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  • Writer's pictureAndré Delicata

No, it’s not ok for MPs to hold posts in the executive

The legislative makes the laws; the executive implements them; and the judiciary oversees them. As with all other democracies, in Malta there are checks and balances between these three pillars. This separation of powers is in effect so that no part of government becomes limitless and totalitarian in such a way as to harm democracy. This separation of powers, along with a system of checks and balances and the rule of law, ensures that, before the law, everyone is treated equally. It also ensures that everyone is bestowed the protection ordained by law.

This is what is on a Malta government website that gives a synopsis of how the Maltese state functions.

So why the principal secretary Mario Cutajar felt it necessary and incumbent on himself to ask Prof Ian Refalo for a legal opinion as to whether it’s ok for government backbenchers to hold jobs in the executive when this constitutes a clear breach of the doctrine of separation of powers is perplexing.

Prof Ian Refalo concluded that there is no problem with government backbenchers holding executive positions since such appointments did not break any laws.

Prof Ian Refalo’s arguments were efficiently and effectively put paid to by Prof Kevin Aquilina, who pointed out that even if something is legal, it does not mean that it conforms to the spirit and intent of the constitution.

“Laws which do not respect good government are in themselves unconstitutional.” Consequently, he [Prof Aquilina] insisted that the appointment of MPs to carry out executive functions such as chairing corporate bodies or acting as government advisors through administrative practice was “inconsistent” with the Constitution.

Also, these appointments are in effect ‘positions of trust”, notwithstanding the Public Service Commission’s and the Ombudsman’s criticism of this unconstitutional practice as well as that of several top legal experts as well as the Venice Commission.

Since the practice of such appointments goes against the principles of good governance and the spirit and intent of the constitution, they corrupt the Rule of Law.

And Rule of Law is a fundamental requisite for any country that values liberal democracy and a mandatory requisite for membership in the EU.



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