One of the fundamental tenets of the rule of law is the separation of powers between the executive, legislative and judiciary. Yet, because of our parliamentary system that we inherited from the British system, our executive and legislative are, of necessity, not entirely separated; indeed, in many respects, they dangerously overlap.
Being a parliamentary system, our executive holds office on the basis of the confidence (political support) of the parliamentary majority and can be removed from office by a parliamentary vote of no confidence. We also have a symbolic or ceremonial head of state with very limited powers.
One of the many questions to be answered in the process of designing or reforming our political institutions is, 'Should ministers be members of the legislative?' or, put another way, 'Should ministerial office be incompatible with membership in the legislative?'
Normally, our ministers are chosen from among the members of the legislative and then remain members of the legislative while in ministerial office. In other words, ministerial office and legislative membership are 'fused'. This clearly results from the provisions of Articles 80 and 81 of our Constitution, whereby one of the requisites for a ministerial office is that the holder thereof must be an elected member of the House of Representatives.
It is not uncommon practice, though, that the Prime Minister, in the event that a vacancy arises in the complement of members in the House due to, for example, the death, resignation or removal of an MP, fills such a vacancy by co-opting someone from outside the House. There may be various reasons for this, the most common being either a strategic move or to create an opportunity for having a so-called 'technocrat minister'.
Contrary to our system, in some countries, ministers are normally chosen from outside the legislative, or if members of the legislative are appointed to ministerial office, they must resign their legislative seats. In other words, ministerial office and legislative membership are 'separated'.
Our parliamentary system is based on a relationship of mutual trust and support (technically known as 'confidence') between the legislative and executive branches of government. The government is led by a prime minister, assisted by cabinet ministers, who hold office by virtue of the 'confidence' (on-going political support) of the party, coalition or bloc holding a majority of seats in the legislature.
It thus follows that the Cabinet combines executive and legislative leadership. It gives impetus to the legislative majority in making laws, but at the same time, it is responsible to the legislative majority for its executive functions. The Cabinet can lead, but only in the direction and to the degree that the parliamentary majority is willing to follow.
The main political dynamic in a parliamentary system is therefore not between different branches of government but between the governing party and the opposition. The governing party sets the policy agenda, controls the administration and takes initiative in legislation. The opposition seeks to hold the government to account, to ask awkward questions, to bring matters to public attention, to ensure that government proposals are properly debated and scrutinised, and perhaps to modify, influence, or sometimes delay them. At the next election, the people vote for a new parliament in which the party in power might change, such that the former leader of the opposition becomes the new prime minister.
Maltese political history shows that it is standard practice for ministers to be chosen from among the members of parliament (MPs). The Cabinet is therefore 'a committee of the legislative body selected to be the executive body'; it is an executive committee of the legislature. The prime minister chooses the ministers, but he can only choose them from a select group of senior MPs among the majority party.
If ministers are appointed from among the elected members of a legislature and remain within the legislature, this means that everyone holding ministerial office has been elected by the people and is directly accountable to the people. This has a certain democratic quality to it: the ministers are chosen (only) from among those whom the people have elected. They cannot, try as they might, remove themselves into a closed executive 'bubble'.
The power to appoint members of the legislative to ministerial offices gives the head of government leverage over the legislative. Supporters can be rewarded, and opponents and critics can be sidelined. This patronage power may weaken the legislative as a co-equal branch of government and weaken the separation of powers. This is more so since MPs holding ministerial office are expected, under the rules of collective ministerial responsibility, to always vote with the government.
On the other hand, ministers appointed from outside parliament who do not have the same sense of institutional loyalty to parliament and who have not been enculturated into the ways and habits of parliament are more likely to side with an executive leader against parliament and to be dismissive of the legislature's distinct roles and privileges.
If ours were a well-functioning parliamentary system, non-ministerial ('backbench') MPs who belong to the governing party should be a vital part of the system of checks and balances, playing a crucial role in criticising, improving and amending the government's legislative proposals once their votes, on which the government depends, cannot entirely be taken for granted.
Dr. Mark Said