R
44393
No. 209.
PUBLIC RECORD OFFICE
༴།།།།- །
Reference :-
C.O. {
885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
:
SIR,
(MALTA.)
LAW OFFICERS to COLONIAL OFFICE.
[Interpretation of Letters Patent of June 3, 1903.]
Royal Courts of Justice,
December 9, 1903.
We were honoured with your commands, signified to us by Mr. Bertram Cox, in his letter of the 28th November last, stating that he was directed by you to submit to us, for our consideration, the circumstances in regard to a question which had arisen as to the interpretation of the Letters Patent of the 3rd of June last which were issued to make further provision for the administration of the Government of Malta. That at the first election of the Elected Members of the Council of Government under the Letters Patent eight of the Elected Members of the former Council were elected without opposition, and, in addressing to the Governor a protest against the reduction in the number of the Elected Members which had been effected by the Letters Patent, presented their resignations without taking the oath prescribed in Clause 33. That new writs were then issued, in accordance with the second paragraph of Clause 32, but that the result of the subsequent elections was the same as that of the previous ones, and that the former Elected Members had, in fact, announced their intention of continuing the series of "protestation elections."
That there was reason to believe, however, that they might abandon these tactics in favour of a policy of abstention from nomination for election in the absence of other candidates, and that you thought that it was desirable to ascertain the exact position of the Government in such circumstances.
That he was to transmit to us the despatch which had been received from the Governor enclosing copies of Minutes by the 'Crown Advocate and the Lieutenant- Governor on this subject.
That he was to request us to take these matters into our consideration and to advise you:—
(1) Whether, in the event of no nomination being received at elections held during the existence of the present Council of Government, fresh vacancies would be created within the meaning of the second paragraph of Clause 32 of the Letters Patent, so as to necessitate the issue of new writs at an early date.
(2) Whether, in the event of no nominations being received at the first elections held after a dissolution of the Council of Government, the position would be that the Council would not be constituted as prescribed by Clause 9 of the Letters Patent, and therefore would not be legally constituted as contended by the Crown Advocate in the sixth paragraph of his Minute of the 5th of November.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
That, in our opinion, it would not be incumbent upon the Governor to issue new writs under the circumstances stated in this question. Having issued writs upon the occurrence of the vacancy the Governor has discharged the duty cast upon him by Clause 32 of the Letters Patent, and as under Clause 46 the Council is not disqualified for the transaction of business by reason of vacancies no difficulty can arise in carrying on the business of the Council.
The
(2) We are unable to agree with the view taken by the Crown Advocate on this point. The failure by one or more constituencies to return members after a dissolution does not, in our opinion, prevent the Council from being legally constituted. view taken by the Crown Advocate would seem to involve the proposition that if any one constituency either fails to return a member altogether or returns as member a person who is legally disqualified, the Council cannot be constituted. This view appears to us so unreasonable that we are unable to accept it. We think that Article 46 applies in the case supposed, There is a vacancy within the meaning of that clause not merely if a member who has been elected resigns or dies, but also if,
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Page 300Page 301
44393
R
No. 209.
SIR,
(MALTA.)
LAW OFFICERS to COLONIAL OFFICE.
-
[Interpretation of Letters Patent of June 3, 1903.]
Royal Courts of Justice,
December 9, 1903.
WE were honoured with your commands, signified to us by Mr. Bertram Cox, in his letter of the 28th November last, stating that he was directed by you to submit to us, for our consideration, the circumstances in regard to a question which had arisen as to the interpretation of the Letters Patent of the 3rd of June last which were. issued to make further provision for the administration of the Government of Malta. That at the first election of the Elected Members of the Council of Government under the Letters Patent eight of the Elected Members of the former Council were elected without opposition, and, in addressing to the Governor a protest against the reduction in the number of the Elected Members which had been effected by the Letters Patent, presented their resignations without taking the oath prescribed in Clause 33. That new writs were then issued, in accordance with the second paragraph of Clause 32, but that the result of the subsequent elections was the same as that of the previous ones, and that the former Elected Members had, in fact, announced their intention of continuing the series of "protestation elections."
That there was reason to believe, however, that they might abandon these tactics in favour of a policy of abstention from nomination for election in the absence of other candidates, and that you thought that it was desirable to ascertain the exact position of the Government in such circumstances.
That he was to transmit to us the despatch which had been received from the Governor enclosing copies of Minutes by the 'Crown Advocate and the Lieutenant- Governor on this subject.
That he was to request us to take these matters into our consideration and to advise you:-
(1) Whether, in the event of no nomination being received at elections held during the existence of the present Council of Government, fresh vacancies would be created within the meaning of the second paragraph of Clause 32 of the Letters Patent, so as to necessitate the issue of new writs at an early date.
(2) Whether, in the event of no nominations being received at the first elections held after a dissolution of the Council of Government, the position would be that the Council would not be constituted as prescribed by Clause 9 of the Letters Patent, and therefore would not be legally constituted as contended by the Crown Advocate in the sixth paragraph of his Minute of the 5th of November.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
That, in our opinion, it would not be incumbent upon the Governor to issue new writs under the circumstances stated in this question. Having issued writs upon the occurrence of the vacancy the Governor has discharged the duty cast upon him by Clause 32 of the Letters Patent, and as under Clause 46 the Council is not disqualified for the transaction of business by reason of vacancies no difficulty can arise in carrying on the business of the Council.
(2) We are unable to agree with the view taken by the Crown Advocate on this point. The failure by one or more constituencies to return members after a dissolution does not, in our opinion, prevent the Council from being legally constituted.
The view taken by the Crown Advocate would seem to involve the proposition that if any one constituency either fails to return a member altogether or returns as member a person who is legally disqualified, the Council cannot be constituted. This view appears to us so unreasonable that we are unable to accept it. We think that Article 46 applies in the case supposed. There is a vacancy within the meaning of that clause not merely if a member who has been elected resigns or dies, but also if,
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