According to new Social Solidarity Minister Michael Farrugia, President-elect Marie-Louise Coleiro Preca will be acting as a consultant to the ministry, although she argued that the word “facilitator” was a more apt descriptor of her role.

Terminology aside, both agreed on one crucial point: that it will ultimately still be up to the government to implement policies, even though the President may be more actively involved.

Yesterday morning, Dr Farrugia held his last news conference as Parliamentary Secretary for Planning and Administrative Simplification – a portfolio which is passing on to Michael Falzon today – when he was asked by The Malta Independent about Ms Coleiro Preca’s future involvement on issues which are becoming his political responsibilities.

Dr Farrugia, who described his colleague as the social soul of the country, said that she would be serving as a consultant to the ministry, but the government would be retaining its administrative and executive functions. Ms Coleiro Preca, he said, would be overseeing what the government does and providing her input, but it will still be up to the government to make decisions and carry out the necessary work.

In a subsequent news conference, in which she described ongoing initiatives by the Housing Authority, Ms Coleiro Preca was asked to elaborate on Dr Farrugia’s comments, and said that her future role would best be described as that of a facilitator, as it involved raising awareness on issues of national importance and bringing all stakeholders together.

“The President is the head of state, and the state is ultimately its people... we can help bring together all stakeholders on issues of national importance,” she explained.

Ms Coleiro Preca said that she understood that there would be a degree of scepticism on what her role would entail, but emphasised that there would be a clear separation of powers.

She explained that she would use the Presidency’s profile to bring all people together, and that she would do her utmost to seek consensus. Ultimately, however, it would be up to the government and parliament to develop and approve actual policies.

Ms Coleiro Preca emphasised that as President, she could not assume an executive role – and neither did she have any desire to do so. However, she pointed out, the Presidency provided a degree of moral authority which could be utilised to highlight certain issues far more effectively than she could as a minister.

Foermer Judge warns of ‘conflict of interest’

However, in reply to questions put by this paper, former European Court of Human Rights Judge Giovanni Bonello, who headed the Justice Reform Commission, said that, whilst the Constitution is quite silent as to what the full extent of the functions of the President is, it could possibly seem that mixing Presidential and government duties is tantamount to a conflict of interest.

“In the absence of express provisions in the Constitution to regulate the Presidency, one has to fall back on various other tools of interpretation, like other provisions of the Constitution, constitutional conventions, precedent/tradition.

The only other article of the Constitution which throws light on what are the permissible functions of the President, is article 49. This provides expressly that when the offices of President  and of Acting President  are for any reason vacant, the Chief Justice automatically becomes the President of Malta, and assumes all of his/her functions. The Chief Justice is the default President of Malta.

This article of the Constitution, to my mind, leads one to believe that the Constitution bans the Presidency from assuming any functions which are incompatible with the functions of Chief Justice. There is a manifest conflict of interest between governance and judicial independence and impartiality. Can a Chief Justice be involved in the ordinary administration of governance? Certainly not. Can a Chief Justice have a governmental consultative role? I would rather answer ‘no’ as that consultative role may be the subject of future litigation, and blurs the fundamental distinction between the judiciary, on the one hand, and the executive and legislature, on the other. But, the compatibility of an executive consultative role with the role of the Presidency may be one of those grey areas which have to be faced and regulated in line with the underlying principles of the Constitution.”