The mandates to rule

The principles of governance are built upon the separation of powers and the social contract that forms the basis of the legitimacy of power. In a parliamentary democracy, although Parliament and the government are constitutionally separate, they are, unlike in the US, joined at the hip. In Malta we elect a government and Parliament together, yet in that one shot we are extending two different mandates, one to govern and one to legislate.

The party system, though it leaves very much to be desired, allows candidates to associate prior to election. The mandate they obtain is to legislate, while their affiliation to a party that gains a majority is a second implied mandate to vote a government into office, with their leader given a constitutional mandate by the President to form and lead a government.

It is extremely important to remain aware of this distinction. In the US model, the President, once elected, cannot be removed except upon impeachment by Congress. The government remains in office with the Vice President taking over as President, as was the case when President Nixon resigned to avoid impeachment proceedings. In Malta, if Parliament passes a vote of no confidence, the entire government falls, whether or not an election is held, as was the case recently in Italy.

MPs not only have a right, but a constitutional duty to be free to vote on legislation according to their conscience.

This in fact is a cornerstone of democracy, which engenders a separation of powers between the Legislative and Executive arms of government. Parliament, or a majority therein, should never become the rubber stamp of a government sitting in Parliament. Rubber stamping should not be mistaken for stability.

In the event of the same party being in government for a long period of time, it is even more incumbent upon and laudable of the party MPs outside the Cabinet, the backbenchers, to keep the government on its toes. This is democracy in practice.

Rubber stamping a Cabinet’s actions, inversely, risks degenerating into paying lip service to the principle of the separation of powers. An outspoken backbench should therefore not be seen as a threat to stability, or a cause for early elections, but as an opportunity for the Executive branch of government to pay more heed to the counsel of parliamentarians in healthy democratic fashion.

Parliamentarians have a mandate to legislate freely, and this despite the party whip procedures, and repercussions if a member disregards the party’s insistence that a vote is to go a particular way. That is party politics, and not Constitutional Law, which allows for such freedom.

However, in terms of the socio-political contract, parliamentarians do not have the legitimacy to claim that they have a moral right to vote against the government of their party in votes of confidence or money Bills, even if they may have just cause on other issues. This would constitute, in my opinion, an abuse of power, because they would be going beyond the second mandate given to them by the people.

For good governance to develop, one needs to have constructive criticism of the government by both sides of Parliament, and government responding well thereto. This by no means constitutes a crisis, but a healthy democracy.

If, on the other hand, a government does not respond well to constructive criticism by its own back bench, or involve it, or if the government back bench does not limit itself to its legislative role, and threatens votes of no confidence or the passing of money Bills, without which the government cannot proceed, then this would constitute bad governance, by the government or by the backbench respectively, and instability would ensue.

The development and healthy growth of our democracy therefore depends upon a double paradigm shift. The Executive, whatever party is in government, should allow freer voting, and maximise consultation with its back bench, in order to strengthen the rule by Parliament, as opposed to the rule by party, or partitocracy.

Parliamentarians on either side of the House, on the other hand, should jealously guard their legislative freedoms, as they do in the US, while not precipitating a collapse of the government of the day.

The writer is the author of a thesis on Constitutional Law.