This honourable judge

Life on the island past the electoral truce has been anything but boring. There are times when the concept of boredom can begin to seem to be an unattainable desirable bereft of the negative connotations that normalcy and monotony might normally carry. These are the kind of times best described as “interesting” in the Chinese curse sort of way. Just as the political parties seemed to be settling into a faux festive period “truce” from the campaign that had never begun we get a wave of news items that keep tongues wagging, the media reporting and above all the parties a-busying.

Top of the list of interesting news items – beyond the extensions of Dalligate and the mafia style executions – is reserved for the judiciary and in particular for two of the members of our judicial bench who are in the eye of the storm. Judge Farrugia Sacco is in the throes of a renewed battle for his seat having had a new attack from the IOC – determined to take steps against those of its members who exposed their institution to the risk of disrepute. Another Judge, Ray Pace, is now in prison awaiting trial with the serious accusation of bribery pending above his head.

It is an ugly period for the legal branch of our separated powers and the two stories have thrust another dagger into the already weak levels of faith that the judiciary enjoyed with the general population. Trust and faith in the law is fundamental within a democracy and this kind of weakness seriously endangers the workings of our constitutional mechanisms. That is also the basic reason why the constitutional checks and balances that should come into play must work with clockwork perfection in order to ensure that the very foundations of the legal system are still intact. Public trust is the one and only priority.

Farrugia Sacco

Which brings me to the role of our political parties. We first had the Farrugia Sacco debate. In this respect the “Ceasar’s Wife” argument that I had touched upon in the Dalligate saga comes back with full force when considering how to proceed with a member of the bench who has become embroiled in such an issue. The key concept in the “Ceasar’s wife” principle is the idea of “having to be above suspicion”. This is not a question of actually being guilty but of having to appear beyond the mere suspicion. In this light, and without even making any further considerations on what actually went down in that hotel room where the Olympic tickets were held, Judge Farrugia Sacco should have long tendered his resignation in order to deal with the ghosts and suspicions peacefully and individually without carrying this baggage around in his role as a judge.

Is it so straightforward? Yes. Did we need the Ombudsman writing to the President? Not really. Even before the Commission for the Administration of Justice was involved Judge Farrugia Sacco should have done the right thing of his own accord. By refusing to do so he should have forced the hand of our politicians in parliament who are the guardians of an important constitutional mechanism with which they have been entrusted: the process of impeachment. Which is where my first beef with Joseph Muscat arises. His position on the Farrugia Sacco issue is that we must wait for the Commission for the Administration of Justice to do its work before actually impeaching the judge. Like hell we do.

Joseph Muscat’s attempt to distinguish between politics and the judiciary is an amateur approach to our constitutional politics and a dangerous situation whereby the leader of the opposition is openly reneging on his DUTY towards citizens to act as ultimate guardian of our constitutional rights. A judge in Farrugia Sacco’s situation loses his legitimacy to sit in open judgement of others in no matter what area of law. If he cannot see that of his own accord then it is up to the politicians to act as guardians of our prerogatives as citizens. Once again Muscat is doing what he does best – acting as Pilate and washing his hands of a decision that he is duty bound constitutionally to guarantee. Weak.

Pace

The Ray Pace matter seems to have brought Muscat to his senses. Suddenly the judiciary is no longer a matter for the Commission for the Administration of Justice. Admittedly the case seems to be more open and shut given the context though there is no reason to distinguish between the two when it comes to the Ceasar’s Wife test. In this case the issue of whether Ray Pace is above suspicion is more glaringly obvious – the arraignment and arrest make a decision in this respect all the more straightforward.

What did impress me was the attempts – as of early morning – by Evarist Bartolo to turn the issue into a political battlefield. He posted a link to a report of the arrest on facebook with the words “Ara f’hiex gabuh pajjiz” (Look what they have brought the country to). Incredible. To begin with it is obvious to any free thinking individual that when appointing a judge you can never foresee his turning to the dark side (to use Star Wars terms). How Ray Pace’s alleged actions are imputable to the current government and its policies beggars belief. Sure enough Evarist deleted any comments I made on the particular status – no worries I have snapshots on my iPad (once bitten, twice shy – right Jeffrey Pullicino Orlando?).

Thankfully the Labour party could not do otherwise than agree to an eventual impeachment of Ray Pace. Muscat did add that a new Labour government would review the methods of appointment of judges. No harm there right? Definitely not. Given that a rebel MP recently made it part of his personal agenda to point out inconsistencies in the field of the judiciary it should not come as too much of a surprise to any of us that sooner or later Labour would jump on that particular part of the wagon. A knee-jerk reaction it remains though and I very much suspect that we are in for a bit of patchwork and tweaks that would still accomodate the PLPN manner of appointments.

And here is another crux. I posted a status on facebook pointing out that given their record Labour would best reform the system by staying out of the appointments system. Of course the world is full of literal minded partisans who would be eager to point out that the same system that gave us Farrugia Sacco (Labour) and Pace (Labour) also gave us Arrigo (Nationalist). Which makes it allright then does it not? My point was meant to be sarcastic – Muscat’s party does not have much of a record to go on when it comes to appointments and the fact that the nationalist party too has had its fair share of nutty appointments is neither here nor there.

Judiciary

Do you remember how recently a government proposal to increase salaries for the judiciary was shot down by a labour party? The Labourites had had a sudden attack of “consistency” by arguing that if the MPs (political) could not get a raise (will we ever forget the 500€ raise?) then neither could the judges and magistrates (judiciary). Because obviously the Muscat idea that politics and judiciary should not be mixed did not apply at the time.

There seems to be a general consensus, even within the practitioners in the field, that our judicial system is due a major overhaul. The criteria for judges and magistrates appointment remain the number of years in practice. When a non-court practitioner was once proposed for the bench, court practitioners were up in arms claiming that his years of practice did not count – an odd reason if there was one. From what I can gather the conventional way to become a magistrate/judge until now has been to manifest your intention in the right circles and hopefully… if you were insistent enough and of the right hue… you would get your turn eventually.

The system has produced many a good magistrate or judge but it has flaws. It is haphazard and based on the wrong criteria. I am also told that in some cases what was needed to get onto the bench was a track record of an attempt at running of parliament. Once you got your brownie points in that field then you would have proven loyalty and a position on the bench would follow. Again. It is not the rule and is not across the board. The problem lies in the lack of clarity and in the lack of modern, clear criteria as to why a person should make it to the bench.

In other nations, like Germany, you actually study to get to the bench – not to become a lawyer first. Interpreting and applying the law requires a different set of skills than pleading before the court. Academic knowledge, logical and linguistic skills as well as good analytical methodology and organisation form part of what could be a key set of indicators in the future. A place on the bench should not be a prize for time served – let alone loyalty.

The kind of reform that is required is the real area where politics and the judiciary should definitely not merge. The legal world in Malta is not in a nice state. The kind of reform that is required is a big learning curve across the board from the courts, to the faculty of law and its product, to the support services to the long arm of the law that are the police. Education is a key factor – education to start with and education in the continuing sense.

Unfortunately I have to end this long post with the usual pinpointing of the heart of the problem. Our legal system has also been affected by the rot that is the PLPN method. Appointments and laws through the years are made with the parties and their survival in mind. It is incredible that in this day and age we can think in terms of “their” or “our” judge. It is mind boggling that judicial appointments have to be thought of in this manner and the legal community has much to feel at fault about in this respect. I am not unaware of the irony that our parliament has a heavy representation of lawyers within it and that this being the case it will be even more difficult to find people prepared to think out of the box.

When Muscat wakes up to the reality of the matter and stops thinking in populist terms, when Gonzi’s PN quit the faffing around and decide to grasp the bull by the horns I should hope that a huge debate will ensue and that within an appropriate forum, with the appropriate experts, the much needed reform of our Judicial & Legal systems is embarked upon with earnest.

Remember. We are all servants of the law, that we may be free.

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Alea Iacta Est

The die is cast. We now have an election date and fate (coincidence?) has it that the election date is less than a week away from the Ides of March (15th). This was no collective conspiracy to backstab the leader though. In a way the stage had long been set, the tickets for the performance had long sold out and on the day you half expected the leader to bare his chest in readiness for the plunging daggers. This was not the downfall of a government but the collective suicide orchestrated in such a manner as to obtain the maximum dramatic effect.

Lawrence Gonzi’s party chose the time, date and manner when to call it a day on the government. There is no doubt about that. The choice was strategic and the dramatic effect was stupendous. Do not forget for one minute that this is not a boxing match that can be won on points. This was an all out battle that has dragged on for years now. Franco’s rebel activity was a catalyst that mixed with the spice (or opiate) of the inevitable negative vibes that the Labour party has consistently chosen to shower. When the bills are added up though this is the legislature that has lasted for the longest time since KMB bled his own legislature’s life to the last available hour. Franco did not pull the plug – Lawrence saw to it that the people knew that come what may, tonight we would have an election . HE CALLED TIME.

We had the budget and the plan, and for extra dramatic effect we had the new member of the PN leadership team. We did have the panicked signs of the various “soft openings” of projects that have been long in the waiting but the trick was in the economic plan. Gonzi saw Muscat’s weakness. There was no way that Muscat’s team could come up with any deliverable that was as effective as a strong economic base. Forcing Franco to vote on the day when his vote was most needed was important. Franco would have to carry that responsibility on his shoulder. Ditto Muscat. Muscat of the contradictions – a budget to keep but to vote against.

Now the audience would have to watch. It would have been made to sniff the promise. It would have been shown the goods, the presents below the Christmas tree (not just short term promises but a plan for the economy) and then it would be told that the big bad guys have come and taken them away. Those whose votes are still not decided (that 29% in the polls) would then be made to watch the carcades and celebrations of the Labour supporters who are itching to get their turn in the driving seat – come what may, because 25 years have hurt and because yes, the economy may be good, but we don’t like the arrogant clique.

That was the point of the melodrama. The budget and the budget speeches built up the hero and his image. Yes, Gonzi said, “ha naghmilha tal-bravu” and he sung the praises of his own successes. Then he bared his chest and let his detractors shoot him down. Muscat was to be pictured as the power-hungry wannabe keen on becoming the youngest prime minister. The carcading reds would be a sign of things to come.

Already a quick look at the TV stations begin to give out these signs. ONE TV’s Cini/Musumeci are already divvying up the PBS pie with the resurfaced Grimas. A very biased PBS is digging into Cassola’s AD – lest anybody even consider the small parties. And NET… well what do you expect?

The die has been cast. We now have the farcical reflection period before the campaign. A period during which the people will be made to imagine a labour government. Then we will kick off what promises to be the ugliest campaign for a long time. Labour has to roll up its sleeves and start unravelling its plans.  The nationalist party will be dispatching its proselytising team to the grocers of the nation.

I don’t know whether to be glad or sad that my flight out of the country is planned for the 7th January. Coincidence? Fate?

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Not Simon Busuttil

Much is being made by the nationalist party and its faithful supporters about the goodwill that the election of Simon Busuttil to vice-leader has brought about. We have heard plenty of words about the change that Simon is supposed to bring about to the nationalist party – presumably the same mistakes of the past will not be committed again, particularly in the arrogance department. Presumably (again) the nationalist party will take care before fielding candidates whose ego will barely fit in one seat of our hallowed chambers in parliament.

With these thoughts in mind I found this video doing the rounds on social networks rather intriguing. It’s a perfect picture of “old vs new” – hosted on a labour station of course – a clear effort to expose the warts (past and future) that the PN carries. And they seem to have been quite successful in doing so (forget the title chosen by the uploader – I don’t think any one of the two egos was comfortable here).

I wonder what Simon makes of this (witt rispekt).

 

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Oħroġ il-għaġeb

Illejla, f’dawn in-naħat tal-Ewropa it-tfal ġa bdew jaqilgħu ir-rigali. Fil-Lussemburgu, il-Lorena u l-Alsazja għada jasal San Niklaw, akkumpanjat minn Pietru l-iswed. San Niklaw jew Sinterklaas (għalhekk Santa Claus – u QATT KrissmissFader) iqassam ir-rigali u Pietru l-iswed iqassam il-ħelu. Din it-tradizzjoni qatt ma waslet Malta u aħna bqajna bir-regola tal-milied fil-ħamsa u għoxrin u r-rigali lejliet. Għadek tisma lil min jgħid li r-rigali iġibhom “il-bambin” imma anki t-tradizzjoni ta’ Santa Claus qabdet avolja f’pajjiżna jiġi għoxrin jum wara li jiġi hawnhekk u fil-pajjiżi il-baxxi.

Sadattant bħalissa qed jintramaw il-presepji. Tradizzjoni mill-isbaħ li tinvolvi ukoll sengħa. Il-pasturi li bihom jiżżejnu il-presepji huma bosta iżda hemm dawk il-bażiċi li jiffurmaw il-qofol tal-presepju. Ma jistax jonqos li jkollok il-familja ta’ Ġużeppi u Marija imdawrin bil-ħmar u baqra (għas-sħana qalulhom – ifhem id-dawl kien ġa jiswa dak iż-żmien) u ikollok l-imrieħel tan-ngħaġ bir-rgħajja, l-islaten Magi u oħrajn. Malta ikollna ukoll pastur speċjali – l-għaġeb. Is-soltu konna inqiegħduh fuq il-maxtura iħares imbellaħ lejn is-sema. Jistagħġeb bl-egħġubijiet ta’ dak il-lejl u jirrapreżenta ukoll il-faxxinu tal-mistiku u l-mhux magħruf.

Din is-sena f’lejliet San Niklaw ftakart fil-ħruġ ta’ l-għaġeb. Hekk kif il-partiti għadhom kif qablu f’moratorium għal waqt iż-żmien tal-festi se jħalluna b’xi egħġubijiet minn tagħhom qabel ma jinżel is-siparju fuq is-sena u ngawdu il-festi tal-Milied. Il-vici Kap il-ġdid tal-PN kellu xi intervisti. Ma kienx biżżejjed li l-kollegi tiegħu il-Prim Ministru u dak tal-Finanzi għamluha ta’ San Niklaw u Pietru l-iswed xi jiem qabel u qassmu xi rigali qabel il-milied. Kellu jiġi hu ħa jisraq ftit mix-xena u jxandar mal-erbat irjieħ dwar l-egħġubijiet u l-bidla li kienet ser iġġib il-wasla tiegħu.

Suppost kellha tkun priedka ħelwa, b’dak il-wiċċ ta’ l-abbatin jiddeklama minn fuq il-pulptu misluf f-nofsillejl “Aħbar ta’ ferħ jien ser nagħtikom… illum twieled partit ġdid.” Minflok qaluli li l-ewwel impressjoni hija ta’ arroganza imġedda. Arroganza tat-tip li “tagħna kollox tajjeb u tagħhom xejn sew”. Forsi smajt wisq minn dawk li ma jridux jafu bil-bxara it-tajba imma jidher li l-ewwel ħarġa tal-għaġeb ma marritx kif suppost.

Imbagħad għall-par condicio nazzjonali illejla se jintrama pulptu ieħor sabiex egħġubijiet oħra jitwasslulna mill-ogħli tal-għerf ġewwa kamret il-poplu. Hemmhekk il-Kap Laburista se jispjegalna kif ir-rigali li ġabu San Niklaw u Pietru l-iswed tant għoġbuh li se jżommhom u jagħmilhom tiegħu. Se jgħidilna ukoll fl-istess nifs kif minkejja dan se jagħżel li ma jibgħatx Thank You Note u anzi jitfa vot kontra… Oħroġ il-għaġeb imma hawn min jaħseb li din ukoll hija koerenza.

Mhux ta b’xejn li pajjiżna għandu din il-politika li tixraqlu. Inħobbu nistagħġbu bix-xejn qisna erba mitt elf pastur mitluq fuq il-maxtura b’ħalqna miftuħ imbellħin b’dak li l-għajnejn jaraw iżda li s-sensi le jifhmu.

Illejla lejliet San Niklaw se jinħareġ il-għaġeb. Gloria in Excelsis… u għada jisbaħ ukoll.

 

Nota> Ir-ritratt huwa meħud minn presepju li ittella’ din is-sena bix-xogħol siewi ta’ membri tad-Diviżjoni Maltija tat-Traduzzjoni fi ħdan il-Qorti tal-Ġustizzja Ewropea bil-għan li tiġi irrappreżentata parti mill-kultura Maltija u li jsir ġbir għall-karita.. Kull xebh għal għoġġieba vera huwa purament każwali.

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Ex post – Elephants and the constitution

A couple of days back (28th November) I had uploaded a post discussing “the elephant in the room” that would be so conspicuous during the budget debate. The elephant in question is of course Franco Debono’s not too veiled threat to vote against the budget and thus bring about the end of GonziPN’s term in office. Having seen his last hopes of reconciliation fritter away with Simon Busuttil’s volte face on the matter Franco has been in Armageddon mode ever since.

One of the arguments I made in that post referred to the position(s) taken by Joseph Muscat – and this was before his jaw-dropping post-budget assertion that Labour is the best party to put Tonio Fenech’s budget into practice. Muscat’s appropriation of the PN government’s financial plans was to me the final straw that definitely ruled out any vote for Labour (not that there was much hope there but I had left an open door waiting for a very, very convincing argument in that respect – needless to say that argument never turned up). Muscat’s actual position on the budget notwithstanding I had stated:

If Muscat were half the statesman he wishes to be then he would be operating differently. The interest of governance and governability would trump his greed for getting into government. He should not be reinforcing Franco Debono and that parliamentarian’s hara-kiri. At the end of the day the election is months away in any case – budget or no budget. Muscat could use this opportunity to pull the carpet from under Franco’s legs and be in command of his own party’s destiny. His best move would be to instruct two or more of his MPs (how many are necessary) to abstain in the budget vote. The budget would pass, without the vote of labour who would go on record as having voted against.

As far as I know (and I’m not particularly keen on this calling dibs business) this was the first time that this theoretical approach was mentioned in the media (printed or otherwise). Last night though a “Guest Post” was up on the Runs discussing the very idea though it was presented as “A rather bizarre rumour is doing the rounds.” The abstention, according to the rumour, would no longer be from one or two of Muscat’s MPs but Joseph Muscat himself. Guestposterontheruns proceeded to rubbish the idea:

Should this scenario come to pass, Labour would once again show that it has turned inconsistency and lack of principle into an art. How can a prospective prime minister and party leader vote one way while his entire party vote for its antithesis on what is essentially a vote of confidence in this government? How can the entire Opposition vote to bring down the government while its leader votes to keep it in place? How can the party leader himself vote against the party whip?

The anonymous writer – presumably fearful of showing her name lest she loses her day job for having an opinion (you know given these oppressive times we live in) – goes on to explain that “Unlike the case of divorce, a budgetary vote is not, and cannot be, a matter of conscience. There is no free vote on the matter and there cannot be, under any circumstance.” Which might make for quite a convincing argument. In a vacuum. All other things being equal (as Labourites apparently tend to think).

What guestposterontheruns fails to notice is the constitutional underpinning of the original theoretical scenario. While it may be argued that the value of the budgetary vote is a political vote that is not tied to conscience or free votes, its value is grounded in the fact that a budgetary vote is also an implied vote of confidence in government. A budgetary vote therefore is all about the stability of government and governance.

Should Joseph Muscat take up the J’accuse suggestion and use his vote in order to undermine Franco Debono’s efforts to vote against the budget irrespective of its content then Muscat would be acting in order to guarantee the very principle of governmental stability that underpins our constitutional provisions. The message and precedent set would be of extreme importance, not just for the government of the day (whose days are counted anyway) but also for future governments and their MPs. A renegade MP linking a budgetary vote to a personal issue (Austin Gatt) will not be seconded in his actions by the opposition.

This point is valid irrespectively of the inherent contradiction of the Labour party’s political position on the budget itself (we like it, we adopt it but we will vote against it). The arguments made by guestposterontheruns are short-sighted in that they tackle Muscat as the Labour leader within the current electoral campaign and scenario. The theoretical scenario I originally posted is neutral of current events and could be applied to any future scenario where a renegade MP abuses of his position.

That is what the “statesman” business is all about. Constitutionally, the need to establish a clear precedent for our two-party system and that states that renegade MP shenanigans will not be seconded in order to cause unnecessary instability, trumps by far the usual customary rules with regard to budgetary votes (whip, free vote etc).

The “rumour” might after all not turn out to be true (or simply sourced from a careful reader of this blog). I also have my doubts about how much Muscat and his team would understand the true value of the strategy I outlined. Even in short-term political terms it would be quite a winner for Labour. To be seen as not wanting power at all costs, to pull the carpet from under Franco’s feet and to simply wait a few more months (two?) for the government to run its natural course would be a boost for a party still reeling from its mishandling of the early post-budget.

I suspect that the very fact of the danger that Muscat might actually contemplate such a scenario that runs havoc with the PNs electoral plans is what must have prompted guestposterontheruns  to write about the “rumour” in the first place. Always if the rumour turns out to be true, that is.

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Forgotten Sons

Nikki Dimech has been condemned to one year in jail. The plight of the damned Nationalist Sliema Councillors seems aeons away now. The Sliema council ills were the first clear external signs that all was not well within the PN structure. We look back to the meetings between Paul Borg Olivier and the ill-fated councillors with a new perspective now. Dimech would be painted as the rotten apple immediately hung dry by the very party that had judged him suitable for the job. Of course with such a wide net of local council elections parties are bound to choose a bad apple or two every now and then but it is the manner in which hands are washed that is impressive.

The party structures are geared to win elections but are much less well equipped when it comes to supporting and monitoring the party representatives on the councils. The PN reaction once the court judgement was announced is puerile to say the least. “We were right”, they thundered in their press release, änd Labour was wrong for criticising how we dealt with Dimech”. That’s all it is really with them. A matter of black and white. Readers will get so easily distracted with this pot and kettle business. They will forget that people like Dimech were backed by the party structures, they were placed on an electoral list to win the votes for the party and to have councillors in place to maintain the party network that is fed on votes – come what may.

Dimech’s prison sentence may be a personal condemnation on a young man who is still in time to recognise his wrongs. It is also an indictment on a party candidate system that is lax and based on the wrong priorities. Dimech and Debono – two by-products of this system have badly backfired in the face of the PN. Are there many more lurking in the background waiting for the dividends of the next election?

The PN would do well to take note.

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