The judicial proceedings instituted by the Prime Minister in his capacity of MP against the Commissioner for Land, the Land Registrar and the Gaffarenas raises constitutional issues.

Can Joseph Muscat detach his office of Prime Minister from that of MP? Can the Prime Minister, in his capacity of MP, sue a government department and a public officer falling under his ministerial portfolio?

Once the Prime Minister is individually responsible to Parliament for the Department of Land and Land Registry which both fall under his ministerial portfolio, how can he defend in Parliament these departments when it is he who is suing them?

What will happen to the court proceedings, in the eventuality that they are not concluded before Parliament is dissolved and, at that stage, Muscat loses his MP status? For the Attorney General to act in the public interest and independent of government, would it not have made more sense for him to be plaintiff with the Prime Minister sued as a co-defendant?

In terms of the doctrine of the indivisibility of government, the government, although formed of a number of ministries and departments, is one and indivisible. It is not allowed for one component of government to seek judicial redress against another outside Cabinet.

The statement that the government is one, united and indivisible, gives expression to the principle of collective and individual ministerial responsibility. As Judith-Anne Mackenzie held: “The Crown [in the United Kingdom] being one, it cannot speak with different voices.”

Lord Diplock, when affirming theprinciple of the inviolability of theCrown, stated:

“Where, as in the instant case we are concerned with the legal nature of the exercise of executive powers of government, I believe some of the more Athanasian-like features of the debate in your Lordships’ House could have been eliminated if instead of speaking of ‘the Crown’ we were to speak of ‘the government’ – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments.

“It is through them that the executive powers of Her Majesty’s government in the United Kingdom are exercised, sometimes in the more important administrative matters in Her Majesty’s name, but most often under their own official designation.

The Prime Minister cannot, as an MP, institute a court case against those same departments which fall under his ministerial portfolio

“Executive acts of government that are done by any of them are acts done by ‘the Crown’ in the fictional sense in which that expression is now used in English public law.”

Once ministers are allocated government business on an individual capacity, government business has to be transacted at Cabinet level where all conflicts, disputes and divergences are resolved.

The doctrine of collective and individual ministerial responsibility does not allow ministers or other components of government falling under a ministerial portfolio to engage themselves in power struggles between themselves outside the Cabinet system.

If two or more ministers, parliamentary secretaries or heads of government departments entertain discordances, those divergences have in the first instance to be resolved amongst themselves.

If this dispute mechanism fails, the matter should be referred to the Prime Minister who may escalate the matter at Cabinet level, depending on the seriousness and gravity of the issue.

Martin Smith and David Richardswrite that:

“The core issue here is that the constitutional convention that acts as one of the cornerstones of the British system of government is the principle of indivisibility and mutual dependence between the key actors – prime minister, ministers and civil servants.

“This was established by two key constitutional documents, the 1918 Report of the Machinery of Government: Ministry of Reconstruction ... and the Carltona Doctrine (1943).

“In terms of the former, Lord Haldane’s report affirmed a principle already established by Northcote-Trevelyan that the relationship between ministers, including the prime minister and officials should be intrinsically linked: the government of the country [cannot] be carried out without the aid of an efficient body of permanent officers, occupying a position duly subordinate to that of the ministers who are directly responsible to the Crown and to Parliament, yet possessing sufficient independence, character, ability and experience to be able to advise, assist, and to some extent, influence those who are from time to time set over them.”

Due to the principle of unity and indivisibility of the Crown in the United Kingdom, it is not possible for one part of the Crown to indemnify another part. This principle is also supported by case law.

Lawrence G. Baxter refers to a South African case where it was decided that one department of the Crown could not sue another department of the Crown: “...when the Natal Provincial Administration attempted to sue the South African Railways, the former’s claim was dismissed on exception on the basis that, as the province was a department of the Crown, it could not sue another department [viz the Railways], since this would involve the Crown suing itself.”

Of the same view is Stu Woolman:

“In Natal Provincial Administration v South African Railways and Harbours, the Natal Provincial Administration attempted to sue the South African Railway. The railway was, at the time, another department within the ‘Crown’.

“The Province’s claim was dismissed by the court because, given that both the province and the railway were departments of the Crown, the suit would be tantamount to the Crown suing itself.

“Years later – in Government of the Republic of South Africa v Government of KwaZulu – the Appellate Division confirmed the ‘general principle of our law that one organ of the State cannot sue another organ of the State’.”

Jens Bartelson opines that: “Sovereignty cannot be divided without ceasing to be sovereignty proper, and precisely this quality of being indivisible distinguishes sovereign authority from other forces of political power.

“Dividing sovereignty between two or more authorities within a given state would therefore be to dissolve that state into parts. The indivisibility of sovereignty is thus a necessary condition of the unity of the state.”

Constitutionally there is no place for a split personality: Muscat cannot, as an MP, institute a court case against those same departments which fall under his ministerial portfolio and, at the same time, as minister responsible for those departments defend in the House of Representatives those same public officers he is suing in court.

The indivisibility of government dictates that Muscat cannot at one instance be Dr Jekyll and at another Mr Hyde.

Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.