Andrei continues his reasoned analysis of ACTA, concluding that though it is not evil it must be rejected anyway.

ACTA is not evil : It must be rejected anyway – Part II

In Part I, I described why ACTA is not the intrinsically evil entity that people think it is. In fact, it is a relatively boring and toothless trade agreement that does not place any additional burdens on countries beyond what most signatories already have in their own national legislations.

So, am I going to go and withdraw my signature from the petition to stop ACTA, and tell my MEPs that they are free to vote for it if they can trade that favor for, let’s say, better agricultural subsidy terms for Estonian farmers?
I won’t. While ACTA’s text is nowhere near scary enough to warrant the level of public opposition it has received, the existence of that opposition is in itself a reason to reject the treaty.

As I have said before, if the majority of a democratic society expresses its desire sufficiently unambiguously, then that desire must be implemented, even if it is counter to the prevailing ideology. Governments and legislation exist only because it is not feasible to seek a referendum on each policy decision. At this stage, it would actually be technologically possible, but the general population does not have the time to thoughtfully consider the implications of a matter and arrive at an informed opinion. This is replaced by politicians running on broad platforms, and the people choose the broad direction they feel most comfortable with, then delegate their decision power. But the decision power stems from the people, and if the people actually care about an issue strongly enough, then that overrides the opinions of politicians, and the existing laws of the land.

ACTA is a touchstone issue. The anti-ACTA protests are not the result of the text of ACTA itself, or its implications; they are the result of an attempt to impose outdated behavioral models on an evolved technological world. And while a small layer of specialists may be genuinely worried about things like region-free DVDs or burdens on service providers, the majority of the human force of protesters is worried about something else. Everyone who saw the Wikipedia blackout and called their senator – for them, SOPA/PIPA/ACTA was only the last straw. Their patience was worn down, and their anger slowly built up, by the fight between rights holders and filesharers.

The Internet allows digital content – music, video, text, software – to be copied near-infinitely, at very little incremental cost. This creates a conflict. Consumers would like all content to be available for free. Rights holders would like to receive full retail payment for each created copy. Over the last decade or so, a dynamic balance has been reached. Businesses generally do not use pirated software, and this is heavily enforced. Consumers will prefer to use legitimate software and acquire legitimate content, where it has been made convenient for them, and where the price reflects the fact that the incremental cost of creating and delivering a copy has fallen dramatically since the days of cassette tapes. They do this partially on moral grounds, and partially because they recognize the importance of supporting the content creator. But consumers remain very aware of two things.

1. The content creator and the rights holder are often different entities. Consumers part with their money far more easily when it goes directly to the content creator (who then covers the expenses of production and delivery out of their revenue, and keeps the profit) than when it goes to a rights holder, who distributes that revenue in opaque ways. Even if the content creator makes a lot of money, people still resent the middleman. There is no sympathy for rights holders.
2. People are aware that the filesharing alternative exists. Where cumbersome artificial copy-protection measures makelife difficult for legitimate customers, and prices are perceived as being too high, they will turn to torrenting.

The origin of SOPA/PIPA, and the perceived threat of ACTA, is that the rights holders are attempting to legislate away the advances of digital technology, and the de-facto capabilities of consumers. This is why the public opposes ACTA. And the public’s voice must be heard. In a democratic state, if the will of the people is as clear as it has been made with ACTA, governments must submit to it, even if it is contrary to the interests of the rights holders.

If the public feels that intellectual property should not be protected or enforced in the way envisioned by ACTA, that’s just too bad for the rights holders. The public must then deal with the possibility that content will no longer be created if rights cannot be enforced. Implications must not be hidden from the people, and their impact must not be softened. But the will of the people must be paramount.

Digital rights enforcement is broken, and is actively counter to both the will of the people and the technological reality. That is what the web demos are protesting, really. Yes, ACTA was the catalyst because its communication was grossly mishandled, but it does come down to the issue that modern technology allows for free content distribution, and the rights holders have mostly chosen to ignore the change in technology and attempt to enforce outdated business models through legislative means.

It’s the same as the War on Drugs in that sense; if everyone is smoking weed, it’s stupid to put people in jail for carrying a joint. If everyone is downloading, it’s stupid to put people in jail for downloading.

One of the most preposterous things is that the issue has been successfully resolved for a different medium (analog-media copying) and works today. There was a hidden tax on every blank cassette tape and VHS tape sold, and that money was divided amongst rights holders. Even before that, there was the radio fee distribution scheme – radio stations pay to broadcast music, as do public venues that play music through their in-house audio systems. The equivalent solution – long since proposed and already adopted by some EEC members and other countries – is to place a flat levy on Web access, as payment for the implied piracy. This produces far less revenue for rights holders than they would like, but it resolves the moral issue while protecting the rights of consumers.

There are compromises to be made in the fight against piracy. As for ACTA, it is an issue of democracy. Because the people have chosen to reject it, and made their opinions heard, the politicians must reject it as well.

My signature is still on the petition.

ACTA is not Evil: It should be rejected anyway (Andrei Tuch)

There has been plenty of noise on the Internet about ACTA, the treaty that includes provisions on regulating copyright infringement on the Internet. There is a lot of criticism, but most of it is emotional and confusing. A fellow Euroblogger, looking for clarification on the meaning of ACTA, contacted me and asked if I had actually read the full text.

I hadn’t. So I did.

A few disclaimers to begin: I Am Not A Lawyer. I am, however, interested in European affairs and technology politics; I have been asked to comment on politics before, by press and official organizations; and by occupation I am a technical writer and translator. Some people pay me to read complicated legal texts, understand what they mean, and recreate that meaning very accurately in a different language. Other people pay me to take complicated ideas and concepts, and explain them in simple, understandable ways. They keep paying me, so I guess I’m good at it. (If any lawyers are reading this and have substantial objections to my analysis, I’d love to talk to you in the comments!)

The text of ACTA that I am using is this one: http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verification.pdf. There are many versions and drafts of ACTA around. That one appears to be the final one that’s being signed. I will quote relevant bits of text, but in any case I encourage you to go and read the source. By the standards of international treaties, ACTA is very understandable and unambiguous.

Most of ACTA’s text is actually about counterfeit trademark goods – things like knock-off designer handbags and fake name-brand sneakers. I will disregard all of that, and just focus on things that have to do with the Internet. (None of the stuff about knock-off handbags and sneakers is objectionable, it’s all about seizing shipments and border controls.)

Got that? OK.

First, the good news:

ACTA does not supersede national legislation. It is an international treaty under the umbrella of the World Trade Organization. It is not a law of the land in the same way that SOPA/PIPA was in America. It has very specific language to this effect, in Article 3:

“This Agreement shall be without prejudice to provisions in a Party’s law governing the availability, acquisition, scope, and maintenance of intellectual property rights. […] This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under its laws and regulations. […] In implementing the provisions of this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties.”

In the text of ACTA, some paragraphs say “shall” and some say “may”. For the latter, the country gets to decide if those will be implemented in its own legislation. Each country is explicitly permitted to have exceptions in its own legislation, choosing not to make certain activities illegal. This is part of the opening paragraphs, the context for everything that follows. Also pay attention to the principle of proportionality. In America, where massive civil lawsuits result in disproportionate financial settlements, the principle of proportionality does not seem to be widely upheld. In Europe – and particularly in Estonia, where many have complained about overly lenient prison sentences for crimes such as rape and murder – a specific reference to proportionality is very soothing to individual Internet users.

ACTA does not turn individual pirates into criminals. Even if it is accepted as written and the country does not claim an exception under its own laws. There are two relevant sections here: Chapter II, Section 2 “Civil Enforcement” and Section 4 “Criminal Enforcement”. Under the latter, Article 23 says:

“Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.”

ACTA requires each country to criminalize companies such as Megaupload (which was making a profit directly out of copyright infringement) and the sort of counterfeit software shops that Estonia used to have in the late 90s-early 2000s, where people were actually selling CDs and DVDs of software – making money out of it. As written, ACTA’s criminal enforcement articles would not even apply to The Pirate Bay, which does not make money from copyright infringement (it takes donations and sells merchandise with its own logo, demonstrably only making enough money to cover its operational expenses – a non-profit organization, not operating on a commercial scale). These provisions certainly do not apply to individual downloaders, for whom no money ever changes hands while they torrent.

ACTA does not place unreasonable burdens on service providers. The American version, SOPA/PIPA, scared the likes of Google and Wikipedia because it would have made it possible for rights holders to force-close websites for something as small as a visitor posting a link to unlicensed media in a comment box, and because it would have forced ISPs – the companies that provide Internet connections to homes and offices – to actively hide websites, effectively censoring content. All of this would be done without any involvement by courts, and without any ability to challenge the rights holders’ claims. But in ACTA, there is specific language to prevent this. In Article 6:

“These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.”

And in Article 27:

“These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”

Again, ACTA leaves a lot of room for countries to individually decide what constitutes a barrier, an abuse and a fair process.

ACTA does not introduce limits that are not already in Estonian legislation, nor in any Western country’s legislation, I suspect. The Estonian government already released a statement saying nothing in Estonian law or practice would have to change because of ACTA. The test case for this is Estonia’s filesharing loophole: it is technically illegal (though rarely prosecuted) to upload unlicensed content, but if you’re only downloading a copy and not allowing anyone else to copy it off you, then you’re fine. From ACTA’s most draconian part, Article 27 paragraph 7b:

“to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.”

You will note that it says distribute, but not acquire. The loophole stands.

Now for the bad news. There are two parts of ACTA that can justifiably make the Internet public nervous.

The first is Article 27, which requires countries to have legislation against copyright offenses on the Internet. However, this is about circumvention – actively removing copy-protection from works, and does not cover using works with it already removed for personal purposes. (You can’t crack a game, but you can download and play a cracked one, if you set your torrent client’s upload speed limit to zero.) It is also about making circumvention measures available – but not using them. (Building a keygen or a cracked EXE file for a game is illegal; downloading that EXE and using it on your own computer is not.) This is where you have to do some soul-searching. Will the Internet really be destroyed if the people who create copy-protection workarounds are declared criminals? Remember that a) they already have been under most national legislations and ACTA does not introduce any new measures to find them, b) they are few and far between, and c) as a group they have stayed anonymous very effectively until now, and will probably stay anonymous if ACTA passes.

Article 27 also makes distributing that content illegal. You are liable for uploading content, including participating in BitTorrent file-sharing the way it is meant to work – not just receiving data, but sending it to others as well. But remember that this is merely illegal, not criminal; and that ACTA leaves room for countries to decide just how much they care about stopping you from doing it.

The other disturbing part of ACTA is in Chapter II, Section 2 “Civil Enforcement”, Article 9. Without quoting the full text (go and read it!), this introduces the rights holders’ favorite idea: that civil damages from copyright infringement should be measured in the retail cost of a single copy of the content, multiplied by the number of copies made. Or, for a single filesharer, the sum of the retail prices of all songs, movies, games etc. found on their computers. This obviously is to the benefit of the rights holders, letting them demand more money. It is also completely, self-evidently idiotic to anyone who has studied even the simplest, most basic level of economics, the elasticity of demand. Actually, it’s intuitively idiotic to anyone who has ever made a purchasing decision when they wanted two things and only had enough money for one.

When a type of product is available for free, and is easy to get, then people will get any item that seems even the least bit interesting. Digital content that you will end up not liking doesn’t even take up room in your closet, so there isn’t even an opportunity cost to stop you from getting it. And since downloading a file doesn’t mean someone else is deprived of the ability to use that file – perfect copies are created without damaging the original – there is no low-level moral argument against downloading, like there is against stealing an apple from a tree in your neighbor’s garden. But if you have to give up some of your money in exchange for digital content, then you will simply get a lot less of that content, because your money is limited, and there are a lot of things which you would like to have more than music or movies that aren’t very interesting to you.

The revenue that rights holders lose to digital piracy is not equivalent to the sum retail price of all existing pirated copies. They would never have sold that many copies. To claim otherwise is disingenuous on the part of the rights holders, and this is the main reason why normal people – not zealots who believe all information must necessarily be free – have no sympathy for the rights holders.

And normal people are the ones who matter. That is why ACTA – which is not evil, nowhere near as destructive as SOPA/PIPA, and in fact a boring trade agreement that does not change anything significant in any participating country’s legislation – must be rejected.

But this article is long enough already, so you’ll have to wait for Part II to read what I mean by that. (Sorry, Jacques, I know it was the second part you really wanted me to write today, but I got carried away!)

Mr. Martin Bugelli, Head of the European Commission Representation in Malta has kindly given his permission to reproduce this article that appears in today’s Times of Malta. Over the last few days I have been asked for my two cents on ACTA – I have politely refused to comment on the subject (thank you One News and MaltaToday for your interest) for the simple reason that I hate commenting on something that I do not know about. I have finally found time to start reading the text of ACTA – away from the pro- and anti- propaganda currently infesting the net. A little aside: do ignore our friendly PLPN’s posturing on the subject – the less said about them the better.

Back to ACTA. This subject merits our attention for many more reasons than simply “they want to destroy the internet”. The issue is one affecting international law and the very web that holds the global village together. It is about individual rights, corporate interests and who will best represent them. It is about the future of how the rules that bind us will effect us. On the other hand it is nothing new. International agreements have been signed for long before many of us were born. This time though we are armed with that all powerful weapon: information … and it is important to get it right. The interaction between civil society and its representatives is also evolving – we have a duty to work it out civilly and ensure that our prerogatives and freedoms are not abused of. So let’s start with Mr Bugelli’s article. Read it carefully and bear in mind that it is perforce a Commission perspective.

Needless to say that the opinions in the articles are Mr Bugelli’s and do not necessarily reflect J’accuse’s line. Later tonight I have been promised what I am sure will be an interesting perspective from a friend blogger in Estonia. Look out for that too (and if you have not subscribed for J’accuse updates in the mail remember that it is never too late). In the following text I have highlighted sections that I believe are crucial for further discussion.

(F)ACTA – the genuine article (Martin Bugelli)

Each year, we Europeans lose more than €8 billion through counterfeit goods sneaking into our markets, a figure which is steadfastly growing. Intellectual property is Europe’s raw material, the theft of which destroys jobs, harms competitiveness and stifles creativity and innovation.

On the other hand, European consumers should be protected from the potentially harmful effects of poor imitations and fake goods produced on a large scale by unscrupulous pirates of the high seas of trade. Unlike bona fide goods, the stuff supplied by these nefarious operations does not carry with it the responsibilities towards consumers, including the adherence to regulatory standards.

European adherence to the international Anti-Counterfeiting Trade Agreement (Acta) appears to be causing concern, particularly among internet users, possibly due to the lack of knowledge about what it really entails. This is mainly being fuelled by the confusion of Acta with the US’s now shelved Stop Online Piracy Act (Sopa), against which Wikipedia and Google protested by blacking out their websites for a day last week.

Acta is not Sopa. Acta does not foresee any rules to cut access for citizens to the internet. Acta is not about checking or monitoring your iPod, laptop, e-mails or phone.

It will not censor websites and is not about your shared files on Facebook. Indeed, Acta introduces no new EU legislation, and is definitely not a threat to internet freedom. The allegation that the implementation of Acta shall lead to a limitation of fundamental rights or civil liberties simply has no ground.

Acta is an international agreement (also entered into by Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US), which concerns procedures and measures to enforce rules which already exist in Europe. It gives holders of intellectual property rights protective tools against large-scale and organised counterfeiting operations. European intellectual property rights owners will see these rights also being upheld in participating countries outside the EU, even where previously they were exposed.
Contrary to some misperceptions being floated, Acta is not just about the internet. It is also about protecting our safety and health. Bogus medicines account for almost 10 per cent of world trade in medicines.

Acta concerns, in equal manner, the European author who is confronted with pirated copies of his or her book outside the EU, or the clothing company that discovers fake reproductions of its lines competing with its genuine products to the detriment of returns on its investment in product development.

The text of Acta has been publicly available since April 2010. It exists online in Maltese and all the other EU official languages. The negotiations for Acta within the EU structures were no different than similar negotiations on any other international agreement. Any intimations of secret proceedings are incorrect. Intergovernmental negotiations dealing with issues that have an economic impact do not however take place in public and negotiators are bound by a certain level of discretion. Under the Lisbon Treaty and the revised Framework Agreement, there are clear rules on how the European Parliament should be informed of such trade negotiations and these have been followed scrupulously.

The Commissioner, Karel De Gucht, has participated in three plenary debates of the European Parliament, replied to dozens of written and oral questions by MEPs, as well to two Resolutions and one Declaration of the EP. Commission services have also provided several dedicated briefings to MEPs during the negotiations.

The agreement is in line with current EU legislation which fully respects the fundamental rights and civil liberties of its citizens, in particular privacy, freedom of expression and data protection.

In a nutshell, Acta acts against large scale infringements very often being indulged in by criminal organisations. It is by no stretch of the imagination a restriction or control of the private use of the internet by citizens.

The European Commission is actively pursuing and promoting a digital agenda, including the most widespread, efficient and fully available internet for citizens, as a policy priority entrenched as one of the seven flagship initiatives of the Europe 2020 growth strategy.
Mr Bugelli is Head, European Commission Representation in Malta.

Never commit to writing a series if you do not have the time to write it. That should be a number one rule for bloggers. I find that having committed to a series I either finish it off or else I end up postponing about blogging in general. Anyways… in order to break this “writer’s blog” I thought of adding a sort of intermezzo for the series. I wanted to write about Labour after Franco. Joseph’s party was left with bad taste in its mouth when the result of confidence vote was clear. No rush to the polls. All that “Jiena lest biex immexxi” was futile in the end and Joseph was reduced to yelling “Bring them on!” for the Local Council elections.

Labourites and disgruntled voters alike were royally pissed off that’s for sure. One interesting aspect is the viciousness with which they attacked anyone like myself who had begun to remind them that electability is not about the other parties deficiencies but also about your party’s plans for government. “Don’t start with your unelectable Labour bullshit again” I was told. It must be so painful to be told that again… four years after your dear leader has supposedly had enough time to build a winning team with a plan that should breeze into Castille the day after a formality of an election is really announced. But that’s the point isn’t it? Labour’s “Hope” is built on a mysterious “vision” that is shared with no one.

Much like gonziPN in 2008, Labour are fashioning a campaign around the promise of one man: Joseph Muscat. Once you get over the noise about “Instability”, “gonziPN’s dismantlement”, “Inefficiency” etc, once the whole fracas surrounding Franco’s last hold on government is over… you will be left with the naked truth. Two parties geared up for election. What is Labour promising? Joseph Muscat that’s what. Peel away the complaints and the only inkling of a plan you have is a “vision” held closely to heart by Joseph Muscat. They tell us they trust him. On what basis? Because he SAYS he can run a country? On what principles? With what reference point?

After Franco we got a Labour party beating its chest ready for action. Franco’s shenanigans required that parties showed themselves prepared: just in case. To the observer on the sidelines – not particularly bothered with partisan flag-waving – it was evident that Labour was nothing but a party of words and slogans. I know you won’t believe me so here are three random interventions from Labour’s General Council. Chris Fearne, Chris Cardona and David Farrugia Sacco take to the podium. Do they mention one… just one… idea they might have as a basis for change? Honestly… beyond the plaudits for Joseph and the list of grievances (legitimate as they may be) is one of these potential election candidates telling us anything except that they trust in Muscat’s vision?

Lawrence Gonzi’s ridiculous show of leadership challenge and defence (the Soviet acclamation?) might have bought time for the nationalist party to get its act together for the eventual battle. Meanwhile Labour could do well to keep the public opinion momentum going with the drum beating it loves to impress… but it would also do well to come up with some homework pretty soon because if we were into voting for visions then we’d have Angelik as Prime Minister.

Here are the three interventions: (Cardona, Fearne, Farrugia Sacco) I could add more but you get the gist.

I really do not find Joseph Muscat’s constant referring to the Nationalist Party as GonziPN productive or palatable. Probably Muscat thinks the same of anyone who still refers to him as “Inhobbkom” Joseph. But this is not about Muscat. This post is about the party that made it to government in 2008 against all odds and got to govern with a one-seat majority. The one-seat majority is Malta’s version of the “majority prize” that adjusts the parliamentary distribution of seats in order to just about have a majority of parliamentary members who were elected on one party ticket. Yes it is important to make that distinction. I did say “elected on one party’s ticket” and not “who support the party”.

It is not too fine a distinction and it is the distinction upon which the current uncertainty of governance lies. Its roots pass through the recruitment stage for candidates in 2008 by the Nationalist party and pass further down through the last leadership battle won by Lawrence Gonzi and lead at to the very bottom of the party’s recent history when the faction based on marketing, polls and pragmatic results started to eat away at the values that defined what the nationalist party represented and most of all that had forged the choices that were at the basis of visions for the future.

The Context

It was a domino effect that resulted from the party’s adaptation to the realities of post-Berlin wall politics – a reality that was only postponed for two reasons. Firstly, in the immediate aftermath of “the End of History” when the continent’s politicians were dabbling with the discourses of Fukuyama, a Nationalist Malta was busy reconstructing a nation from the badly managed socialist heritage of the late seventies and eighties. The “Xogħol, Ġustizzja, Libertà” and “Solidarjetà… dejjem.. kullimkien” slogans were not simply populist mating calls wooing the electorate but building blocks for a new society. There was promise and a set of values around which to plan the future. The nationalist party had no time for internecine squabbles between 1987 and 1994. It was busy.

Then came the second reason for the postponement of any need to adapt to “the End of History”. The challenge to drag an unwilling nation (there never was unanimity in this matter) into the EU proved to be an energy sapping exercise. The mission to join the EU club provided the necessary “value-driven” campaign that could keep the nationalist movement that had been constructed around Eddie Fenech Adami together for a while longer. Last election I wrote many a time that these choices (modernisation, construction of a democratic nation, EU membership) were “obvious choices” for which the PN should not be blowing its own trumpet too often. They may have been obvious to me and to many an educated gent and lady who had lived through the socialist period and longed to join the Western world but they were not obvious for Alfred Sant (and Joseph Muscat at the time) and his freezing of the EU membership bid in 1996 was ironically the freshest breath of air for a nationalist party that had been badly bruised by the electoral result.

In an ironic twist of the historical narrative Dom Mintoff proved to be the saviour of the nationalist party’s renewed bid to join the EU. From the hara-kiri of Sant’s short-lived government to May 2004 the Nationalist machine – party and government  - had one obsession, one goal, one direction that did not allow for any distraction (let alone dissension). And then, starting from the infamous Luxol Ground speech by Eddie Fenech Adami the nationalist party lost its reference points and the downward spiral began. Bereft of the main challenges that had kept its clock ticking the PN suddenly discovered that for the first time since 1981 it was a party without a cause. All too suddenly it had become a mirror image of its greatest enemy: all noise and no substance.

All the Men that made GonziPN

This was the party that Lawrence Gonzi inherited after the war of attrition with the Dalli faction. Sure, the rot of many years in power had begun to set in. Sure, the cliques and favors that would eventually translate into media stories of nepotism and friends of friends networks continued to eat at the foundations of a party that had lost its compass. These were effects though, not causes, of the great decline of the PN machinery. 2008 was the benchmark year. In order to win at the polls again the PN dropped any remaining travesty of being a party with a plan and transformed into a Presidential movement. PN became GonziPN and the party machinery ditched the value-driven inspiration in favour of the marketing machinery and the dogs of war.

Having an opposition that puts up a feeble fight did not help obviate the redundancies in the policy category. After all who needs ideas when you can win by simply saying “Don’t vote for the other?”. The race for number one votes on the ballots meant that the web cast for potential candidates was as wide as possible (and with the only consideration being vote pulling factor). Errors that had already been committed at local council level with unpalatable candidates being preferred in favour of statistical and numerical victories were now repeated at national level. How did the Pullicino Orlando’s, the Mugliett’s and the Debono’s end up on the nationalist benches in parliament? Ask the 2008 “successful” campaigners – they will tell you. All that GonziPN needed was a slogan – a dream that might link its quest to past substance – and even for that it went and filched it off Monsieur Sarkozy. “Ensemble tout est possible” became unshamefacedly “Flimkien kollox possibli”. The die was cast.

Few would deny that the 2008 victory was a victory by default. GonziPN did not win the election, it was Sant’s Labour that lost it. Before long heroes such as JPO were bouncing up and down on their seats – not content to have survived the travesty of marketing and bitching that could have very well meant the downfall of this kind of politic had Sant played his cards properly. There can be no doubt that the downfall of this government was fashioned within the halls of Dar Centrali back in 2008 when the decision was made to transform a movement of social values and economic well-being into a presidential party honed for power without a back up plan.

Such short-sightedness was also the result of an unwillingness to engage with its own roots and to take up the unfinished business of creating a post-Berlin Wall raison d’etre.  It was a mixture of laziness and excessive confidence that combined with a new generation of Young Turks who had been bred to unquestionably blend in to the echelons of power without engaging with new ideas. The PN born out of the 2008 election was the final death stab at the inspirational party that had read the national narrative so well for so long. From the moment GonziPN’s disparate motley crew took its place in parliament to govern with its artificial relative majority, “uncertainty” was a time bomb waiting to happen.

Dealing with Franco

Delaying writing this post has had its advantages. By now the General Council has ended and we all know how Lawrence Gonzi has chosen to deal with the hot potato that is Franco Debono. Can it be surprising that the party that opted for the Presidential-style mould will try to solve this latest challenge by reinforcing the presidential image? The end-of-term leadership race will in all probability turn into a victory by acclamation by Lawrence Gonzi. Who will dare stir the boat any further? Inevitably the leadership “challenge” will buy the PN time in government. Franco can no longer legitimately yell his lack of confidence in Lawrence Gonzi – even he will have to bow to the nationalist party’s vote.

Buying time also means buying time for the government projects that were coming to their end to be finalised. There will inevitably be accusatory fingers pointed at projects and laws finished and enacted on the eve of an election. Honestly speaking most would have been end-of-term projects anyway and would have suffered the same fate. That is not the biggest problem for GonziPN. The biggest problem is that this  ”leadership race” is the last-ditch reaction by Lawrence Gonzi and worse, an insistence on engaging within the “presidential” context dynamic. What remains to be seen and what is of paramount importance for the party is whether it is learning from the past mistakes. To do so it has to acknowledge them humbly and prepare to rebuild from scratch.

2012 is many political light years away from 1989. It might still not be too late for the nationalist party to make an appointment with history and use this latest borrowed time to take up real politics (not realpolitik) once again. For that it needs less noise, less drama, less taste-based propaganda and bull and to concentrate on the substance. Values, policies and a bottom-up realisation that this is the time to face new challenges within new parameters might only just make it.

Will fate throw another lifeline for the PN and spare it the (by now very necessary) years of rebuilding in opposition? We can only hope that if it does then the Nationalist party gets down to the real business of politics.

There could be no other place to begin than with the main protagonist. Franco Debono kept the whole nation waiting with bated breath for the unfolding of whatever his plan might be. Notwithstanding his declared agenda it was hard to second guess where he may be going with it – especially since the timing of most of his decisions seemed to be misjudged and more importantly because whatever plans he had were constantly outshone by his ego.

It could be that in order to fight the establishment you do need balls the size of Mosta dome and it is also a fact that in Malta short of renting an applaud-me crowd of hacks and elves you end up having to blow your own trumpet. It could be all that and more but there seemed to be more than one point where Franco Debono seemed to have lost the plot.

To be fair most of the contents of Franco Debono’s list of grievances survive the test of political sanity. They are far from being a Norman Lowell style list of anachronistic or loony policies. Taken individually some of the minor points (cassette tapes in court) tend to remove  the shine from a plan that includes wholistic institutional reform and a strong direct challenge to the PLPN lifeline of unregulated party financing. Franco Debono has done more for the cause of highlighting the problems of our duopolistic rush to mediocrity than anyone else in the last twenty years. So what  went wrong?

Well beyond the egomaniacal self-aggrandisement and the scattered presentation of the grievances, Franco Debono’s biggest problem was one: timing. It is always a pertinent question to ask when analysing the news: Why Now? Why indeed did Franco rock the boat when he did? Franco’s edginess became pronounced following the divorce vote in parliament – Dr Gonzi’s vote against the popular vote seems to have done the trick. The problem is that judging by what Franco has to say nowadays there is no real correlation between the divorce vote and the problems he highlights.

From day one, this government has always been at risk of being at the mercy of a one-seat renegade. As I pointed out early after last election, GonziPN might have snatched victory from the jaws of defeat but this was done at a the expense of stability. It was not just the one seat-majority but also the pick’n'mix of candidates that were virtually an undeclared coalition of disparate ideas and agendas patched together simply to garner votes.

So why does Franco wait till the dying moments of this legislature before dropping the big bomb? The urgency of institutional reform and of electoral reform did not occur overnight. The question of “cliques” running our political parties – a direct consequence of their internal systems adapting to the parallel mechanisms of power on a national scale – were also there from Day 1. So why now?

The outcome of last Thursday’s vote might point to a compromise having been reached. Did Franco get a promise that the legislation he wants will be passed through parliament? That’s highly unlikely. You do not prepare a “wholistic change” to constitutional structures in six months. Even the much taunted Party Financing bill risks running into a 3/4 majority parliament wall should it attempt to introduce crimes for violations of electoral law.

So if that was not the compromise what was? The hunch we have is that Franco is attempting to change the power hierarchies of the nationalist party by threatening the stability of government. The hints are there – his calls for PM Gonzi’s resignation are qualified with additional calls that he should change his ring of advisors and that a number of ministers’ heads should roll. Ironically Debono sees the strongest justification for filling the party hierarchies (and Ministries) as being popular support : universal suffrage.

So Debono’s timing for the party financing and reform laws blew the wind out of his sails as to whether or not he is the great champion of reform. Instead the timing of his abstention and all that surrounds it points to the real battle he seems to be engaging: an internal one within the PN hierarchy. Either Don Quixote has chosen the wrong windmill to battle or he has identified the wrong priority.

Again Debono stands as living proof of the wrong perception that PLPN politics has of our nation’s constitutional construct. Oftentimes we use the word “arrogant” to describe politicians. Well the arrogance of PLPN political thought lies in the fact that to them the constitutional institutions and the rules governing them are there to serve the party and its need to fit in a duopolistic system of alternation.

Which is what leads a backbencher who is suddenly thrust into a chair of dizzying slim-majority power in parliament to take on the whole system with the simple aim of improving his stance within the Nationalist party hierarchy.

To get at Austin Gatt, Joe Saliba, Carm Mifsud Bonnici, Richard Cachia Caruana and others Franco Debono decided that the best option was to threaten to topple government. He had had enough waiting in the sidelines for his opinions and ideas to be heard and for a place in the decision making clique that counts. So he refused to play.

The honourable aims of reforming and improving our constitutional and institutional framework, of changing our electoral laws and rules of party financing became a club to be wielded clumsily in the hands of a very angry backbencher who believed that he had been overlooked one time too many.

What next for Debono? It remains to be seen whether the nationalist party will play out their part of the deal that won them a temporary respite from the Debono tsunami. His role within the party is imperiled if he fails to obtain the right to present himself as a candidate for the next election. Technically his career should be over: “sacrificed” as he likes to put it, for the greater good. Ironically he might be a magnet for the kind of voter that liked his shit-stirring antics and who would rather vote a maverick than vote labour. That kind of voter believed Franco’s promises of reform and is the kind who would have loved Franco’s swan song in parliament.

Debono’s fate is intrinsically tied to the decisions that the party that he claims he loves will take in the near future. If the PN once again will be in the business of assembling a rag-tag group of disparate candidates then he might be in on the off-chance that his Champion of the Disgruntled image wins him a few number 1s. It will be a hard struggle though and until the next elections Debono might still have the last word in precipitating a Nationalist party decision to go to the polls.

The Age of the Generalissimo is, in all probability, almost over.

Don’t feel guilty if you are still reeling from yesterday’s anti-climax in Parliament. Everybody (and I mean everybody) had different expectations and most of them were based on short-term assessments that were themselves based on a mixture of emotion, curiosity and differing levels of partisan intrigue. Insofar as the live unrolling of events was concerned you could not have written a better script. Christian Peregin of the Times could report every step as is without the need to colour the news. Classics abounded – Herrera’s Twistees, Franco’s phone, the MP’s reading the step-by-step account from the Times, the whips’ frenetic calls, the packed strangers gallery. This year’s Panto was not at the Manoel or Ta’ Qali… it was wired straight to your TV set, radio or computer.

Not many of us yelled “Look behind you” during the actual debate but we did get the full panto “booing and clapping” shortly after the session finished (see video) and the outcome was clear. The biggest surprise for J’accuse was that many people were surprised at the outcome. That there were many (many) men in the street still crossing their fingers rooting for Franco to vote in favour of the confidence motion was acceptable. That it became increasingly evident that the Labour party actually had hoped for this to happen exposed new levels of naivety within the party’s strategists.

There were less sighs of relief from the Nationalist party end but this was probably more due to the fact that they were fully aware of some sort of deal with Debono that had avoided the worst. The nationalist party would live to govern another few days but the exercise of damage limitation had not avoided multiple bruising and the attempt to portray any sense of triumphalism that Joseph’s side had been “defeated” would only expose a shallowness and falsity that aggravated matters further. The cracks had just got wider and hell did they know it.

That was the day that was. In the next few posts (later this afternoon) J’accuse will take an in-depth look at all the participants and try to analyse what this means in the long and short term.

In the first part we will look at the parties and take stock of their current position: Did Franco abstain because of his reluctance to gift Joseph Muscat with what he wanted or was a carrot dangled before him? How far into election mode are we? The parties were evidently unprepared for election mode – will the race without a warm up be advantageous to any of them? Will the No Confidence Saga leave any dents in any of the parties’ armour? Can Alternattiva Demokratika ride the wave of evident disgruntlement at the PLPN methodology? Will this election  lead to another Victory by Default?

The next part will focus on voters and their reasoning. Is the voter prepared to make his vote count? What are his criteria? Will the voter consider the possibility of breaking 50 years of PLPN duopoly? Can he? Are the signs of “two-tribes” politics subsiding or are they being reinforced with the new digital pepper added on?

All this and more in J’accuse’s “Malta Post-Franco” analysis starting today.

If you have not subscribed to our email updates then this is probably the best time to do so. Enter your email address (right column subscription box) and you will receive an email update every time a new post has been added to J'accuse. Also do not forget to check out the other blogs in our Akkuza Soapbox (also right column) who are also actively commenting on the current political situation as it unravels. 

The nation seems to be caught between two distinct feelings. On the one hand its holding its breath for some massive occurrence such as the demise of GonziPN while on the other hand the deja vu sense of “Yeah right, pull the other one” has begun to take over many a level-headed observer. Last night’s curtain raiser in the “Great Motion of No Confidence” debate did nothing to lessen either of the two camps’ expectations and we were limited to such ancillary gossip surrounding the VIP MP.

What book was Franco reading in court? How many government MPs visited Franco in his impromptu backbench confessional? How many opposition MPs were left sitting by the end of the debate? Above all, what the hell did Francis Zammit Dimech say?

Meanwhile Joseph Muscat continues to strut around as a Prime Minister in all but form. We have long left the realm of the surreal and entered the psychedelic frontiers of the dysfunctionally deranged that defy any sort of pundit interpretation. In order to have an opinion on the actions and reactions of our political clan you have to be on some form of drugs. At least.

How else can you explain that in a week when the Eurozone president confirmed that Malta’s economic performance was good and that we would not be needing further tweaking during these crisis moments we have a nation obsessed with the “Malta Falluta” spiel? The way J’accuse sees it, this parade risks only getting worse. You’re not reading it here first but the way things are going the man with the most tomatoes on his face at the end of this week risks being Joseph Muscat.

It is evident that Franco has been moved towards abstaining (again – we told you so what seems like ages ago). Which would leave Dr Gonzi at the head of a government that has undeniably shifted to pre-election mode and will stay as such – a bit of embarrassment there no doubt but still with the support of a majority in parliament.  That is crucial.

After the vote, Joseph is left with a party that has moved a motion of no confidence gambling on the fact that it will succeed. He either believed it will succeed or just wanted to stir the waters. If the no-confidence motion fails then his political noux has once again failed him. It will also mean that Labour’s only motive for such a motion was to yell crisis where there is none. And this is the ugly part.

Yes. Hard as it may be to swallow for those who already believed Joseph’s principle-free party had one foot inside Castille, the sudden shift on Monday night by “il-mexxej” to the position that “beyond the numbers government is in crisis” is telling on how Joseph’s real motives can no longer be hidden behind empty words. What the flying progressive donkey is  ”beyond the numbers government is in crisis” supposed to mean?

Because either the government is in crisis – and the numbers based on the constitutional rules of support in parliament prove it – or it isn’t. In which case the Labour party’s opportunistic motion backed by a Mexxej who claims to be “lest biex immexxi” is uncovered for what it is. There is no economic crisis in Malta. The performance of this government’s economic management compared to that of its EU peers passes many an exam – and it is not J’accuse who says it.

So what crisis is left? Is the maladroit Donquixotism of Debono at any point equiparable to a crisis? Is it Tahrir Square style crisis? Is it Athenian and Madrid style crisis? We all know it isn’t. Joseph knows. But Joseph doesn’t care. Joseph does not give a flying progressive donkey about whether the ship is relatively stable notwithstanding the stormy seas. Joseph will not stop jumping opportunistically at every opportunity to destabilise this government if that means an earlier chance to grab at the Castille seat.

I’d like to think that Debono had this legerdemain in mind when he kicked off this confidence motion bluff. I’d like to but I don’t. In any case his move, intentional or otherwise, has shown Muscat up for what he is. To many of us it has become evident that Muscat will put his unbridled ambition before the interests of the country – will it be evident to the disgruntled voters, to the reformists within PN and most of all to Franco Debono. 

Crucially, the dice have not all been thrown yet. Hold your breath there is still some time before we can yell “alea iacta est”.

So Franco has now slipped his much touted bill on the financing of political parties into parliament in the form of a Private Member’s Bill. Should we wait before unpacking the fireworks? This must definitely be the last move by the Honourable Member of Għaxaq that proves to us that his seemingly interminable duel with power is not based on anything remotely resembling a coherent plan. Worse still it shows up the greatest deficiency in Franco’s actions: the apparent lack of clearly definable targets. Coupled with the Beppe Fenech Adami revelations Franco’s period as a rising star of Maltese politics has been transformed into the dying moments of a supernova. Why?

Let me tell you why. If, as Franco has often stated, the sick state of our party system is at the core of our political inertia and of what he claims to be our failed democracy then why wait for the dying moments of this parliament to present an all important private member’s bill that hits at the heart of the matter? While he danced, tangoed and sashayed in matters such as public transport Franco never tired of reminding us of his ultimate crusade. Meanwhile he was using the PN government’s one seat weakness to constantly attract attention to his immense capabilities and ultimately to the fact that GonziPN’s web of evil was guilty of putting this man with many solutions on the backburner for too long. Here was your typical example of the nagging footballer who evidently cannot stomach being left on the (back)bench for too long.

So a crucial question must be asked of Franco. Why now? As JPO showed very well with his own Private Member’s Bill on divorce, a timely proposal could have stirred the waters earlier on and shifted the national discussion to the crux of the matter. If let’s say sometime before or after the divorce saga you opted to present this law and switch the whole party system into the limelight then surely you would have been doing your duty as a responsible representative of the interests of the demos. For some reason you did not. I know for a fact that you have been working on it for a long time – who doesn’t?  Then why?

Surely you do not expect to now switch the condition of saving the day for government to the enactment of one law drafted by one person (you may be brilliant but I’m sorry it will take more than one lawyer to finalise a proper draft)? Is that your idea? To have brought the government and two political parties to the verge of an election only to tell them at the last minute to forget it and to concentrate on enacting a law first that practically threatens to handicap them in the future? Really? Seriously?

There is one issue and aside that needs to be considered. I got the impression during the last round of EU elections that many MEP candidates were very angry at their fellow candidates (even from the same party) who, according to these disgruntled candidates, bore false witness as to the amount of electoral expenses that they dispensed. Many of the “weaker” strand of candidates – those who are not in the frontline Ministerial seats or decision making committees of parties with sufficient exposure – would be desperate for a law that (rightly) puts the competition on an equal playing field during pre-electoral battles. Your minister with his deep pockets and incumbent powers might be too much of a match for backbench politicians attempting to get their backside back onto a parliamentary seat next time round… hence the probable eagerness for stricter regulations of electoral spending.

Somehow I may be wrong but I get the hunch that a couple of elections battling it out with heavyweights like Louis Galea might have taken their toll on Franco’s ability to face another round. Hence the need to propel himself to the front come what may. (A reason among many of course). Hence the last minute bill that will probably not see the light of day before the next legislature when district battles will have been fought, lax electoral rules on financing will have been flaunted and the same, same but different voting system will have triumphed.

Franco, I heard you say that the reforms the country needs should be made in a holistic manner. I’m sorry but this bill has everything but “holistic” written all over. Such a shame, the PLPN get their way again and we’ll have to wait quite some more time before anyone seriously tackles the matter.

Thanks Franco. But no thanks.

Video: (top right) La Lista Laqualunque

Following the speculation in the media about possible alternative electoral methods the discussion has returned to focus on the “premio maggioranza” – the compensation of seats for the party winning a majority (even relative) of votes in an election. The “stability” excuse gets politicians thinking of mechanisms to make it less possible for a renegade “Franco” to shake the boat. It is indeed incredible how they cannot see the flaw in the premisses of their argument. First of all stability should not be the be all and end all. The cause of the current instability can be found in our constitutional articles – the famous “enjoys the support of the majority of the members”. The reason the Gonzi’s PN or Sant’s MLP had a one seat majority was because they did not get enough votes to justify more seats (don’t mention gerrymandering – it’s a case of PLPN games anyway- if that’s the problem just abolish districts).

Before I go on, remember that the “suggestion” is still that – a suggestion. None of the parties have been stupid enough to take a position official or semi-official. The Times carried an article with interviews with Joe Brincat and Ranier Fsadni  - that’s all. Still this question of “premio maggioranza” needs to be tackled once and for all. It’s nonsense. If something like an automatic three-seat margin is accepted then we might as well (as someone suggested) give 34 votes to the PM and 31 to the leader of the Opposition and then just vanish till the next election. Dynamic democracy needs a better definition and interpretation of the transfer of power from voter to representatives. It is by nature a transfer that remains dynamic and allows for scrutiny of the different branches of government that should be acting as trustees of the voter’s power.

Which brings me to this article from the past. From January 2008. The theme was the other side of the coin: the Wasted Vote. It is also another victim of a system envisaged to reward two parties excessively and to the exclusion of the rest. In this article I was replying to an article by Daphne Caruana Galizia on the Independent.

***

(Alas) Daphne’s Right

Posted on January 29, 2008

What follows is a letter that was NOT sent to the Malta Independent on Sunday for a number of reasons. It is a reply to Daphne Caruana Galizia’s article entitled “Settle down and read this, please“.

It has become a weird habit of politicians to apologise to editors for the space they use up in the letters pages whenever they write in with their contribution. Now I am neither a politician nor am I the apologetic type but I do feel a tinge of guilt that the subject matter of this letter requires more space than is the norm for a letter to the editor which in most circumstances should be short and to the point.

In her article last Sunday, columnist Daphne Caruana Galizia berated the “tiresome lawyer” Claire Bonello for ‘relentlessly whining’ against all that is Nationalist as well as for not declaring her bias towards Alternattiva Demokratika. There is much to be said about the necessity of declaring a bias that is obvious for all to see but that is not why I put fingers to keyboard to contribute to this discussion. What really interests me is the issue of “basic electoral mathematics” so ably brought up by Daphne – the matter of wasted votes.

It is a uniquely magical effect of this country’s electoral laws that give us a situation where – and Claire will surely pardon me for adapting her poster – you “Vote Harry, Get Freddie”. Daphne is right. So right on the issue of these peddling Alternattiva vote-catchers who prey on the arithmetically challenged chatterers of the Sliema Bourgeoisie. Surely they are aware that the votes they crave for their leader will be flushed down the electoral toilet. A vote for Alternattiva is the electoral equivalent of Professor Refalo’s negative marking in the Constitutional law exams for first year law students. You don’t just waste your vote, it’s also less votes for PN and hey presto one more feather in Freddie’s cap.

How funny that I should mention Constitutional law. That very constitution against which the laws of the land should be tested – the kelsenian grundnorm that guarantees that we live in a democratic country and not in a Banana Republic. Daphne is right. The current electoral formula does not allow you to focus on the party you want in power. It does not allow you to say “Hey. I don’t like the nationalists. I not even vote for the MLP when I’m dead lest my vote be counted with that of the living. Then why not vote for AD?”

Why not indeed. It seems that when you think that way you choose to ignore the ominous presence of a potentially disastrous party ready to pounce on Castille. Daphne believes that asking people to vote AD means ignoring the existence of MLP. Something like the child wishing the monster away and hoping the adults will deal with it. Which could be true. Only there is a bit of twisted logic in that too. It may be a step up from basic arithmetic but I am sure Daphne could bear with me as I explain.

You see the problem is that, as the European Parliament elections proved, given the chance 20,000 or so individuals would vote for a different kind of politician. Let me be clear about this. It does not necessarily have to be Alternattiva. My interest is the breaking of the stranglehold of bipartisan politics – and Alternattiva is currently the only plausible alternative I can think of. I see it as a Trojan Horse into the fortified battlements of MLPN. Getting rid of the dichotomy means getting rid of the parochial way of thinking and governing.

So, given the chance people will change voting habits. The bigwigs at MLPN noticed that and last year they dealt the final blow to this possibility. They took away the chance for thousands of voters (even Daphne’s chance) to vote for another party when irked with the two of them. They created the mathematical formula that underlies Daphne’s argument. She is right. Of course she is right.Under the present magical formula concocted by the PN and passed unanimously in parliament, 20,000 votes spread among the 13 districts of the country can be lost. A party garnering 20,000 votes will not get one single seat in parliament. The magic words “proportional representation” have been neutered to an insulting situation where: if, and only if, two parties get elected to parliament under the present system then the seats shall be allocated proportionally to their national vote.

Daphne is right. What she is telling us is this. If you were ever thinking of changing the political spectrum in this country you have been royally screwed. The disincentive first trumpeted to the masses by then PM Fenech Adami – vote AD get Labour – is now here to stay. In one fell sweep, PN got rid of the only party that could seriously challenge its programs with an alternative vision of doing politics. It was one fell sweep that guaranteed the status quo in our political scene. What we have is an alternating chair. So long as Labour remain the band of inept politicians that the PN machinery depict, then PN’s place in government is virtually guaranteed.

Sorry Claire. You cannot go on campaigning without showing the second half of your poster. No “Vote Harry” without “Get Freddy”. I have other plans on my mind. You see Daphne, I too am one of the chatterers. I would love to not have been brutally disenfranchised by the electoral reforms. Like you I am often baffled at the way politicians in this country are ineffective because they live secure to see another day – since electoral scrutiny has turned into a PN vs. MLP farce. Our paths split the day you decided to accept the way MLPN voted to hold your vote to ransom.

I am fully aware of the repercussions of voting AD. I am fully aware of the “wasted vote syndrome” in our elections. Unlike you however I think that the responsibility is not mine to bear but that of MLPN and their electoral reform. Come election day I will exercise my right to vote. I will continue to use my vote to provoke change in Maltese politics. And the day my vote for Harry translates to a vote for Freddie I do not believe I should be the one to do the worrying… I’ll leave that to whoever came up with this wonderful idea that my vote is worthless and worth wasting.

The ball is in their court.