession of a defined territory is found in Article 1(2) that defines the territories of Malta. Moreover, Article 3(1) of The Malta Constitution 1961 to which Article 1(2) refers, says that “Malta means the Island of Malta and its dependencies…..”. That article is still in vigore today on the strength of Article 1(2) of the present Constitution.
As regards Article 124(1) in the present Constitution, “unless the context otherwise requires, Malta means.the Island of Malta, the Island of Gozo and the other islands of the Maltese Archipelago………” is not a sine qua non qualification of a constitution.
So by this reasoning Gozo is still a dependency of Malta.
However, there is another enigma. In November 1987 I came across Warrant No. 988 issued by the Minister for Development of Tertiary Sector under the Industrial Property (Protection) Ordinance whereby the Minister granted unto the said patentees the exclusive right to use the said invention and derive all profits therefrom, within the Island of Malta and its Dependencies, up to and until the lapse of fortenn years from 23rd July 1986.
I communicated telephonically with the office of the Minister for Development of Tertairy Sector and pointed out that the Warrants as being issued could mean that the exclusive right being granted could not be applicable to Gozo as Gozo is not a dependency of Malta.
The Ministry took immediate action on the point I raised.
After a few weeks the Minister started to grant “to patentees the exclusive right to use the said invention and derive all profits therefrom, within the Republic of Malta, up to and until the lapse of….…” and has never again referred to Gozo as a dependency.
The Government had thereby formally accepted that Gozo is not a dependency of Malta.
Constitutional Amendments
The lack of absolute clarity in the Constitution as regards the Constitutional status of Gozo could offuscate to the layman the fact, if that is correct, that Gozo is an island with the same status of the island of Malta.
In this respect a few Constitutional Amendments could give a clearer and better understanding of Gozo’s Constitutional status.
Recommended Amendments
Unless the context otherwise requires, in the text of the Constitution, for “Malta” there should be substituted “The Republic”.
For the title of Chapter 1 of the Constitution, “The Republic of Malta” there should be substituted the title “The Republic of Malta and Gozo”.
The said Article 1(2) could be much clearer and more to the point if it were “The territories of the Republic of Malta and Gozo consist of the island of Malta, the island of Gozo, and the other islands of the Republic including the territorial waters thereof.”
This amendment would obviate the need of an interpretation of “Malta” found in Article 124(1) and insert instead an interpretation of “The Republic” that would read: ”The Republic means the Island of Malta, the Island of Gozo and the other islands of the archipelago of the Republic including the territorial waters thereof, or of such territories and waters as Parliament may from time to time by law determine.”