Category: Constitutional Development

Categories
Constitutional Development

The Constitutional Matters (I)

As Malta braces itself for an invasion of constitutional experts I thought it would be opportune to throw my hat in the ring with a short series of Constitutional posts related directly or indirectly to what is happening at the moment.

The matter of who is the de iure and de facto Leader of the Opposition is the current hot potato just as the hapless Delia has lost a vote of confidence among the nationalist MPs. That vote confirmed that Delia no longer ‘commands the support of the largest single group of members of the House in opposition to the Government who are prepared to support one leader’. The words in quote are taken from article 90(2)(b) of the Constitution and as we shall see they are part of a conundrum relating to the appointment, tenure and removal of the Leader of the Opposition under our Constitution.

I say conundrum with intent. The whole of article 90 presents us with a series of alternative situations that should they occur would lead to the appointment or removal of a Leader of the Opposition.

Appointment

Unlike in the case of the appointment of the Prime Minister, political parties are mentioned when it comes to the choice of Leader of Opposition. Article 80 concerning the appointment of the Prime Minister in fact refers to the member ‘best able to command the support of a majority of the members of that House’. Article 90 on the other hand is the only article in the constitution to refer to the leader of a political party.

So, insofar as the appointment of the leader of the opposition is concerned, the first option for the President (article 90(2)(a)) is triggered if there is one opposition party whose numerical strength is greater than any other opposition party (in our case PN is larger than PD). In such a case the President will appoint the leader of that party as Leader of the Opposition.

In the hypothetical situation that no one opposition party is larger than the other (equal number of MPs) or there is no opposition party (all MPs are independent in opposition) then the President has to look for the person who commands the support of the largest group of members in the opposition. In this case no reference is made to party leadership. (article 90 (2)(b)).

Vacancy

Article 90(3) gives us all the options when the office of the Leader of the Opposition becomes vacant. The obvious reasons are when there has just been an election (dissolution of parliament) or if the leader of the opposition has ceased to be a member of the House. There is a final option which is covered by Article 90(4) which covers revocation of his appointment,

Revocation

If , in the judgment of the President, a member of the House of Representatives other than the Leader of the Opposition, has become the Leader in the House of the opposition party having the greatest numerical strength in the House or, as the case may be, the Leader of the Opposition has ceased to command the support of the largest single group of members in opposition to the Government, the President shall revoke the appointment of the Leader of the Opposition.

Article 90(4), Constitution of Malta

This sub-article really provides two alternatives. First of all we have the situation where the Leader of the Opposition is replaced as leader of his own party. Presumably this would mean that there has been a move within the party and the Leader was voted out with a new one voted in. That automatically triggers a change in the office of the Leader of the Opposition.

The second, more delicate, alternative occurs where the Leader of the Opposition ceases to command the support of the largest single group of members in opposition. No more talk of political parties here. The measure is clear – if the Leader of the Opposition no longer enjoys the confidence of a majority among the opposition members then the President must revoke his appointment.

Now the vote of confidence taken at PN HQ is clear. Of the 30 PN MPs 19 voted against Delia (17 of these are MPs, 2 (Metsola and Casa) are MEPs). 10 voted in his favour (and Delia himself). We do not even need to factor in the two other Opposition MPs from the third party (PD) because that still leaves Delia in a minority. There should be no way out constitutionally for Delia.

The Presidents’ prerogative is qualified with the words “in his judgment” though I doubt if George Vella can come up with a plausible reason to deny all evidence pointing to the obvious. Delia no longer commands the confidence of a majority of opposition MPs. His appointment to Leader of Opposition should be revoked.

Political Party Leadership

Delia is pandering to the harridans and populists with his calls to respect the vote of the tesserati. He is using that excuse to cling to his position as Leader of the Opposition. As we have seen though the two posts are not linked directly. Rather, that vote of confidence has effectively ended Delia’s tenure as Leader of the Opposition both de iure and de facto. What remains to be done is for George Vella to snap out of “standby” mode and revoke his appointment.

For the time being Delia can cling to the leadership of the party with desperate claws. It would not be the first time that he prioritises his own aims over the needs of a nation and of his own party. Meanwhile the ‘rebel MPs’ need to get going. There is a constitutional role that needs filling. Finding one among them to fulfill the duties of leader of Opposition should not take too long. Also, if the President drags his feet any longer on the revocation they might need to up their ante by walking up to his door and presenting their chosen candidate.

And the UK

Interestingly enough our former colonial overlords who bequeathed upon us a particular form of parliamentary democracy have a peculiar way of identifying the Leader of the Opposition. It is not the Queen (in lieu of our President) who determines the leader but the Speaker of the House – and this only in case of dispute. The accepted choice is normally, as in Malta, the Leader of the largest party in Opposition. However under the Ministerial and Other Salaries Act (1975), we find the following provision:


(1) In this Act “Leader of the Opposition” means, in relation to either House of Parliament, that Member of that House who is for the time being the Leader in that House of the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons; and “Chief Opposition Whip” means, in relation to either House of Parliament, the person for the time being nominated as such by the Leader of the Opposition in that House; and “Assistant Opposition Whip”, in relation to the House of Commons, means a person for the time being nominated as such, and to be paid as such, by the Leader of the Opposition in the House of Commons.

(2) If any doubt arises as to which is or was at any material time the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons, or as to who is or was at any material time the leader in that House of such a party, the question shall be decided for the purposes of this Act by the Speaker of the House of Commons, and his decision, certified in writing under his hand, shall be final and conclusive.

Ministerial and Other Salaries Act (1975), Article 2

Categories
Constitutional Development Corruption Panamagate

We ain’t seen nothing yet

One by one they walked out of Mile End HQ with that pathetic smile that convinces only themselves and the diehard faithfuls that all is well in the State of Labour. No comments to the assembled press though, at least not until PM Abela walked out of the glass door of the infamous Dar it-Trasparenza. Abela was, rightly, the one to face the music and give some kind of rendition of what had gone in the meeting.

Good news first. Mizzi has been voted out of the Labour Party. The man who has been unfit for purpose since at least the Panama Papers revelations is finally party-less and has been left to fend for his sorry self (while still in quarantine).

In other news, Abela is still playing to the circus that voted his party back into power notwithstanding the fact that many of the what he calls ‘allegations’ were known to them in 2017. The accolytes gathered around him for moral support included such luminaries as Edward Zammit Lewis and Stefan Zrinzo Azzopardi and they were there to applaud and yell their support to make whatever happened that moment look and sound like a resounding victory.

Pressed and cornered to take a position about Joseph Muscat, Abela writhed and squirmed trying hard to build a case for not having ditched il-Kink along with the rest of the ballast. The biggest problem that Abela had was the elephant in the room : he could not say that Muscat deserved being ditched by Labour for the enormous responsibility that he has carried at the very least for standing by the Mizzi and Schembri Roadshow from the start.

He tried. He did say that had he been in Muscat’s place in 2016 he would have ditched Mizzi immediately. But Muscat’s responsibility goes further than that. It is a continuing responsibility borne by the fact that he stood square behind Mizzi and Schembri until yesterday. And here comes the elephant… that responsibility is carried by each and every member of the Labour governments who have stood square behind Muscat’s line of defences.

These are the Labour government and members who accused investigators and civil society of being traitors of the nation. They are the same members who backed Mizzi’s corrupt deals to a hilt. They are still unable to bring themselves to commit on a revision of every single contract and deal in which Mizzi was involved.

Abela today tried to get cheers for a non-achievement. His distraction biscuit today was that we would not be going to the polls any time soon (cue cheers and cries from the rent-a-crowd). The cries came from people who are just as tainted and just as mixed-up in this mess. As long as the collective responsibility for our nation’s current predicament is not borne then we continue living a lie.

As a friend of mine rightly noted earlier tonight: “Daphne Caruana Galizia would have still been alive today, had it not taken you ages to decide. Had our institutions been truly independent and allowed to function.”

That, Robert, is the reason we cannot have accolades and triumphalisms. You might convince yourself and your roadies that tonight’s vote is some big cut off moment. As far as we are concerned, we literally ain’t seen nothing yet.

photo: M. Mirabelli

Categories
Constitutional Development Mediawatch

Rajna f’Idejna

Writing in today’s Times of Malta controversial ex-politician Franco Debono discusses recent happenings in the field of constitutional reform. The article titled “The reforms we implement should be our own” concerns what Franco calls “the colonial mentality of having reforms imposed”. Constitutions and constitutional reforms must be autochthonous Debono tells us and not granted by a foreign sovereign.

What interests me today is the basic premise of Debono’s argument: that we are having reforms imposed on us by some foreign power or authority much in the same way we depended on sovereigns granting us constitutions in the past.

In simple terms, what Debono is advocating here is that any changes to our constitution must not be imposed from the outside but must come from within the country (“We the people”, presumably through the able hands of our representatives and their advisors). There is very little to criticize here: the sovereign constitutional power resides with the people who delegate their representatives (and specialists) to give legal shape to that power.

Debono does not stop there. He speaks of what he calls ‘the unfortunate and tragic circumstances in which the Venice Commission, a respected organ of the Council of Europe, was requested to make proposals about this country’s institutions two years ago”. After outlining what he terms the Commission’s ‘proposals’ he states the following:

Benefitting from the expertise of international bodies is one thing. But having fundamental structures extensively imposed on the country by external institutions is humiliating and marred by a bitter colonial taste, especially when those proposals have a local origin. Steering away from a colonial mentality towards a sentiment of national pride is the greatest reform that this country needs. The rest should follow.

The reforms we implement should be our own – Franco Debono

This is where Debono’s original premise falls flat. The implication is that the Venice Commission is imposing content on Malta, and that somehow the constitution of Malta has slipped from the sovereign hands of the people into the hands of foreign writers. M’ghadniex rajna f’idejna (we no longer have the reigns of our country in our hands). This jingoistic, nationalistic nerve that Debono is tapping fits conveniently in the current narrative of misplaced patriotism and anti-European sentiment.

The assertion of any imposition of the actual rules and laws and structures is false. This argument can be extended not only to the Venice Commission (an institution within the Council of Europe) but also to the Commission and Court of Justice of the European Union (institutions of the EU), both of which may be tasked to review the conformity of Malta’s laws and regulations with the rule of law.

Debono is ignoring the fact that such institutions are tasked with checking the standards of our laws and not their content. Every member state of the Council of Europe and European Union remains the sovereign master of its legal system. Member states are free to alter and draft their own laws as they deem fit but such laws are tested against standards which the very same member states have agreed to in their full, sovereign membership of international communities.

Think of this as a VRT test. You are free to purchase any car you choose and can tweak it to your liking so long as it conforms with the agreed standards for roadworthiness. A VRT tester does not impose a car on you but makes sure that your car is up to the standards everyone agrees to.

The Venice Commission will look at any suggested reform which the Maltese state makes. It will do so using a standard measure that is the rule of law. Should any of the measures fail to fit that standard the Venice Commission will make that known. The same goes for potential cases before the ECJ. As the Polish government found out recently, every Stateis free to change its system of appointment of judiciary – so long as that system guarantees an observance of the basic tenets of the rule of law.

Being held to certain standards is not the same as being forced to accept laws that are not ours. The standards are standards established for our own good and which we, as a sovereign nation member of international communities, adhered to. Our laws must be safe. Safe for us, the citizens who abide by them.

At the heart of such standards is the interest of “We the people” who are protected by their application. Far from being an imposition, it is an international guideline of democratic standards that we are being asked to conform to.

Given what Franco calls the “unfortunate and tragic circumstances” into which our country was dragged, the fact that the abusers of our constitution and law for so long are now being set to a higher standard when tinkering with the laws is a small but worthy consolation.

The only colonial mentality of submission would be to allow those who have held our constitutional rights hostage for too long in the name of a party duopoly to dupe us into thinking that conforming to the right standards is some blow to our national pride.

Categories
Constitutional Development Rule of Law

Vigil: justice for Daphne

Credit: Paul Borg Olivier

Speech delivered at Vigil for Justice for Daphne. 16th November 2019.

First, Let’s Kill All the Lawyers. L-ewwel ma nagħmlu, ejja noqtolu l-avukati kollha. Xi ħsieb dak eh? Ħsieb li jxewwex il-massa. Huwa ħsieb li jmiss xi ħaġa fil-fond ta’ kull wieħed u waħda minnkom, anki jekk forsi ma tkunux lesti tammettu. X’qed ngħid? Probabbli daż-żmien ħadd ma jiddejjaq jgħidu. Daphne Caruana Galizia wkoll forsi kellha xi ħsibijiet koroh dwar l-avukati f’xi mument… imbagħad iżżewġet wieħed… mur obsor …

L-ewwel ma nagħmlu, ejja noqtolu l-avukati kollha. Dik il-frażi taslilna dritt minn triloġija ta- drammi ta’ Shakespeare dwar l-ġlieda għall-poter fi żminijiet diffiċli ħafna fir-renju tal-Ingilterra – qisu Brexit imma fil-passat. Il-mument li fih titlissen dik il-frażi jiġi hekk kif persunaġġ li jismu Jack Cade qiegħed ixewwex folla ta’ nies komuni kontra min qiegħed fil-poter. Mument populista.

Cade qed iwiegħed ikel irħas u birra irħas. Ikompli jwiegħed li ’l quddiem ma jkunx hemm bżonn flus, kulħadd jiekol u jixrob kif irid u kulħadd jilbes tajjeb. Lanqas jilħaq jispiċċa jwiegħed dan kollu li mill-folla ma tqumx l-għajta :  “L-ewwel ma nagħmlu, ejja noqtlu l-avukati kollha.”

Shakespeare kien jaf li b’dan il-vers kienu se jogħxew ħafna nies.U hekk hu. Is-sentiment li jesprimi ma huwiex sempliċement wieħed kontra l-avukati iżda kontra l-istruttura legali sħiħa illi fuqha tiddependi u topera s-soċjetà sħiħa. Il-poplu ribelluż, imxewwex minn dak li jixtieq isir Re bil-wegħda ta’ status aħjar ma jirrifjutax il-possibbiltà li jinjora obbligi, li jivvjola wegħdiet u li jikser ir-regoli.

Cade jirkeb id-dagħdigħa tal-mument u jsejjaħ lill-massa biex tkisser l-iskejjel tal-liġi u l-qrati. Minn issa ‘l quddiem il-liġijiet isiru kollha minnu u minnu biss. Cade huwa l-eroj tal-mument. Is-segwaċi tiegħu lesti jaċċettaw sistema li trendi r-rappreżentanza istituzzjonali inutli – lesti jkissru sistema sħiħa. Kollha kemm huma jafu li Cade huwa giddieb magħruf imma lesti jagħzlu l-ħolma-wiegħda tiegħu fuq kollox: “Henceforward all things shall be in common.” L-Ingilterra Tagħna Lkoll.

Cade jgħid lill-marmalja ta’ quddiemu li l-għadu huma l-litterati u l-għorriefa. Ma jdumux ma jixxewxu biex jgħallqu skriba “bil-pinna u l-klamar m’għonqu”. It-tradituri tal-kawża kollha għandhom jinġabu quddiem il-ġustizzja tal-marmalja.

Nista’ nkompli b’iktar eżempji minn dal-kapulavur storiku. Li rridu nifhmu hu li Shakespeare, li kien qed jikteb fi żmien meta stejjer dwar ribelljoni kienu ċċensurati bil-kbir, qed jikxef l-elementi taż-żelqa lejn it-tirannija.

Shakespeare qed iwissi dwar dawn is-sejħiet biex jitfarrku l-ġustizzja u l-għarfien. Twissija li tapplika ghal dawn iż-żmienijiet ukoll. Qiegħdin hawn għal darb’oħra fuq kollox sabiex infakkru kittieba, ħaddiema tal-kelma li sfat suġġett ta’ ordni moqżież : mhux li titgħallaq bil-pinna u l-klamar ma għonqha imma biex iġġarraf splużjoni b’mod barbariku.

Dik l-ordni ġiet fi żmien meta l-battalja kontra l-ġustizzja, kontra l-loġika u kontra r-raġuni kienet ġa bdiet. M’hemm l-ebda dubju – Daphne Caruana Galizia hija l-vittma tax-xewwiexa li qarrqu bin-nies bl-illużjoni ta’ ħajja aħjar, li wasslu biex inkonxjament jiġi injorat it-tkissir tas-sistema, li biegħu il-gidba li dan huwa L-Aqwa Żmien.

Is-sinjali ta’ twissija kienu ilhom hemm. Imma spjegazzjonijiet tekniċi dwar it-tkissir tas-Saltna tad-Dritt – ma jistgħu xejn kontra mewġa fuq mewġa ta’ populiżmu u demagoġija.

Xogħol Daphne kien jifforma parti minn makkinarju ikbar ta’ xogħol impekkabbli magħmul minn mewġa ġdida ta’ ġurnalisti u investigaturi – moviment ġdid kontra l-korruzzjoni fid-dinja, fl-Ewropa u f’pajjiżna.

L-istituzzjonijiet tagħna nħatfu. In-nies għadhom f’qagħda lluppjata ta’ aċċettazzjoni. Għadha ma nqalbitx il-folja. L-isfida li niffaċċjaw illum huwa li nkomplu nipperseveraw u nseddqu l-veritajiet li nies bħal Daphne kienu qalbiena biżżejjed li jikxfu. Hekk kif iktar nies jifhmu bil-qerq il-kbir li tagħha huma l-vittmi, iktar ma tikber ir-rabja għall-bidla.

Sentejn wara l-fatt, irridu naċċettaw ir-realtà patetika li dan l-assassinju ma kienx atroċità kbira biżżejjed li ssarraf f’azzjoni konkreta reali mill-poplu. Irridu naċċettaw il-verità qarsa li anki jekk rajna l-istituzzjonijiet jinħatfu wieħed wieħed, anki jekk rajna ir-rappreżentanza titmermer u titniġġeż mill-kilba partiġġjana, anki jekk rajna lill-għassiesa tagħna nnewtralizzati, dan kollu għadu ma kienx biżżejjed biex ikebbes nar ta’ moviment ta’ bidla.

L-irjus koroh tad-dubju u tan-nuqqas ta’ fidi fil-proxxmu jqumu kull meta forsi kien hemm ħjiel ta’ bidu ta’ bidla. Dak l-istess dubju u nuqqas ta’ fidi jkissru u jifframmentaw l-ilħna tal-bidla u jsaħħu lill-użurpaturi tal-poter.

Imma. Nixtieq inwassal aħbar tajba lil din il-velja. Nixtieq ngħid li l-movimenti taċ-ċittadini mgħaddba għall-istupru tal-ambjent u għall-abbuż tal-awtoritajiet tal-ippjanar, li il-kuxjenza dejjem tikber dwar differenzi kbar soċjal-ekonomiċi – huma sinjal li r-riħ qed iqum.

Nixtieq nenfasizza li minkejja li għad hawn politikanti lesti jixorbu mill-ilma mdardar tar-razziżmu, xenophobija u mibgħeda għall-barrani – hawn ukoll min lest jieqfilhom. Irrid nenfasizza dawn l-aspirazzjonijiet ġodda għal Malta verament Ewropea li taspira tkun parti mill-bidla kontinentali għal futur aħjar.

Dan kollu minkejja – u mhux grazzi għal – ħafna minn dawk li suppost jirrapreżentawna. In-nies qed tfittex vuċi ġdida, bidu ġdid li jwarrab stili qodma u li jwassal proġett ġdid għall-ġid komuni taċ-ċittadini. Il-mara li xogħlha nikkomemoraw illum ħadmet ħafna biex tikxef il-veritajiet li huma neċessarji f’din il-ġlieda. Tagħha ma kenitx qlubija fiergħa. Kif qal Peter, ir-raġel tagħha:

« Il-Qlubija waħedha ftit għandha valur jekk ma għandhiex skop. Mingħajr sens ta’ ġustizzja. »

Illum niltaqgħu biex naqtgħu ras il-mostri tad-dubju u nuqqas ta’ fidi. Niltaqgħu hawn biex inkebbsu dak is-sens ta’ skop. Niltaqgħu hawn biex nikkonfermaw li nemmnu f’socjetà ġusta. Niltaqgħu hawn biex nikkommettu ruħna għat-tfittxija tal-verità, għall-ġlieda għall-ġustizzja u għat-twelid mill-ġdid ta’ Repubblika li rat wisq uġiegħ u ġarrbet wisq dannu.

First, let’s bring them all to justice. L-ewwel ma nagħmlu, ejja naraw li jsir il-ħaqq.

Categories
Constitutional Development

The People vs the Government of Malta


Paul Gavan (Ireland, UEL) for the people of Malta. In the background Stefan Zrinzo Azzopardi, for the government. “disappointed by the amendments tabled by the Maltese colleagues… when you are in a hole stop digging!”

Last night, the Parliamentary Assembly of the Council of Europe voted overwhelmingly to approve a report on Daphne Caruana Galizia’s assassination and the state of the rule of law in Malta. The resolution  listed a series of “serious concerns” over the investigation into the murder of Maltese journalist Daphne Caruana Galizia, and demanded the setting up of an independent public inquiry into her death within three months.

The Assembly also noted that “The rule of law in Malta is seriously undermined by the extreme weakness of its system of checks and balances.”. It called on Malta to urgently implement, in their entirety, reforms recommended by the Council of Europe’s Venice Commission and its anti-corruption body GRECO, noting that the recent State Advocate bill was “inadequate to reform the office of Attorney General”.

Not many international media outlets carried the result of the resolution in its immediate aftermath. Bar the chatter on Maltese media and on social networks the impression would be that the Malta Government’s damage limitation exercise has worked. Has it? Are we faced with another international institution that has more bark than bite? Will there be any consequences following the resolution? What can we expect?

What can the PACE do for me?

To begin with here is what the PACE consists of:

The Parliamentary Assembly of the Council of Europe (PACE) is the parliamentary arm of the Council of Europe, a 47-nation international organisation charged dues to their members, dedicated to upholding human rights, democracy and the rule of law. The Council of Europe is an older and wider circle of nations than the 28-member European Union – it includes, for example, Russia and Turkey among its member states – and oversees the European Court of Human Rights.

Source Wikipedia

It’s larger and older than the European Union structures and it has contributed to the development of human rights, democracy and the rule of law. As one of the French MPs observed in yesterday’s debate, a newly independent Malta was eager to sign up as part of the family of democratic states and became a member of the Council of Europe back in 1965. PACE also elects judges to the European Court of Human Rights from among the three nominees that each state sends. It is not just a talking shop, the resolutions and actions of PACE have direct consequences on democratic development – from election monitoring to rule of law campaigns. Where it differs from the EU parliament is that its decisions can never be binding.

Why bother then? Resolutions of the PACE as well as those of other constituted bodies under the Council of Europe – notably the Venice Commission – carry weight not just within the CoE institutional framework but also beyond. The European Court of Justice has referred to reports by the Venice Commission in its jurisprudence as recently as this week in the Commission v. Poland (ECLI:EU:C:2019:531) case where the ECJ found that the Polish legislation reforming its judiciary to be contrary to EU law.

The investigative work that precedes the report and the reports themselves that are then subject to votes to become resolutions by the PACE have been shown to have a strong probative value in international fora. While these do not have an obligatory nature insofar as the recommendations are concerned, they will still carry much weight in procedures such as the EU rule of law framework.

The Debate in Strasbourg

Yesterday’s debate that preceded the vote on the final resolution on Omtzigt’s report was an eye opener in many ways. We have been used to the nationalistic and protectionist rhetoric that Malta government propaganda uses to distract from the matters at hand. The discourse of “traitors” often crops up in such situations when, as the government would have it, “our linen are hung in public for all to see”. The reality is different of course.

Yesterday’s debate was a look into the deficiencies that have become more and more apparent in the functioning of Maltese democracy. The government of Malta would want this to seem as an attack on the nation. As the narrative goes, Malta is a thriving, successful economic miracle that is now being regarded with jealous eyes by others. The death of a high profile journalist, the narrative continues, is only being used as an expedient by the enemies of the state to undermine its success. Not too strangely this is the same kind of narrative spun by autocratic nations when defending themselves in such fora. Such, as we shall see, was the call of the Azeri spokespersons who went so far as to allege corruption in the CoE.

Objectively speaking though, the concern by the CoE and within the CoE for the democratic and constitutional structures of one of its member states is a concern for democracy, rights and the rule of law. Such values concern directly the citizens of that very state that is under scrutiny. Checks and balances for proper representation, access to rights, absence of corruption are all in there in the interest of the citizen. What the report tries to establish is (a) the existence of the problem and (b) solutions thereto.

Let’s be absolutely clear about this: the “problem” is a problem that will eventually be felt by the Maltese people. The concerns raised at the Council of Europe are raised in the interest of the good of the Maltese people. It is anything but an attack on the people. It is an “intervention” and a call to make sure that the interests of the Maltese people are safeguarded.

With friends like these

So the Government of the Republic had more than one option and approach available to it. It could, as it has done since the first international observations of the Maltese legal framework had begun, spin the counter-attack of denial and counter-propaganda. It could have also stood up, taken note of these concerns and taken immediate action to remedy the problem – in the interest of the very people who have mandated it into power.

That the Government of the Republic chose the first option – a defence of counter-attack and spin – is not surprising given its track record. What needs to be made clear is that by taking this position it placed itself in a diametrically opposite position to that of its people. Yes. The position of defence and denial was a first step in admission of responsibility. By denying the existence of a well-documented problem, by rabidly opposing any notion of backsliding of the rule of law, the Government of the Republic adopted the position of the accused who was responsible for all of this.

This was no longer simply a vote on a report. This became the case of “the People of Malta vs the Government of the Republic”.

That responsibility puts the Government at direct loggerheads with the interests of its people, the very same interests that the CoE through its resolution is intending to safeguard. Any doubts that remained at the start of the debate regarding this assertion would immediately vanish once the debate started.

To begin with the government’s counter-resolution aimed at torpedoeing the process was backed by three states who, let’s just say, are not the first states that come to mind when one thinks of champions of democracy. Azerbaijan, Malta’s eurovision douze points buddy, was accompanied by Viktor Orban’s Hungary and San Marino. San Marino might come as a surprise if you are unaware that the micro-state has been acting as a trojan horse for Putin’s Russia and this in not too covert a manner. With friends like these who needs enemies?

Two weeks before the debate, Manuel Mallia mistakenly messaged the whatsapp group made up of Malta’s CoE representatives urging them to make use of the upcoming Mediterranean Leaders summit in Malta to lobby against the Omtzigt report. The government was desperate to shoot down this message – which goes to show how relevant it really is.

When the debate got going the divide became all the more evident. The bleating by Muscat’s emissaries was echoed only by their Azeri counterparts. A pathetic display of dictatorial rhetoric was echoed across their lines shooting the messenger (Omtzigt) and accusing the Council of Europe of using the death of a journalist for whatever obscure political motives their minds could conjure. The irony of being on the same side as the government of Azerbaijan notoriously illiberal with its press was completely lost on the Malta Government delegation.

The speakers from across the political spectrum were unanimous not only in their support for the report but also in their condemnation of the behaviour of Muscat’s government. From the French to the Icelandic to the British (to the Turkish to the Armenian); they all expressed their dismay about the fact that the wonderful nation of Malta and its beautiful people have been brought to this situation. The powerful phrase uttered by Paul Gavan (UEL) echoed around the walls of the chamber ” when in a hole… stop digging”.

No amount of landslide populist electoral victories would erase this logic. And that is where the irony of it is at this stage. The People who were being defended and advocated for in the hemisphere are still, in their majority, blissfully unaware of the dangers of the erosion of the rule of law. While the omnishambles that is the official opposition fails to direct its resources to this gravest of problems it is left up to civil society and the few advocates for the rule of law to carry the flag to these international fora with the hope that something is done before it is too late.

The recent construction crisis in Malta might have been a first flash into the real consequences of rule of law breakdown. Legislative laxity, poor monitoring, government by lobby and general impunity will eventually have their negative effects and the main sufferers are the people. Unfortunately we might have to wait for more such effects before the people get on board of their own side and stop getting wooed by the empty rhetoric of those who are supposed to be managing the country in their interests.

The case continues…

The case of the People of Malta vs the Government of Malta is not finished yet. The next step is a potential reference by a Maltese court to the Court of Justice of the European Union in a case concerning the appointment of the judiciary in Malta. The momentum might be building up for the people to find its voice again. If only the opposition, in the wider sense of the term, would get its act together and unite with one voice. As they have seen there are allies to be found everywhere… the crooks are beginning to be outnumbered.

Categories
Brexit Constitutional Development

Parliament Strikes Back

Order to chaos

Speaker Bercow stood up and made a statement. He did so from his position within an old and respectable institution and what he said was firmly embedded and rooted in tradition. It was not tradition for the sake of tradition but rather the kind of tradition that forms part of an ongoing process of institutional development. The kind of tradition that gives direction, certainty and clarity.

Founding his position on a strong 415-year old rule fortified by precedent Bercow explained to the gathered members of the House that there could be no new meaningful vote unless there is a ‘new proposition that is neither the same nor substantially the same‘ as the previous ones. Erskine-May, that biblical volume(s) of reference on parliamentary procedure, was never intended to gather cobwebs; rather it was intended to be at the throbbing heart of an institution that has oftentimes been described as “the mother of all parliaments”. Rather than bellowing empty air, Bercow was the metatron – the channel of the divine voice – and in this case the divinity was the rule of the land that holds everything together.

I have often thought that it is a blessing that of all the EU Member States it was the United Kingdom that would go through the test phases of the process of leaving the European Union. As constitutional and representative mechanisms go there could be no better testing ground for the first time enactment of a multi-dimensional constitutional disentanglement to take place. The institutional self-awareness built over centuries of development and precedent should be able to withstand even the worst assault of today’s popular and populistic politicians.

That the ultimate distillation of all that is parliamentary representation would be severely put to test was a scripted inevitability. Once you had a parliament in session that overwhelmingly was against Brexit in principle but that was also tasked to go through the motions of trying to transform “the people’s will” (17 million reminder) into reality then it was clear that there would be a constant struggle to simply understand what the sovereign will ultimately was. I have dealt with one side of this conundrum in the post Unpopular Representation.

Add to this formula the internal party splits, the devolved interests (particularly Scot and Northern Irish) and the macchiavellian manoeuvering that would take place at a national level as well as the understandable negotiating limits with the European Counterparts then you would hope that as much as possible the institutional underpinnings of the process remain such as to guarantee the full purpose and functioning of a parliamentary democracy.

Bercow’s ruling ostensibly defends parliament (mostly backbenchers) from the actions of a “bullying” executive. May’s third attempt at pushing the “meaningful vote” (MV3) can not happen because it would be the third time too many of trying to get her own way by hook or by crook. The symbolic gesture of Bercow’s announcement is much more important than the practical consequences. I say that because there is always a workaround that is possible for May however any workaround that results in forcing the meaningful vote notwithstanding the Speaker’s warning risks taking on the wrong meaning of meaningful.

It is facile to impute motive to Bercow’s ruling. Truth is that the rule existed before Bercow. It has a purpose. In the wider picture we can see it as a safeguard against deception. An executive that attempts to “weaponize” time to force the hand of parliament is suddenly caught with its proverbial pants down. This could in effect be seen as a first step of parliament fighting back after it had lost a motion to wrestle the process from May’s hands earlier last week.

Returning to the issue of delegated and trustee representation we could see this kind of ruling as another pressure valve that sends a clear signal that on this particular issue – and unless some meaningful change is brought through (highly unlikely given the noises coming from Europe) – the matter might be slowly slipping out of the hands of the elected representatives themselves.

If they really want to fulfill their centuries old function of popular representation then they might want to realise that the mother of all parliaments is due a consultation with its people. If only to see whether their original mandate still stands given the new facts and circumstances that have arisen since the last popular vote.