Aborting a presidency: George Vella and his troubled conscience

President George Vella has on more than one occasion publicly drawn a red line beneath abortion when asked his views on the subject.

He has insisted that as president he will opt to resign his post rather than sign a law that introduces abortion. This predicament may very well come to be in the coming weeks.

Parliament reconvenes after the Christmas recess on 9 January and the amendment decriminalising abortion if a woman’s life or health is at risk will be debated at committee stage sometime after.

This is the stage when the finer details of the law will be discussed and any changes enacted, if at all. The Opposition is against the current Bill, insisting termination should only be contemplated if a woman’s life is in danger and not her health.

The Opposition’s stand is modelled on a proposal put forward by more than 80 academics from various fields and is supported by anti-abortion groups and the church.

READ ALSO: Abortion amendment heads to committee stage as parliament votes in favour

Prime Minister Robert Abela and Health Minister Chris Fearne have already hinted the government will put forward some changes to its proposal without compromising on the two key principles: protecting the woman’s life and health.

The changes have not yet been outlined, although one possibility is the introduction of a three-member board to take such decisions thus putting paid to the idea that a pro-choice doctor could single-handedly acquiesce to their patient’s demands.

The objectionable part of the proposed amendment – the health aspect – is unlikely to be touched though. Under the proposed changes, abortion will remain illegal and punishable by prison time but with two limited exceptions to safeguard doctors and women.

Whether the changes government will put forward at committee stage will be enough to placate Vella’s conscience still has to be seen. When asked about his position, the President insisted he will wait for the final wording of the law before making any decision.

In his Republic Day address, Vella broke presidential practice by briefly referring to the abortion debate and expressing hope that all concerns being raised will be addressed.

The day of reckoning is likely to happen in January unless the debate drags on. But irrespective of when parliament approves the abortion amendment – government has the numbers and support to get it through easily – the act will at some point reach Vella’s desk at San Anton for assent.

Three choices

Vella has three choices. He can put his conscience aside and simply sign on the act. How easy this choice will be, depends on the wording of the law. But given his dead set opposition to abortion, Vella will have to explain his deed to a confused citizenry if the health aspect remains an integral part of the law.

Vella can also adopt the escape strategy he used last year when parliament approved the introduction of pre-implantation genetic testing in IVF processes.

It was a known secret that Vella did not agree with PGT and already had qualms about IVF itself.

The President’s solution not to create a constitutional crisis was to go abroad on official business and have the PGT law signed by his stand-in, acting president Frank Bezzina, an academic.

Given Vella’s categorical statements on abortion it is unlikely he will go down this route but if he does it will dent the president’s credibility and open him to ridicule.

The third choice is refusing to sign on the act of parliament and resigning as a consequence. The President will have to juggle his constitutional duties, which make it clear that he has to sign any act of parliament ‘without delay’, with his conscience that precludes him from agreeing with abortion at all costs.

There is nothing in the Constitution that resolves this conundrum that Vella could eventually face. The president does not have the power to send a law back to parliament for reconsideration like the Italian president.

‘No substitution of Cabinet’s will with president’s own’

In his book, Il-Manwal tal-President (The President’s Manual), the only guide to interpreting the Constitution, former president Ugo Mifsud Bonnici argues the president cannot refrain from giving assent to an act of parliament because it goes against his principles or morality.

“If the president feels that his conscience does not allow him to assent, he should resign,” the non-binding guide suggests.

Mifsud Bonnici explains that the president should adhere to the advice given to him by Cabinet and “never substitute the Cabinet’s will with his own”.

Mifsud Bonnici says the Constitution makes it clear that despite the country’s executive function being vested in the president, it is the Cabinet that exercises “general direction and control of government and is collectively accountable to parliament”.

The president’s role, Mifsud Bonnici argues, is limited to making sure that at face value, the law before him has passed through the proper legislative process and any apparent anti-constitutionality must be determined by the law courts and not the president.

If George Vella follows the precepts laid out in this manual and his anti-abortion conviction is too important to put aside, his only route will be to resign.

This will create a constitutional crisis and a political problem for the government.

Enter Frank

The Constitution does not specifically make provisions for the resignation of a sitting president but Article 49 speaks of a temporary vacancy and its provisions could kick in until parliament appoints a new one.

Article 49 reads: “Whenever the office of President is temporarily vacant, and until a new President is appointed… those functions shall be performed by such person as the Prime Minister, after consultation with the Leader of the Opposition, may appoint or, if there is no person in Malta so appointed and able to perform those functions, by the Speaker of the House of Representatives.”

With the next president requiring a two-thirds parliamentary majority to be appointed, it is unlikely both sides of the House will reach a quick consensus if Vella steps down.

This means acting president Frank Bezzina will temporarily be appointed by the Prime Minister so as not to leave the post empty. In this way, the abortion amendment will be given the green light and become law.

Managing political fallout

The circumstances that would have led to Vella aborting his presidential term prematurely will be unprecedented and possibly lead to a discussion on the role of the president.

But it is not the constitutional issues at stake that will be of concern for the Labour government but the potential political fallout, especially among certain sections of its grass roots.

The Labour leader will have to convince supporters that Vella’s premature departure is regrettable but part of the inevitable cost to safeguard the lives and health of women. It will be a hard case to sell but one that Robert Abela has ample time to argue for.

What will complicate matters for Abela, and the Nationalist Party, is the possibility that the anti-abortion camp will mobilise to gather signatures for an abrogative referendum to be held on the amendment.

The timeframes for this are dictated at law and also depend on when the signatures start being collected. But it is not implausible for Malta to head for an abrogative referendum by the end of the year or the start of 2024.

This all remains in the realm of possibility and probability but until then, it is the more immediate parliamentary process and presidential actions that matter most.

Vella could start 2023 being an unwilling protagonist if he resigns.

READ ALSO: Why Malta’s timid abortion reform could take it the Irish way

What the Constitution says…

• On presidential assent: Article 72. (2) When a bill is presented to the President for assent, he shall without delay signify that he assents.
• On temporary vacancy: Article 49. Whenever the office of President is temporarily vacant, and until a new President is appointed, and whenever the holder of the office is absent from Malta or on vacation or is for any reason unable to perform the functions conferred upon him by this Constitution, those functions shall be performed by such person as the Prime Minister, after consultation with the Leader of the Opposition, may appoint or, if there is no person in Malta so appointed and able to perform those functions, by the Speaker of the House of Representatives.

What is the abortion amendment?

The amendment, which is a single clause, effectively introduces two exceptions to Malta’s strict anti-abortion law: the protection of a woman’s life and her health if this is in grave jeopardy. The amendment introduces a new clause in the Criminal Code without touching the rest of the law that criminalises abortion.

The controversy revolves primarily around the health aspect with critics arguing this opens the door wide open to abortion on demand. Some have even asked for ‘health’ to be qualified as physical ailment to rule out mental health problems as a reason for abortion.

Government has argued the amendment is needed to give doctors and their patients peace of mind in those circumstances where a termination of pregnancy is inevitable or needed to safeguard the woman’s life or health.