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Euroland Politics

Tonio’s Non-Metamorphoses

Was it a case of “Veni Vidi Vici”? Did the Commissioner designate “sail-through” the grilling that never was last Tuesday? Has the dinosaur really convinced the trough-addicted pigs of his inveterate submission to the constitutional bible of this “sui generis” system of state collaboration? There was a telling moment during the marathon session when Tonio Borg addressed his interlocutors and reminded them that in politics “perception is important”. Indeed. Perception nowadays is a huge part of the pie and politicians are as much made or broken by the creation of a hash tag (that’s twitter talk for a subject such as #BorgEU) than by anything else.

The speed with which media will deal with a story – compounded by technological Chinese whispers – not only means that a media avatar of a politician can be created with uncanny expeditiousness but also that such avatar might morph in accordance to the predominant push of whoever is throwing the most information into the system. Tonio Borg was contemporaneously both a victim and a victor of this kind of phenomenon. The time it took Borg to study the files and dossiers relating to his new “portofolio” (sic) the liberals-in-hiding got working with their European counterparts in order to  fill them in on the “true nature” of Tonio.

What “true nature”? Well they referred to Borg’s handling of immigration affairs, to his position on IVF and on divorce, to his consorting with the Gift of Life movement and to his previous stances on homosexual rights. The spiel essentially that Borg was an uncompromising imposer of conservative values and that his political activity clearly reflected this stance. The link to the Health and Consumer portfolio was not exactly tenuous and to put it mildly there WAS a point to be made. The point though was meant to be and should have been limited to the capacity of Tonio Borg to perform his duty as a Commissioner independently of his views – unlike his performance in Maltese politics where he had no problem mixing the two.

It’s the EU Law, Stupid

And this is where Tonio Borg built his defence. It was obvious from the start who had been involved in prepping the Commissioner designate. For all his protests that he was not “thinking as a lawyer” I’m prepared to safely bet that many a night was spent in the company of Simon Busuttil and a former EU Ambassador. Nothing wrong there either. The most telling moment was Tonio’s slight hesitation in reformulating the classic description of the European Law system – many a law student would have recognised that brief moment of panic when the explanation that was just at the tip of your tongue has rushed away only to return in the form of a rehash of the original definition “in your own words”. Hence Tonio and his version of “a sui generis system of international law and an agreement between sovereign states”. (He could also have quipped a happy 50th birthday to the Van Gend & Loos case while he was at it – much more important than the International Day of Courtesy in this part of the world).

The prepping was necessary because Tonio had to use every trick in the book (better known as “the treaties”) in order to justify his speedy metamorphoses from Maltese politician to European Commissioner. In doing so he highlighted the most difficult barrier that Europe faces with regards to social harmony. For while economic barriers have come crumbling down at a faster rate than the Visigoth invasion of Rome, social mores have found the borders of old to be less permeable. Subsidiarity that great concept first brought to the world in a Papal Encyclical came to the rescue and suddenly Tonio was raising the Commissioner’s equivalent of “taking the sixth”.

You’ve seen it all so no need to dwell on it. Dr Borg could get away with packaging his national performance in a tight corner by stating that he can not and will not be able to act similarly at an EU level because the rules that apply there are different. So for the sake of argument Tonio Borg’s catholic values will have to be put in abeyance whenever he is dealing with the Commission programs to promote the use of contraceptives. He claims not to have a problem with that and I guess that his conscience will deal with the “superior orders” dilemma in its own time.

Those Shoddy Liberals

Tonio Borg did not metamorphose. He remains the same man committed to the same principles (save maybe the gaffe regarding the gender quota ) a sudden rush of arse-licking could be a most simple explanation. Or even euphoria experienced with the sudden rush of endorphins at the realisation that the Liberal Inquisition was really conducted by a bunch of pussy-footed, ill-informed bungling radicals. That last point actually really got to me. For here we were – as my friend David Friggieri puts it – with a representative of the conservative parties (yes plural) in Malta in the dock and with no real prosecutor asking the real questions.

I’d have asked a simple question to Dr Borg. What does he think of the fact that a person who is a doctor in an EU country where abortion is legal and who performs a legal abortion on a Maltese woman (who has willingly travelled to his country and consented to such an operation) is criminally liable in Malta? Simple really. In case you are wondering it’s Article 5(1)(d) of the Criminal Code in combination with article 241(1). Incidentally once said doctor is condemned to a term of imprisonment for a term of eighteen months to three years, the willing patient also becomes liable to the same punishment. But I guess that’s OK because she’s Maltese anyway.

We did not get these questions. We got questions that were obviously fed to MEPs by the type of shoddy activists who base their accusations on hearsay and conspiracy theories rather than facts. How else do you explain that Dutch liberal’s question about contraceptives in Malta that was an invitation to Tonio Borg to eat her alive (which he did with the usual classy rhetoric of a PN politician who knows he has the upper hand).

A Metamorphoses?

In the end we have what the French call a “match nul” – which means a draw but the word “nul” also means “useless”. At an EU level Borg might not really “sail through” when the voting time comes. The ALDE (liberals) and European Greens have unsurprisingly called themselves out of any support vote – they’ll be voting against. The Popular Party will back him (and also heap lauds and praise that will be hyped in the relevant media). The socialists might dilly-dally for a while and make Tonio Borg (and Tonio Fenech and Simon Busuttil) sweat a little bit more but in the end they might just give in and vote him in after having asked for more “written commitments” from his part.

Tonio Borg did not really metamorphose in the end. His was no apostasy before the baying house of atheists and agnostics. This was more of a modern Give Unto Ceasar kind of business that left many of us Maltese questioning the use of a two-tier Europe when it comes to social rights. Yes the liberals – particularly the Maltese liberals – were bitten and if you are really fond of the term then they were “defeated”. Their defeat lies in the lack of organisation and lack of clarity. It lies in the lack of identifiable leaders who could take the battle to the next level. It lies in the fact that Maltese politics rarely translates into conservative vs liberal when push comes to shove.

That is why Joseph Muscat feels comfortable standing up in parliament without any hint of irony on his face and saying “I’m a liberal” while at the same time sanctioning the PN position on embryo freezing. Joseph will continue to woo the liberal fold that have elsewhere been described as the “ex-stricklandjani” so long as his credentials are not questioned and so long as he can be contrasted to the dinosaurs that have long camped in the mainstream parties.

Unfortunately for the silent liberal movement in Malta change will never come from within any of the two parties. So long as we continue putting our eggs in their basket they’ll be happy doing what they do best – fuck all. Because as we know so well : “if we want everything to change, then everything must remain the same”. And long life to our next EU Commissioner !

Pictor has scarcely set foot in paradise when he found himself standing before a tree that had two crowns. In the leaves of one was the face of a man.; in the leaves of the other, the face of a woman. Pictor stood in awe of the tree and timidly asked, “Are you the Tree of Life?”

Read also today’s article in the Times by Ranier Fsadni.

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6 replies on “Tonio’s Non-Metamorphoses”

Since my recollections of section 5(d) may have gone rusty by the ravages of time, I would like an explanation on how you conclude that this section covers abortions committed outside Malta.

For the benefit of other readers, I am reproducing this long winded and convoluted section –

“against any citizen of Malta or permanent
resident in Malta who in any place or on board any
ship or vessel or on board any aircraft wherever it may
be shall have become guilty of the offences mentioned
in article 54A or of an offence against the safety of the
Government or of the offences mentioned in articles
CRIMINAL CODE [CAP. 9. 7
133, 139A, or of the offences mentioned in articles 311
to 318 and in article 320 when these are committed or
are directed against or on a state or government
facility, an infrastructure facility, a public place or a
place accessible to the public, a public transportation
system, or of forgery of any of the Government
debentures referred to in article 166 or of any of the
documents referred to in article 167, or of the offence
mentioned in article 196, or of any other offence
against the person of a citizen of Malta or of any
permanent resident in Malta;
For the purposes of this paragraph:
Cap. 217.
“permanent resident” means a person in favour of
whom a permit of residence has been issued in
accordance with the provisions contained in article 7
of the of the Immigration Act;
“offence against the person” includes the offences
mentioned in articles 86 to 90 and in articles 211 to
205;
the expressions “state or government facility”,
“infrastructure facility” and “public transportation
system” shall have the same meaning assigned to them
respectively by article 314A(4);
(e) against any person who being in Malta –
(i) shall have become guilty of any offence under
article 87(2) or articles 198, 199, 211, 214 to 218,
220, 249 to 251, 311, 312, 314A, 314B, 316 or
317 when committed or directed on or against
the person of a protected person or to the
prejudice or injury of such person or likely to
endanger the life or to cause serious injury to the
property, life or health of such a person, or in
connection with an attack on any relevant
premises or on any vehicle ordinarily used by a
protected person or when a protected person is
on or in the premises or vehicle; or
(ii) shall have committed any act which if
committed in Malta would constitute an offence
and such act involved the use of a bomb,
grenade, rocket, automatic firearm, letter bomb
or parcel bomb which endangered persons,
although the offences referred to in this paragraph
shall have been committed outside Malta”

The doctor who performs an abortion committed outside Malta is, in my humble view, only liable if the abortion causes physical or psychological harm to the Maltese woman.

David. For my sins I will try to do the impossible…. answer one of your non-questions.

First of all, if you have to cut and paste in order to engage in your usual exercise of denial then do format the pdf bit. You seem to want the cake and eat it by the way. Knowing that you are four square against abortion helps me in this case since I am fully aware of where your prejudice lies.

Now. Given that article 5(1)(d) of the Criminal Code includes clearly the phrase “or of any other offence
against the person of a citizen of Malta or of any permanent resident in Malta” we are left with what in legal circles is called a moot point.

Why is it a moot point? Well here is the gist of it. First of all you either have a crime consisting in the carrying out of a miscarriage or you don’t. Does that crime exist in Malta? Yes. Article 241. So a Maltese doctor terminating a pregnancy in Malta on a Maltese woman (or foreign if in Malta) is guiolty of the crime outlined in 241(1). The consenting patient is also liable to punishment under 241(2). I guess we agree there that this is the “anti-abortion” provision in Maltese law. So far so good.

Now does the same crime subsist if it is carried out on the person of a Maltese national abroad? “Aha” you would say. “But this is not a crime carried out on the person of a Maltese national abroad because…” and wait for it (how about a drum roll?) …” the unborn child is not a person and consequently has no rights“. In your own words.. “The doctor who performs an abortion committed outside Malta is, in my humble view, only liable if the abortion causes physical or psychological harm to the Maltese woman.” Oh the humility.

So yes. The moot point could be easily solved if we took that point of view. Juridically speaking then, in accordance with YOUR interpretation, so long as a PERSON is not involved and the miscarriage involves an unborn child then there is no crime.

Of course it is up to you to live with this hypocritical contradiction. A bit like Commissioner Borg really. Because what it boils down to is simple. The right to terminate pregnancy legally exists abroad and a Maltese citizen can go abroad and obtain such a legal termination (always by your interpretation). The same action performed in Malta carries a punishment of 18 months to three years in prison. The Savonarolas of our island will happily back your logic behind the law because it allows them to live in the fictitious fantasy of two weights and two measures.

On the other hand jurisprudentially I would tend to argue that the intention of the law was to prevent termination of pregnancy in every case. 5(1)(d) could be argued to apply in that sense. It extends the jurisdiction of Maltese law for criminal acts committed on pregnant women because unless you live in a blinkered world the termination of pregnancy involves the person of a Maltese citizen: the mother of course who is not exactly the most passive participant in the scenario. If we had to attribute any intent to the legislator when enacting the relevant provisions we could hopefully assume that the interest behind the crime is protecting the mother from the dangerous effects of termination of pregnancy as well as protecting the life of an unborn child.

By literally interpreting the provisions in question, persons like yourself expose the blunt hypocrisy of the conservative crowd. Gleefully, the very same persons who argue for the entrenchment of the “Gift of Life”provisions in the constitution would point out what they assume to be a lacuna in the law ” Yes, but the unborn child is not a person, yet”. They also chose to ignore the interest involved with regards to the well being of the mother as the very current Irish case has shown.

I for one am thankful that my interpretation has never been used to prosecute a mother who chooses to opt for services abroad. Nor has any foreign doctor ever been charged – extradition would not be an option since the crime would also have to be a crime in the extraditing country.

The law needs modifying and improvement – at least to bring it up to scratch with health considerations and those of specific circumstances. Unfortunately with the current interpretative trends within our courts the danger that someone gets attracted to my hypothetical style of reasoning is always around the corner.

I thank you for your non-answer. In fact I wonder how non-answers can be so longer than answers. I did not use the pdf version as this involves the whole criminal Code.

The present Irish case is irrelevant as the facts are unclear and we know the mother died after the end of the pregnancy. In fact the Irish government wisely did not base its views on the Indian family’s allegations but set up a commission to establish the facts. http://blogs.telegraph.co.uk/news/timstanley/100189912/irelands-abortion-laws-we-need-to-get-the-facts-straight/
http://www.irishtimes.com/newspaper/opinion/2012/1117/1224326702610.html

As usual you resort to the trend to indulge in illogical, ad hominem arguments, expressions and labels as conservative, Savonaraola (as far as I know he was a rebel), exercise of denial, hypocracy, and others.

Now if a criminal law provision is a moot point, the restrictive interpretation should, in my view, apply (in dubio pro reo). Besides laws are generally territorially limited and extra-territorial application must be considered to be an exception.

So the point regarding my views in favour or against abortion is and should be irrelevant to the legal interpetation of the law. A contrary personal view may lead to interpreting the law in line with this view, however I believe the law should not be subject to any personal bias.

You accuse me of a literal interpretation. Why is interpreting literally criminal law or any other law (especially fiscal law) for that matter necessarily wrong? (in claris non fit interpretacio). I still recall my late criminal law professor emphasizing the importance of the “words” of the law. Besides the law here states that the offence must not only be againt a person but the victim must be a Maltese citizen or a permanent resident in Malta. Clearly the foetus or embryo is not, at least as yet, a citizen or a personal resident. Can the mother be the victim and the guilty party in the same case? According to Maltese criminal law termination of pregnancy is a crime against the person. Is the person the mother or is it the foetus or maybe both?

Probably the law enforcement authorities do not adopt your interpretation and therefore no prosecution has ever been been made in line with your interpretation.

There you go David. You are right. There is no crime of termination of pregnancy committed abroad because we must interpret the law restrictively and of course an unborn child is NOT A PERSON AND HAS NO RIGHTS. Your interpretation not mine mind you.

Of course you are still left with trying to explain to yourself (and feel comfortable with the idea) that locally committed terminations of pregnancy are criminal but NOT BECAUSE THE UNBORN CHILD HAS RIGHTS but simply because it is a doctor, on Maltese soil, operating on a consenting Maltese woman. The sum of these facts of course no longer applies abroad because we suddenly get a bout of restrictive interpretatis. Remember David that in Malta whether or not the woman is harmed is irrelevant – the act of termination of pregnancy suffices.

So yes. You are endorsing a hypocritical position that is not only contradictory but also undermines the premiss that you would love to be able to posit and entrench in the constitution – that an unborn child has rights. No amount of haggling and playing with words can get you out of this. Which is probably why confession was invented. It allows you to rest your conscience although all forms of logic are yelling in your head that you are wrong.

Sellili ghal father.

Well abortion is a criminal offence in Malta as it is stated so under the criminal law. In my view abortion outside Malta under Maltese law is not a criminal act as it is not a crime under the criminal law as there is no offence against a Maltese citizen or permanent resident.

We know according to the rules of prologomena that laws (like languages) vary in time and space. This obviously does not apply to moral arguments. Morality should be universal, some laws are universal but many aren’t. Naturally one can argue on the point of de jure condendo in Malta and abroad but this is a different issue. However simply repeating ad nauseam ad hominem arguments and confusing legal interpretation with morality/conscience issues just betrays a lack of logic and a paucity of legal and moral arguments.

Qed tgħid għal Father Alfred? Daħal bħal Pilatu fil-kredu. Inservik iżda reġa’ ġej f’Diċembru, kien hawn jumejn ilu dan ix-xahar.

Gotcha. “abrotion outside Malta under Maltese law is not a ciminal act as it is not a crime under criminal law”. You see david… the contradiction you back defies logic and defies definition. Abortion is either “an offence against the person” under Maltese criminal law – and therefore is illegal wherever it is carried out, or it is not. As I told you from the beginning you cannot have the cake and eat it.

It’s prolegomena by the way and it is not about the variation of law in time and space but about the APPLICATION of law in time and space. Morality should be universal? Whose? Yours? Or the morality of the 100 000 protesters against gay marriage (yep I saw your proud post on facebook)? It’s not ad hominem when I point out how your bias is obfuscating your judgement. Thankfully though you are not a judge in a court so the most damage you can do with your crusades is to stalk this blog (and thankfully others – giving me a break every now and then). That’s my last answer.

And oh, I was not referring to Fr Vella but to whoever you chose to inflict your confessions upon. Sahhiet. This is my final answer and this thread is closed much to your chagrin.

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