Celebrating Misrepresentation

A party and a protest. Manifestations of victory and mourning collide in Valletta when one extreme of society calls upon its supporters to celebrate their enemies’ crushing defeat while the conservatives shed tears among hyperboles and exaggerations.

It is fantastic for all the same-sex couples who can finally accede to the institution of marriage. It is sad that this moment had to be sabotaged by extremists claiming to represent the LGBTQi community but who are more intent on exacting their revenge on the conservative elements of society by going overboard and pushing an inconsistent and unrepresentative law.

Same-sex couples deserved access to the institution.

The world is not divided between those who are in favour of same-sex marriages and those who are against.

There are also those who, while being in favour of the introduction of same-sex marriages, are pointing out the inadequacies of the legislation as proposed.

There are those who, while being in favour of the introduction of same-sex marriages, do not see any reason why the current regime should be watered down instead of added to.

There are those who, while being in favour of the introduction of same-sex marriages, are not represented either by the bible-toting conservatives or by the rabid reactionaries who misrepresent the LGBTQi communities’ real interests.

The noisy battle between extremist factions has clouded out logic and reason. When this happens, the mechanisms of representation are sabotaged and society is no better off. The squabble between “confessionals” and “pseudo-liberals” has deprived the nation of real representation. Empowering minorities does not mean replacing one hegemony with another, it means regulating while bearing in mind all interests and opting for balanced solutions. By turning what could have been a proper debate to introduce a just and equitable law into a battle of extremes the participants have sabotaged parliamentary representation – aided and abetted by short-sighted politicians wanting to jump on this or that bandwagon.

We may applaud the belated introduction of gay marriage but sadly this day will go down as a sad day for parliamentary representation. We are stuck in the middle between the jokers and the clowns. Society as a whole does not deserve this type of representatives.

 

The other extremists
Exclusive Invite – Victory celebration.

The Marriage Equality Bill and the label on the box

The Act to amend the Marriage Act (etc) is storming through parliament as it inevitably would given the repeat of the concomitant factors that allowed for a spate of progressive cum liberal laws in 2013. We have a Labour government elected with a huge margin and therefore with a comfortable majority in Parliament that is about to kick off a new season of legislative wonder. True to form the first bill on the table is an inexpensive one – no capital expenditure is involved – yet it is a huge investment in “street cred” capital when it comes to waving the progressive flag.

It’s the timing, stupid

Speculation at a purely pragmatic political level would have it that Muscat’s timing for this bill is justified by two main reasons. The first is precisely the idea that his government is seen to be the champion of liberal rights – the great reformer that has shot Malta to the top of the tables for civil liberties. In this case the “seen to be” is crucial. There is no capital cost and more importantly no political cost because the “Taghna Lkoll” wave is in full tsunami flow and even the most bigoted conservative within Muscat’s movement will right now sing his praises for whatever liberal achievement he is told has been achieved. Yes, this is definitely l-Aqwa Zmien and Muscat will be cashing his civil liberties cheque as often as he can – he has already done so before the Pana committee (what a wonderful distraction) at the EP.

Which brings me to the second reason for the timing. Debates on civil liberties in Malta tend to be rather controversial. Like most debates in Malta the tendency is to argue broadly without much attention to either fact or detail. The added value for Muscat’s government is that civil liberties debates tend to be a particularly sensitive issue for the party in opposition. Rushing the “debate” on civil liberties at a stage when the opposition is still in disarray gives an added value to the image of “Civil Liberties Champion” that Muscat tries to portray. It helps if the argument is reduced to black and white “for and against progress” levels without any nuance whatsoever. This is the time to expose the so-called “dinosaurs”and to purportedly portray the opposition in an ultra-conservative light. Antics and misinterpretations by the dinosaurs of the like of David Agius and Edwin Vassallo will be made to stick out like the ugly conservative warts that they are. The dinosaurs will provide the perfect platform on which to build the straw man wherein to bundle together all the critics of the bill whatever their reasons may be.

The Facts of the Matter

Which brings me to the content of the legislation itself. There are a few incontrovertible facts that need to be considered.

Fact One: All parties in parliament had committed to introducing equal marriage rights in their respective manifestos (the PD is committed to the manifesto of the PN).  A manifesto by a party is a manifesto for government. It is not a manifesto for opposition. What we deduce as a commitment to vote in parliament is tied to whether a party is in government (and therefore able to produce the law as envisaged in the manifesto) or whether it is in opposition (and therefore within the limits afforded by its minority in parliament how far it can influence a bill in order to reflect its manifesto). The Bill before the 17th legislature (before the parliament elected in June) is a bill drafted and proposed by the party in government and therefore embodies its conception of what equal marriage is. I will leave it to the PN to solve its own internal disagreements however I disagree with Simon Busuttil on one point. The PN (and PD) are not bound to blindly accept any law purporting to legislate on equal marriage proposed before parliament for the simple reason that the content might not reflect their concept and drafting of a potential equal marriage. That is how and why an opposition exists in Parliament. It is part of the checks and balances for the rule of law to properly function.

Fact Two: The title of the Bill in question is “An Act to amend the Marriage Act and various other laws in connection with the introduction of marriage equality and to provide for other matters dealing with it or ancillary thereto“. Let us be clear. The purpose of the act is clearly the introduction of marriage equality. Translated into layman’s terms it is an act that is intended to ensure that the institute of marriage that has hitherto been an institute exclusive to heterosexual couples is made accessible to same-sex couples. That is clearly what the label says on the box. That is what this act should be doing. Nothing more nothing less. In other jurisdictions, such as that of England and Wales (we cannot say UK since Scot and Northern Irish law are regulated separately on this issue), the solution was simple. Very simple. Under the “Marriage (Same Sex Couples) Act 2013, article 1(1) stated concisely and without any complications: “Marriage of same sex couples is lawful”.

Fact Three: Here’s a little known fact. When you read through the current provisions of the Marriage Act and the Civil Code combined you will notice a very interesting anomaly. Nowhere in the law is marriage between same-sex couples prohibited. Madness, I hear you say, why all the fuss? Well it’s not that straightforward. True, nowhere in the restrictions to marriage section is there an outright prohibition of persons of the same sex getting married. The restrictions include age, infirmity and degrees of affinity (articles 3,4 and 5 respectively) but do not, surprisingly include any specific prohibition of same-sex marriage. What has stopped a gay or lesbian couple from turning up at the registry and asking to get married then? The answer is twofold – the first is custom (consuetudine) because until now it has been presumed that society regulates marriage as a union between persons of opposite sex. The second is the more formal problem of nomenclature because even though most of the provisions already refer to spouses or “persons to be married” without being gender specific you do encounter articles such as 15(2) of Cap 255 that refer to the Registrar (or officiating officer) declaring the married persons to be “man and wife”. That, and the myriad of forms that need to be adapted to be able to accommodate same-sex couples registering their marriage, are the main obstacles to same-sex marriage to date.

Rushed Cats and Blind Offspring

So now to the Bill. We all agree that the intention is to introduce the possibility of same-sex marriage. It’s even better with all parties involved on board. All parties agree that same-sex marriage should be a possibility under Maltese law. How do we go about introducing that? The solution in other jurisdictions, as I already referred earlier, was a glaringly obvious and simple solution deserving of Occam’s Razor application of the year. In layman’s terms what is done is simply (yes simply) to add to what already exists. The England and Wales option was to declare clearly that “Marriage of same-sex couples is lawful”. Angela Merkel’s “Schabowski moment” led to a change in German law which will now state the following: „Die Ehe wird von zwei Personen verschiedenen oder gleichen Geschlechts auf Lebenszeit geschlossen.“ ( “Marriage is concluded by two persons of different or same sex for life.”). Again, simplicity is in order – to an already extant regime of marriage (between persons of different sex) is added a parallel (and equal) regime (between persons of the same sex).

That is in essence what the introduction of Same-Sex Marriage entails. Nothing less. Nothing more.Sure certain provisions of the law would require an add-on for interpretative purposes in addition to the existing provisions in order to allow their interpretation in the case of same-sex couples. It is not necessary to change these clauses into a more neutral term. What would be done is to add an interpretative section or clause (whatever the case may be) that applies in the case of the newly added parallel regime of same-sex couples. Likewise, where for some natural reason, certain marriage-related clauses cannot apply in the case of same-sex couples (as has been ably argued by my colleague Dr. Justin Borg Barthet) this would be clearly stated in the law: for example the problematics surrounding the grounds of impotence or consummation in the area of nullity of marriage could be solved by either exempting same-sex couples from their application or by qualifying their application in such circumstances.

Any law purporting to do that should (and probably would) have the support of the whole of parliament. Doesn’t Bill no.1 of the 17th Legislature do that then? Well it says that it does in its title but it goes on to do far more than that. This is where the problems start.

Same, same but different

Bill no. 1 has one major problem that pervades the whole exercise. It is in fact an exercise in declaring everybody SIMILAR and in denying the existence of DIFFERENCES by paring down as many of our major codes as possible to the LOWEST COMMON DENOMINATOR. The confusion in the drafters’ head lies primarily in their conception, or rather misconception, of equality. Equal rights you see, does not mean that everybody is the same but rather means that everybody – no matter how different – is to be treated equally before the law. This is the age-old struggle of feminism – a justified struggle that recognises that even though men and women are different (and accepting that difference) it does not mean that they should not have equal rights. This normative distinction is hard to explain in normal circumstances. What it means is that for example when it comes to salary the law ensures equality by saying that both men and women should be paid equally. Given the same job, under the same conditions, it is illegal for a man to be paid more than a woman. In order to guarantee this equality the law RECOGNIZES THE DIFFERENCE. You have a MAN, you have a WOMAN and you have a law stating that the WOMAN can not be paid less than the MAN because she is not a MAN.

Helena Dalli’s Bill tries to do something different. To continue using the example given, in order to get equal pay it tries to redefine men and women. No more men, no more women. Just persons. The wonderful thing is that if it were really a case for legislation for equal pay then this solution wouldwork perfectly. All persons deserve equal pay. Simple. This is not equal pay though. This is the institution of marriage. Remember and bear this in mind. The declared intention is to introduce same-sex marriage with all the consequences NOT to alter the current institution. The nationalist party “conservatives” got the wrong end of the stick in their criticism of the bill – they fell into the ploy of the progressives who would label them conservative dinosaurs.

The real problem of the bill is that it is a rash job that ignores all rules of legal interpretation. It opts for the more convoluted option of combing through major laws and in each instance reducing to the lowest common denominator any definition. The agenda is clear – ride the momentum and push through changes of nomenclature for the sake of winning while the stakes are high. It is not, as explained earlier, a necessary exercise. A parallel, well thought out regime for same-sex marriages would have given same-sex couples an equal foothold in the institution without whittling away from an institution that has withstood the test of time.

The honourable fight for equality has been hijacked by an extremist faction intent on pushing the limits. For a long time, the governments of this island have lent more than an ear to the bishops and archbishops when regulating civil liberties. The tide has turned and it is now the turn of the Rainbow Church to have the ear of the government. The path that has been taken is a dangerous one. The misconception (and I am not sure it is an error, more a wilful construction) of the workings of Equality lead to definitions that open the floodgates for legal lacunae.

The bill will inevitably pass through parliament as it is. Muscat wants a show of force and mistakenly interprets this as an easy victory of liberal forces while shaming the PN further for having allowed its conservatives to bleat once again. In actual fact though there is little justice and equity in a bill that is bulldozering through parliament beyond debate using the brute force and euphoria of an electoral victory. The MGRM and other lobbies purring away while dismissing any constructive criticism with their straw man argument are unable to conceive the damage to their own cause that is being wrought by this kind of legislation. Level-headed members of the public, many of whom have absolutely no bone to pick with the introduction of Same-Sex Marriages will now be more wary of any proposals from the quarter of these latter-day extremists.

Right now it is tough to speak out and try to criticise objectively because the inquisition is out en masse. Ironically for a lobby that so despises labels and labelling they seem to be quick to throw a label or two in the direction of whoever dare criticises their bulldozing project. The rule of law is in no better place when dialogue and consultation are replaced by imposition. This law will pass through parliament but it is no victory for democracy or for representation. Sadly, expect more of the same for now.

 

 

 

 

 

The Coalition Conundrum

History was made. Marlene Farrugia, elected on a PN ticket for reasons we shall delve into later, will, once this session of Parliament commences, become the first member of a third party to sit in a parliamentary session from the start. The constitutional repercussions of this matter are still unfolding and require careful analysis. I hasten to add at the start that the analysis goes above the person and candidate but looks rather at the wider picture – the possible implications of what just happened and the conclusions that can be drawn.

Let us take a quick look at what happened.

Getting into Parliament

On the 28th of April this year, the PD and PN announced what both sides referred to as a ‘coalition agreement’. The coalition between the two parties would be known as Forza Nazzjonali, however for electoral purposes the PD agreed to contest the election under the PN banner and list. PD candidates would be identified as tal-orangjo on the ballot sheet. Crucially on a political level it was immediately clear that the PD was retaining a form of autonomy within the ‘coalition’ – the orange party kept the right to choose which candidates to field on which district, it made it clear from the start that it would be working with the PN (with not within) to present one electoral programme. The parties also declared that each candidate would remain under the responsibility of the respective party.

Was this clear at the time? I reacted with the post Coalitions in the time of cholera. I was clear from the start – this was not really a coalition, at least not in the pure sense of the word. As I already stated in that post, the main purpose of this ‘coalition’ was to get the necessary numbers to vote corruption out of government. The legal constraints posed by article 52 of the constitution only allowed for a workaround that would give a sporting chance to a group of parties to be elected with a pre-electoral arrangement in place. To be clear, had the parties chosen to run on their separate lists they very well risked not triggering article 52(1)(ii) thus leaving them without the proportional compensation. That was not their main concern though – their main concern was pooling all their votes to count for the much needed majority they were hoping to achieve.

Given the circumstances the workaround was a brilliant move. PN and PD would run under one party list. For the election any votes each party would get would contribute to that list. Could it have been done better? Maybe. With hindsight a third ‘mega-party’ could have been registered with candidates from the two parties pooled within this mega-party. Still one list, still two parties in one. This was a snap-election though and practicality trumped aesthetics. This is also the official reason given why AD dropped out of the anti-corruption coalition.

There are a few matters to bear in mind at this juncture:

(1) The how and why of the ‘coalition’ was openly declared before the election – this was no secret negotiation. This is important because when it comes to political loyalty and responsibility what the parties did next once the election was over should have come as no surprise to anyone. It should not have surprised the hardcore PN member who cried ‘foul’ when they interpreted the PD success as a PN loss. Not only should it not have come as a surprise but they should have been content with the result since the Forza Nazzjonali theme was what everybody had rallied behind before the election. It should not have surprised the Labour party either. They had capitalised on the idea of ‘A Coalition of Confusion’ and suddenly were u-turning their spin and claiming that the PD was never elected to parliament. That spin is understandable, it is not in Labour’s interests to see a ‘coalition’ work as much as it is to the distaste of PN hardliners.

(2) The autonomy of the PD within the PN list was clear. Persons who were voting for Marlene Farrugia and her team were voting to get a PD candidate in parliament while ensuring that their number one choice is not wasted. One did not preclude the other. In fact, it worked. Here is how J’accuse was suggesting to vote before the election (The change we need and how to vote it in):

On June 3rd my number 1 vote will go for the PD candidate in my district. I chose the PD candidate because they are our Trojan horse to bringing about this change. By accepting the difficult conditions of a coalition with terms dictated by the current electoral laws they were prepared to sacrifice the party for the good of the country.  I will continue on the nationalist and alternattiva candidates. 

PD was prepared to drop the logo and drop their individual list. It was a small price to pay to contribute to a possible victory against corruption. In the end corruption still won but it does not change the rules of the game.

In Parliament

So once the result was known and once it was clear that Marlene Farrugia had been elected from the 10th district, the Labour Party decided to play the usual games which have long been in the PLPN style.  We had a protest before the Electoral Commission and then before the Constitutional Court. For all intents and purposes this was a stillborn case. Any interpretation of the rules drafted to safeguard the interests of the two big parties could not have been otherwise. The infamous provisos to article 52(1) are supposedly written into the Constitution to ensure some form of governability. Labour was hoping to trigger 52(1)(ii) by claiming that more than two parties had been elected to parliament.

You see the trouble with the article 52 provisos is that they ‘reason’ in terms of political parties. Before the PL and PN played around with the constitution to suit their needs and continue to undermine our representative democracy, political parties had no mention in the constitution. It did not need to mention them. Just take a look at article 80 that deals with the appointment of the Prime Minister. You would be forgiven if you assumed that our Constitution says that the leader of the party with more votes becomes Prime Minister (or something of that sort). Instead the Constitution states that “the President shall appoint as Prime Minister the member of the House of Representatives who, in his judgment, is best able to command the support of a majority of the members of that House”. See that? Majority of the members of that House. They could be 67 individual independent MPs and a potential PM would have to meet each and every one of them after an election and convince a majority of them to support him to form a government.

PLPN did away with these complications. With the proviso articles they also made damn sure it would be darn difficult for any third party to convince people to ‘waste’ their vote and get them into parliament. Which is why when the PD and PN sat at that table discussing the coalition there was only one way to go: form one party list under one banner and logo.

But. And here is the groundbreaking moment the Labour lawyers missed (or didn’t but what the heck), the rules on getting into parliament stop just there… getting into parliament. Once you are in parliament you are no longer obliged to stick to your party. One reason that happens is precisely because our constitution views parliament as a house of elected representatives not as a house of party representatives. We have all seen members of parliament switch allegiance or leave their party half way through a session of parliament. Marlene Farrugia and Giovanna Debono sat as independents in the last parliament. AD briefly had two MPs when they switched from being Labour MPs. The nationalist party once formed a government when one member of another party switched allegiance on the first day of parliament.

So. To end this post (others will follow), the rules applying to how many parties are elected to parliament stop applying once the election is over. That is what just happened. As per agreement for the Forza Nazzjonali declared back on the 28th April, Marlene Farrugia is free to be a PD MP as from day one of the Parliament. Elected on a PN ticket as a workaround for electoral purposes she is now able to sit in parliament in representation of her party. She can still fall under the opposition whip though this would be the first time I believe that this happens with a second party in opposition.

There was no betrayal, no secret deal that was suddenly uncovered. The PN and PD may have lost the election but they still managed to break important constitutional ground. If anything this success exposes the inconsistencies of a system that for too long has nurtured the race to mediocrity between two outdated behemoths. What we do with this newly gained knowledge remains to be seen.

The change we need and how to vote it in

 

I am not a nationalist

I am not a nationalist. The very idea of being a partisan card-carrying member of a party nauseates me and I feel insulted whenever I am told by anyone that I am a “nationalist”. This blog, created in 2005 has always been a strong promoter of constitutional change. Whenever I have written, whether on J’accuse or The Sunday Times or the Malta Independent on Sunday, I have taken this philosophy with me: it has come dangerously close to a creed. The analysis is simple really – our constitutional structure has been hijacked by a two-party system, it no longer serves the people who should be the ultimate depositories of sovereign power but it serves as a structure that enables to well-oiled grease machines that serve a “career” system entrenched in a not too fine system of networks. My belief: that system needs to change.

To change that system, to really change that system, we need a blanket reform – as we say in Maltese “bl-gheruq u x-xniexel”. That change means bringing down the whole palace including the two behemoths that have striven to set it all up. Yes, a real commitment for change by any of the two main parties would be a sort of hara-kiri in many ways. A party proposing this kind of real change would consciously be subscribing to its demise while preparing to start over in the new system with new rules. That is why it is difficult to trust any one of the two parties promising change – and this in a the sanitised world of the hypothetical, not counting the contexts and realities within which we vote every time we are called to the polls.

The biggest challenge the sovereign people have had every election, particularly since deciding on European Union membership has been whether to adhere to the Gattopardian motto (If we want everything to change then everything must remain the same) as represented by the status quo or whether to push the main parties off the edge and provoke a constitutional shift for the future. The people have not been sufficiently convinced to let go of old habits. The card carrying partisans have always won the day. The race to the bottom was allowed to happen. That is where we stand today.

Corruption, Maladministration, Bad governance

I am not independent. I don’t think anyone can really be independent – whatever that word means in political discourse of today. The notion of “independent” in local discourse falls part of the cobweb infested partisan way of thinking that for a few years managed to create the myth of “super partes” – persons who were supposedly allowed to play and comment in the political arena without having their motives questioned. The whole point of accusing people of claiming to be independent today rises out of some confused attempt at trying to identify which of the two parties they are trying to back. The level of political discourse is such that people are unable to participate in discussions based on clear cut values. Add to that the zero-sum nature of our voting system and you can barely blame anyone for sticking their flag to a mast rather than arguing the nuances of policies with which they may agree or disagree.

This election has very high stakes though. Coming as it does in the age of post-truth, it is becoming much more difficult to decipher on the ground yet when one takes a step back and looks at the wider picture one finds a perfect opportunity to trigger off the much needed change that I spoke about earlier. The system is shaking at its foundations. If you want to follow a partisan narrative you will end up comparing and justifying different levels of corruption. You will still end up discussing the social and economic future of our nation in very shaky terms unless of course you are on the side of the believers of Newspeak. Marie Briguglio’s brilliant analysis of the steroid-driven economy really drove the message home insofar as this particular point is concerned. No party is really thinking about the long term sustainable future of the country – just look at transport and think of the difference between promising what people want and what the country needs. The parties’ electoral manifesto is in both cases a dangerous mix of promising the earth to everyone and everything.

Which is why this election you have to ignore their manifestos. Yes. You read that right. Ignore the manifestos. The manifestos are just the Wizard’s Big Curtain behind which, for the most part, lie small parties with small ideas. At least most of their ideas for the nation are small – meanwhile the candidates will be vying for the greasy pole: a place in parliament, a parliamentary secretariat, a chairmanship, a ministry…  If any of these manifestos were to be implemented within the current institutional framework then we will have failed. I say we as a country because whenever we allow whatever party it is to operate within a system that guarantees absolute power to the party in government with a hold on all other institutions then we fail. The signs are more evident now because of Muscat’s team’s gargantuan effort at exposing them to everyone.

Up your manifestos

Yes. Ignore those manifestos with tunnels to Gozo, slashed taxes, trains, racecourses, freebies, jeebies and heebies. The manifestos are a useless waste of paper this time round. The ONLY promise that counts is the one regarding change. Which brings me back to the original point. I make it not as a nationalist, an independent or as one who voted AD for the last few elections. I make it as a person who believes that we might already be too late to bring about this change but that it is still worth one massive try. I also make it as an expat of thirteen years, with a comfortable salary and great job who needs ask nothing of my country (and who never needed ask anything of any party) if that counts for anything in your appreciation. I make it with a genuine interest in getting a better future for the country I was born in, the one I love to love and hate.

Change. It is all written into the much maligned coalition/non-coalition agreement/non-agreement between PN and PD. It is the one promise to which I am attaching my hopes in this election. It is the one promise which I will hold each and every member of a new government answerable for. Radical constitutional reform. It is hard to trust the nationalist party on this one. I know that because I have been there before. Once in power the temptation to retain the status quo will be strong as usual. As I said, commitment to real change means radical change both for party and for the country’s institutions. Which is why there will always be opposition from those used to the past ways of operation. Which is also why the struggle will not end on June 3rd.

THE JUNE THIRD REVOLUTION

On June 3rd the struggle begins. First, with a vote for the coalition promising change we will set the wheels in motion. Then it is the duty of each and every person who has stood up to be counted to bring about this change  to pressure the new government to start that wave of change. It has to start yesterday. No dragging of feet, no excuses. The political parties have been allowed to play Politics for too long with the wrong results. It is time for politics to return at the service of the people.

On June 3rd my number 1 vote will go for the PD candidate in my district. I chose the PD candidate because they are our Trojan horse to bringing about this change. By accepting the difficult conditions of a coalition with terms dictated by the current electoral laws they were prepared to sacrifice the party for the good of the country.  I will continue on the nationalist and alternattiva candidates. I have never in my life been convinced by the Labour party to give even a fraction  of my vote to them. I will surely not start this time round having seen the Labour party machine put in motion to defend the indefensible.

CLOSING

One final note. It has been 12 years of blogging but there are still people out there who think I write anonymously. So here goes. My name is Jacques Rene’ Zammit, I am a Gozitan lawyer specialised in European Union law and I work as a referendaire (which means I assist a judge to draft judgements) at the European Court of Justice in Luxembourg. I have been involved in politics for over 25 years, my first political “intervention” was a speech in the run up to the 1992 election. It was at a PN event at the Crystal Palace in Marsalforn and i spoke about the need of organisations in Gozo getting together to pull the same rope. At University I was a member of SDM during the time when a group of idealists in the organisation tried to cut off all ties from the Nationalist Party. That particular experiment was a partial failure – partisan ties are hard to break.

Among my credible adversaries at the time were Mike Briguglio and James Debono. I am glad to see that our generation produced free thinkers who believe in the country and believe in the future. I am honoured to be on the same wavelength as these two gentlemen and comforted by the idea that there are more of us out there – ready to stand up and be counted and constantly working for change.

This has been J’accuse telling you how I will vote on Saturday. I cannot sufficiently stress the importance that voters look at the country’s future before and above anything else. The future is not the cash in your wallet or the bills in your postbox, the future is the quality of your life, the social and the cultural, the possibility of living in a normal country where everyone is equal under the law, where we are all servants of the law so that we may be free. Good luck, we need it.

 

 

Pirates of the Mediterranean.

 

The #Maltafiles scandal has just broken. The journalistic network EIC (European Investigative Collaborations) combed through 150,000 documents leaked from Malta and concluded that Malta is a ‘pirate base’ for tax avoidance. Coming right after Panama Leaks had projected Malta into the wrong side of the limelight thanks to its having the only EU Minister with companies in Panama (and not doing anything about it), this new scandal threatens to deal a heavy blow to a crucial sector of the Maltese economy. As things stand we are definitely not in the best position to set up any form of defence.

Reputation is the key concept here. Blow after blow is being dealt to Malta’s reputation as an honest dealer on the international and European level. One lesson that many nations learnt from Panama Leaks was that in order to be able to survive in the cut-troath world of tax competitiveness it is crucial to know how to be on the right side of the fine line between tax avoidance and the abetting of illegality.

The International Dimension

Take New Zealand for example, the discovery of the use of their system of trusts by Maltese government figures led to the changing of laws in the country relating to trusts. Notwithstanding the immediate and timely reaction to shore up the damage, the ripples of the scandal are still having an effect on the NZ trust system to this day: the inquiry into the dealings by the Azerbaijan President’s daughter involve movement of moneys through New Zealand trusts.

In Panama, the founders of Mossack Fonseca – the law firm in the eye of the storm – were arrested and accused of having formed a criminal organisation that assisted persons in hiding funds of doubtful origin (read money laundering). They have only just been released on bail. Laws get changed, law firm partners get tried criminally and action is taken. All to protect a country’s reputation. That is because in the world of tax and investment competition reputation is crucial.

What happened in Malta? For over a year now the Prime Minister has stood by two of his closest operators: Keith Schembri and Konrad Mizzi notwithstanding the fact that they were two PEPs caught up in the Panama Papers scandal. The feeble excuse? Some sort of declaration on a hastily written paper makes it all seem – to the Prime Minister – A.O.K. Worse still, insofar as Mizzi is concerned we have the fake defrocking from his position as Energy Minister as some form of retribution for his ‘genuine error’. The hypocrisy behind this move was never more blatant than during Malta’s turn at the presidency of the EU with Mizzi turning up and chairing meetings of the EU Council of Energy Ministers.

No effort at all was made to preserve Malta’s reputation in this respect on the international scene. Joseph Muscat was quite prepared to defy everyone and everything and proceed with his headfast ways keeping both Schembri and Mizzi close to his chest while ignoring international calls that cried foul. At no instant did his particular magic formula for Malta’s economy – Muscatonomics – contemplate the huge damage being wrought by his actions and those of his entourage. The recent developments with regards to the operations of Pilatus Bank are only an aggravation of this situation. It can only get worse.

The European Dimension

The Best in Europe is what Joseph Muscat had promised. Has he delivered? There are different ways of looking at this. First there is the government spin that our economy has never been better. We have low unemployment and budget surplus flowing through our ears and noses. The ‘trickle down’ benefits for the citizen remain the famous ‘consumption bill cuts’ that earned Muscat his first ride in power. A different song is that sung by others who – as best put metaphorically by a colleague of mine – describe the situation as follows: The previous nationalist government had replaced an old car with a spanking new one and the labour government found it all set to go. What labour is doing is revving up the engine and wearing it down as fast as possible like there is no tomorrow.

Beyond the inevitable spin though there is a reputation to be upheld in the European Union too. Being the best in Europe also entails being the best in Europe by European standards and those standards are to be found in the rules of the club. It’s not about a blind adherence to the rules either, it is about understanding that the European Union is a sum of its parts and that every part of the Union can only benefit when they work together and for the same interest.

This idea is best enshrined in article 4(3) of the Treaty of the European Union:

“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”.

The principle of sincere cooperation underlies the operation of the EU as a group of states with common goals and common regulations. When boiled down to the essence it translates into “member states (and institutions) should not engage in activity that undermines the goals and effectiveness of the Union and its objectives”.

Which brings me to passports and the sale thereof. It may be ok for the government of Malta to lend lip service to the European Union as a project and as a concept. The damascene conversion of Malta’s PM from hater of all things EU to sudden prophet on the future of Europe might have become a taboo topic and yet it remains to be tested given how every action on the European stage by this government is tied to inherent contradictions and the sale of passports is the prime example.

When Malta’s Labour government decided to turn the sale of Maltese citizenship into a lucrative business it also did so with the full knowledge that the main attraction of such citizenship was that it included EU citizenship in a sort of 2 for 1 deal. The bulk of local criticism of the scheme was related to the type of purchasers who would be attracted but few chose to stress the European dimension of the problem. The low and inconsistent standards applied to the scheme and the readiness to accept anybody willing to pay were not only harming Malta but they were harming the European Union.

Did our PM care? Irrespectively of whether he was aware of the alleged massive operation of greasing of wheels when it came to the implementing of the scheme, Muscat showed an incredible nonchalance in dismissing this huge “up yours” to the European Union as one big bout of jealousy. What does that make Malta seem like in the eyes of its partners in Europe? What does it do to the reputation of the nation? Yes you guessed. We are the pirates of the Mediterranean, ready to sell our soul for a quick kill – and that kind of reputation sticks.

So when the focus suddenly shifts to a Financial Services industry and to how Malta has used a (cheap) competitive edge to attract investments here the onus of proof that Malta acts with malicious intent of the “I’m alright and f you jack” kind is much lower. Couple that with the fact that our regulatory system in this sphere has not exactly been improving over the years but rather has degenerated and you suddenly discover that one of the crucial sectors in our economy is under open fire from all sides.

This is not Luxembourg right after Luxleaks. This is not Ireland after getting rapped on the hand by the Commission for the way it deals with huge multinationals. This is passport selling Malta with a Panama Leaks associated heart of government that is now exposed with a set of files showing that its financial services system is being abused by persons of not too high a standard.

That is the difference really. On any other day, under any other government, an attack on the competitive edge of a particular sector can be weathered given the right diplomacy and the right legal action in the right quarters. Take our gaming industry – constantly subjected to a barrage of attacks by fellow EU members who want a piece of the cake. So long as we can show that our regulatory standards are high and that we operate within the limits of sincere cooperation then it as all part of a days work as members of the EU. There are forums were this battle can be taken.

This is not any other day or any other government. This is a scandal ridden government that has now got a long list of grievances which all boil down to the breakdown of governance. The strongest defence for maintaining a competitive regime is that it is done and maintained within a strong regulatory framework that allows for no nonsense. When France, Germany, Italy and more come knocking at your door asking questions as to how your financial services industry is full of huge holes allowing for money laundering operations the best platform for defence is not the deck of a pirate ship that is sinking fast.

The truth when they lie

The fog of war is thick. The battle lines of this campaign were drawn around the question of truth. There is no doubt that whatever Joseph Muscat had in mind when calling this election it was not really the supposed prosperous golden age that the country is passing through but rather the long list of failures in the field of governance (check out this site) that were not going away anywhere soon. The dangers of institutional breakdown remains the main motivator for this campaign: on the one hand you have a collective force, a coalition of sorts, whose campaign is built around getting a corrupt clique out of power as soon as possible, on the other hand it has become evident that the sole aim of the campaign (of the election itself) is to build a huge smokescreen around the issue of governance.

So the government of redacted contracts, hidden deals, selling of public land, and of structures to hide income in shady jurisdictions came up with an idyllic utopia storyline: The Best Time (L-aqwa zmien). Muscat is supposed to be some kind of mixture between Midas and Pericles and all the commoners of this world will enjoy the trickle down effect of the fabled Muscatonomics. The propaganda machine is well oiled and we now have learnt that the PL knew it would call an early election much before the most recent Panama Paper allegations. The groundwork of newspeak had been prepared with the main two “facts” to be thrown as a foundation for L-Aqwa Zmien being (1) record unemployment, (2) budget surplus. A slick machine that is well honed to reap the short-term benefits of the austerity policy while hiding real figures and projections under a huge carpet the size of GWU headquarters served the purpose. The implication: Par idejn Sodi? Look no further than Muscat.

This is one giant Potemkin village fashioned out of bubbles and risky deals in order to impress. Above all it is fashioned in order to distract. This blog had sussed out Muscat’s modus operandi from the beginning. He is a master in prestidigitation – using one hand to wrought a brilliant illusion while the other is busy at work behind everyone’s back. This election campaign is all about that. The whole front is a distraction from the truth. The truth is what he wants you to look away from. The truth is what his campaign will attack with vigour in order to attempt to prevent it coming out. Potemkine villages existed for Soviet Russia. They could work because in Soviet Russia the means of communication were under strict control.

This is not Soviet Malta. Yet. The danger signs are clear though. Only this morning we read that Jacob Borg of the Times has been summoned to court over a report regarding Pilatus Bank. Matthew Caruana Galizia of ICIJ fame was blocked from Facebook after being reported to the Zuckerberg company for having published documents related to the Panama Papers saga. The government that championed whistleblowers came down on the latest whistleblower that hit the headlines like a ton of bricks. I could go on but you get the idea.

The battle over the truth is getting vicious. It will bring out the worst of the worst and the irony of it all is that once this election is over we will only just have begun. The necessary reforms that must be put in place will require hard work and coordination as well as commitment. We are really risking the fine line between a modern liberal democracy and a third world country best described by the great Hitchens (in Love Poverty and War).

“Sooner or later, all talk among foreigners in Pyongyang turns to one imponderable subject. Do the locals really believe what they are told, and do they truly revere Fat Man and Little Boy? I have been a visiting writer in several authoritarian and totalitarian states, and usually the question answers itself. Someone in a café makes an offhand remark. A piece of ironic graffiti is scrawled in the men’s room. Some group at the university issues some improvised leaflet. The glacier begins to melt; a joke makes the rounds and the apparently immovable regime suddenly looks vulnerable and absurd. But it’s almost impossible to convey the extent to which North Korea just isn’t like that. South Koreans who met with long-lost family members after the June rapprochement were thunderstruck at the way their shabby and thin northern relatives extolled Fat Man and Little Boy. Of course, they had been handpicked, but they stuck to their line.

There’s a possible reason for the existence of this level of denial, which is backed up by an indescribable degree of surveillance and indoctrination. A North Korean citizen who decided that it was all a lie and a waste would have to face the fact that his life had been a lie and a waste also. The scenes of hysterical grief when Fat Man died were not all feigned; there might be a collective nervous breakdown if it was suddenly announced that the Great Leader had been a verbose and arrogant fraud. Picture, if you will, the abrupt deprogramming of more than 20 million Moonies or Jonestowners, who are suddenly informed that it was all a cruel joke and there’s no longer anybody to tell them what to do. There wouldn’t be enough Kool-Aid to go round. I often wondered how my guides kept straight faces.

The streetlights are turned out all over Pyongyang—which is the most favored city in the country—every night. And the most prominent building on the skyline, in a town committed to hysterical architectural excess, is the Ryugyong Hotel. It’s 105 floors high, and from a distance looks like a grotesquely enlarged version of the Transamerica Pyramid in San Francisco (or like a vast and cumbersome missile on a launchpad). The crane at its summit hasn’t moved in years; it’s a grandiose and incomplete ruin in the making. ‘Under construction,’ say the guides without a trace of irony. I suppose they just keep two sets of mental books and live with the contradiction for now.”

And now the PN

In the middle of all this there is a campaign that is still unfolding. I would add a little note on the PN and its reactions to some of the campaign issues. The imperative nature of voting this government out has overshadowed any criticism that might be directed to the outfit in opposition. Still, a few words of advice are not out of place and I will dare put a few here for the perusal of whoever might be interested in taking note:

1. On the issue of the www.simonbusuttil.com spoof site. Huge overreaction from the PN. There is nothing wrong with a spoof. Even during election time. The whole point of a spoof is to mock, satirise someone or something. If anything the reaction should be on a political level – more of a criticism – that the Labour Party has officially had to rely on spoof for its campaign rather than leave it to the satirists. Unfortunately satirists have had the wind taken from their sails since the achievements of this government (and I’m talking low levels) are beyond their ken. This government – from Panama to Velbert to Australia Hall satirises itself. Bottom line. The PN should get a grip and not make a big deal about this website. PL on the other hand is resorting to hopeless and desperate tactics in one big campaign whose only reason is to distort or hide the truth. The best repky by the PN would have been “sure it’s amusing, your little satire. We did not even need to create a spoof site… just go over to www.gov.mt … nothing shouts spoof more than our current cabinet and government”. Nuff said.

2. On the Broadcasting Authority. This is one of the authorities in our nation that has been completely neutralised by constant PLPN manipulation over the decades since 1964. Much fuss has been made over the decision to get David Thake and Norman Vella off air since they are candidates in an election and they should not have excessive airtime. Let’s face it the decision is ridiculous. Especially in this day and age when any candidate could simply open an online radio/podcast and transmit it. Why not prevent candidates from having blogs then? In any case though the PN here are only “victims” of their own underhand games that they were more than willing to play over the years. Besides, I am not sure whether silencing Thake and Vella is really a bad thing – in their case the Japanese proverb that the silent man is the best man to listen to really applies. Anyway, how many pensioners criticising the PN billboards could Thake really muster before going mad. Speaking of the Broadcasting Authority I have not seen any Forza Nazzjonali exponent lamenting the decision to leave out Alternattiva Demokratika from the debates, then again, hell has not frozen over yet.