Category: Constitutional Development

Categories
Constitutional Development Politics

Diskors ta’ Immanuel Mifsud waqt dimostrazzjoni tan-Netwerk ta’ Soċjetá Ċivili

Diskors qed jiġi riprodott bil-permess tal-awtur.

Tliet snin ilu, fl-okkażjoni ta’ Jum ir-Repubblika, il-President Coleiro Preca għamlet diskors li fih appellat lis-soċjetà ċivili biex din ixxammar il-kmiem u taħdem hija wkoll għall-ġid tar-Repubblika. F’dak id-diskors, il-President saħqet li d-demokrazija tal-pajjiż teħtieġ li s-soċjetà ċivili tkun soċjetà kritika “li tirrifjuta li tkun oġġett tal-istorja, li tinsisti li taqsam mal-politiċi r-responsabbiltà li tittrasforma l-bejta umana.”

Dak li qalet il-President ifisser, fi kliem ieħor, li s-soċjetà ċivili – aħna – għandna responsabbiltà li fil-fehma tiegħi għadna m’aħniex nieħdu u li wasal iż-żmien li verament nieħdu r-riedni li d-demokrazija tagħtina f’idejna.
Minkejja l-progress li dan il-pajjiż għamel matul is-snin, is-soċjetà ċivili għadha ma saritx soċjetà kritika. Ir-raġuni primarja għal dan hija li għadna nħallu f’idejn il-politiċi biex imexxu huma; għadna bil-ħsieb li l-pajjiż huwa tagħhom; anzi, agħar minn hekk, għadna naċċettaw li aħna tal-politiċi minflok il-politiċi huma tagħna.

Biex dak li qalet il-President tar-Repubblika tliet snin ilu mqar jibda jseħħ, jeħtieġ nitgħallmu ngħidu lill-politiċi li d-demokrazija ma tiddependix minnhom iżda mis-soċjetà kritika li ma tiddejjaqx tgħid le fejn jeħtieġ li jingħad le. Soċjetà kritika hija soċjetà li ma tiddejjaqx tikkritika lill-partiti; li temmen li l-kritika lill-pajjiż mhijiex tradiment iżda impenn; li l-partit qiegħed hemm għaliha u mhux hi għall-partit.

Snin ilu xi ħadd kien għamel diskors li fih kien elenka numru ta’ ħolmiet li kellu, ħolmiet li setgħu dehru impossibbli. Ma tgħaddilix minn moħħi li nipprova nimita dak id-diskors imma aċċettajt li niġi hawn illum – u naf li ħafna kienu dawk li ssorprendew irwieħhom li tlajt fuq dan il-palk – appuntu għaliex anki jien għandi ħolma. Jien verament nixtieq li nimxu lejn mument u sitwazzjoni li fihom is-soċjetà ċivili tkun hi li tmexxi l-pajjiż bil-ħiliet kritiċi tagħha; li dal-pajjiż ma jibqax blata b’mentalità tribali li minnha jgawdu biss dawk il-ftit li għandhom il-poter; appuntu li l-poter ma jibqax jiġi effettwat minn fuq għal isfel; li l-istudenti tagħna, fl-istituzzjonijiet postsekondarji u terzjarji ma jibqgħux ikunu politiċi billi jikkompetu bejniethom bit-tessera fil-but; li l-vot ikun verament ħieles; li l-mezzi tax-xandir, minbarra li jirrispettaw l-intelliġenza tagħna ma jibqgħux imarrduna b’din l-iskiżofrenija li fuq kollox hija giddieba; li l-libertà tal-espressjoni – il-buzzword il-ġdida – nifhmu xi tfisser eżattament u nibdew neżerċitawha b’responsabbiltà u b’kuraġġ; li għax tkun soċjetà kritika tkun, awtomatikament, soċjetà pluralista u li dan jiġi rifless mhux biss fil-ħajja ta’ kuljum imma anki fis-sala prinċipali ta’ dan il-bini t’hawnhekk.

Matul iż-żmien qalulna ħafna affarijiet: qalulna bdiet rebbiegħa ġdida; qalulna żmien il-bużullotti spiċċa; qalulna wasal terremot mill-isbaħ; qalulna li pajjiżna tagħna lkoll; li konna taħt tmexxija soda; qalulna li dan hu l-aqwa żmien. U aħna emminniehom; kull darba emminniehom. Iżda soċjetà kritika m’għandhiex taċċetta kollox kif ġie ġie: għall-kuntrarju għandha tistaqsi, għandha żżomm għajnejha miftuħa.

Iltqajna hawnhekk ukoll wara dak li ġara ftit tal-ġimgħat ilu, meta xi ħadd iddeċieda li għandu jsikket lil xi ħadd ieħor, ipoġġi bomba fil-karozza u jżid vittma oħra. L-istorja ta’ dan il-pajjiż tfakkarna, fix-xahar ta’ Diċembru, fi tfajla li fetħet pakkett li ma kellha qatt tiftħu, u f’ġuvni li qagħad sa tard filgħaxija f’kamra fejn ma kellux jibqa’, għax xi ħadd iddeċieda li jimposta l-bombi u jispara fejn ġie ġie. Persważ li nittamaw li dan l-aħħar każ ma jispiċċax bħal dawn it-tnejn: mitlufa fit-trab tal-istorja, bil-feriti miftuħa beraħ.

Bdejt billi kkwotajt lill-President tar-Repubblika u nagħlaq b’sentenza oħra minn tagħha li nħoss li għandha tiggwida u tispira t-triq ’il quddiem: “Repubblika li tibża’ mill-intellettwali, li toħnoq, tirredikola jew tinjora l-ħsieb kritiku, hija Repubblika dgħajfa u waħda li ma laħqitx il-milja tagħha.”

Grazzi ħafna.
Immanuel Mifsud
Il-Belt, 3 ta’ Diċembru 2017

Categories
Constitutional Development Mediawatch

The Beautiful Garden

The atmosphere at the European Parliament this Tuesday was surreal to say the least. Not being too familiar with the building I arrived just as the debate on the Rule of Law in Malta had kicked off and took a seat hurriedly in the visitor’s balcony. Just as I started to take in the different speeches I noticed that I was seated a couple of seats away from Daphne’s family and the whole business took a wholly different perspective.

It was inevitable that different agendas would be pushed during such a debate. It was, as predicted, a repeat of the Pana Committee meetings with many deputies intent on taking advantage of this moment of weakness of the Maltese state in order to peddle their usual attacks on the island nation’s fiscal policy. Politics is politics and it would be too much to ask of all the deputies in the house to stick to the agenda at hand. Probably.

I felt very ill at ease though, for every other thirty seconds Daphne’s name was brought up. Whether it was to bolster an argument regarding the state of the rule of law in Malta or whether it was to harp on that spurious link between a legitimate fiscal policy and an atrocious cold-blooded murder, those three words would be repeated and would rebound along the walls of the Hemicycle. Each time I heard the name I did not dare look at Daphne’s family but I could not help wonder how awkward all this might seem, how distant from the warmth of a mother and a wife. True, we were there also because of what had happened and yet the way most politicians took over the name and memory of the recently departed did not seem right.

The weak respects jarred mostly in the mouths of those who could barely hide their contempt towards the very fact that we were there in that room, discussing the failure of a society and not only the failure of law and government. They went through the motions expressing regret for Daphne’s sudden departure though it sounded as convincing as a note of apology by the Transport Authority whenever the buses run late.

It was painful. Painful for me as a mere outsider who quite readily admits to having had strong differences of opinion with Daphne throughout the last years and who refuses to succumb to the temptation of creating false hagiographies. In fact I am quite happy to be clear that I did not find Daphne and her work to be perfect. Far from it. It is like stating the obvious. Somehow though I feel that it makes my case for demanding respect for her work all the stronger. Above all it puts the moment in perspective – there is an institutional crisis that led to a journalist being killed while doing her work and without any doubt because of the work she was doing. Daphne was killed with impunity because, in the words of her husband, she mattered.

The institutional crisis, the social deficit, predates Daphne’s assassination. The battle against the rot definitely predates Daphne’s assassination. The warning signs predate Daphne’s assassination. The side of Daphne that we want to remember and be inspired by is the one that was so ably described by her husband. It is the one who aspired to beauty in a world that she saw (as did many others) turn uglier by the minute. Before the situation became desperate it had already turned ugly. So ugly that it rendered others cynical. So ugly that many lost hope.

This is not about a sanctification of a person. This is about continuing the work that Daphne excelled in and that others too worked hard for with different results. The inspiration we should and must take is the Beautiful Garden. We should each build our own little garden and start to expand that slowly until the gardens take over.

The gardens are our hope, our courage, our future.

 

“But Daphne never grew cynical; she grew outraged and appalled by the increasingly sordid and frightening facts that emerged from her work. The more frustrated she grew at the state of our country, the more beautiful our garden became, the more trees she planted, the more books, art, ornaments and curiosities from all over the world arrived at our home. Daphne created, in the words of one of my sons, a parallel world of beauty in a country that slipped further and further away from European values and norms of behaviour which she held so closely. Meanwhile, Daphne’s work never slowed. With every story she broke, particularly about the money laundering network with links deep and wide connecting many of Malta’s political and business elite, her readership grew larger and more loyal.” – Peter Caruana Galizia

 

Categories
Citizenship Constitutional Development

Civil Society and its critics

A long read. This post takes a look at the actors and interests in the current debate on the rule of law in Malta. 

This afternoon the European Parliament will discuss a resolution on the Rule of Law in Malta. Point 5 of the Draft Resolution reads that “[The European Parliament] Regrets that developments in Malta in recent years have led serious concerns about the rule of law, democracy and fundamental rights including freedom of the media and independence of the police and judiciary”.  Point F of the preamble in the same draft resolution notes that “whereas this assassination led to street demonstrations and civil society protests in Malta calling for justice, accountability and respect for the rule of law”.

Our second parliament (because that is what the EP is, OUR parliament not a foreign institution) is about to discuss the state of the Maltese nation with particular attention to the legal framework that holds it together. Today’s discussion is an important milestone in our nations’ constitutional development and Civil society has been instrumental to get this discussion high on the agenda at both a Maltese and European level.

In May last year the group calling itself “Advocates for the Rule of Law” took out their first full page advert on the Sunday Times. The ad read ” Situations Vacant : Police Commissioner,  Chairman FIAU, Attorney General – needed for the proper functioning of a democratic society #ruleoflaw_MT, #maltaconstitution, #bringitback”.

I will be in Strasbourg for the commemoration of the Daphne Caruana Galizia Press Hall this evening and will also follow the debate. It’s a two hour drive from Luxembourg and it is only right to be there for this moment.  It is because I live in Luxembourg that I rely on feedback from Malta for news “on the ground”. What are the streets saying while one of our highest institutions discusses a motion that practically describes a nation in constitutional crisis? The feedback I am getting is that the effort to “return to normal’ seems to be winning. Four weeks after the assassination that supposedly shook Malta to its foundations we risk seeing Italy’s elimination from the World Cup snatching the frivolous “news cycle” baton once and for all.

So what exactly is happening? How can we have a nation that (at least in appearance) is hell bent on returning to the “u ijja mhux xorta?” normal while at the same time an important part of its institutional set up is ringing alarm bells? To understand this we have to look at the actors in this drama. What part has Civil Society played in this development – and who, above all, are its critics and detractors?

Dramatis Personae

1. The European “Partners”

The dynamic of the European institutions is such that national and supra-national interests meet in a huge chamber where ideas are bounced around. A resolution by the European parliament is not binding in the strict sense of the term for example, however one would be a fool to dismiss it as “international diplomatic spiel” that is void of substance. In the first place the EP acts within clearly defined legal parameters and on the basis of principles that are universally accepted at a European level. That is why today’s resolution begins with the consideration that the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. In other words, action by the EP is grounded in principle and in law.

The major pitfall at an EU level is that the parliament resolution may be used to further competing national interests. In this particular case we may note that members from certain EU countries might use this moment of weakness in order to attack areas such as Fiscal policy and Gaming. It’s a cheap trick – one that aims to obtain what their respective countries failed to obtain during legitimate negotiations that led to Europe-wide legislation. In layman’s terms, the members of the EP who will be using this debate to put the blame on a competitive Fiscal or Gaming Policy will be deliberately obfuscating the actual matter at hand – something that was already seen in the PANA committee debates earlier on. In doing so they will provide much needed fodder to the defending government who will obviously claim that this is an assault on the country and its well-being (more about that later).

The rest of the EP – those not intent on winning brownie points for their own country’s gain – will be acting with the interest of the Union in mind. The interest that has already seen similar concerns for countries such as Poland and Hungary will now focus on Malta. It is in the interest of the citizens of Malta first and foremost, but also in the interest of the Union as a whole for the Union is only as good and great as its weakest link.

2. The Establishment in Power

By far the biggest actor with much to lose in this debate is the current custodian of government. The massive media machine has long been set in motion with a huge effort in counter-information that is supposed to negate the crisis and convince the people that all is back to normal. It is working. Only yesterday, the head of the establishment in power promised more wealth and more rights for the future. The greatest interest of power is its preservation and the key to preservation of such power is convincing the people that all is well and that the future is bright.

Millions of euros are being spent on this kind of propaganda. Every effort by civil society to call out the emperor’s nudity is countered by an army of official and unofficial counter-information. Last Sunday one of the comment articles in the Times was entitled “They doth protest too much” – it was a suavely written piece at the service of the current status quo. It was also a clear example of the direct attack on civil society based on the age old cliche’ of “divide and rule”. Doubts are sown, motivations are questioned and before you know it you are thinking: Maybe they do protest too much.

This evening government will amass its forces in order to propagate its counter-information against the “intrusion of the foreigner” – which is an old socialist trick that finds a ready acceptance among a voting populace with an insular mentality. The bottom line for today’s official Newspeak Newsletter will be: This is a traitor’s conspiracy to rally the foreigner against Malta. It will probably work.

3. The Government’s Courtesans

In the times of Le Roi Soleil being part of the King’s court meant everything. Unless you were in favour with the king your titles and nobility did not mean much. Over the years this government has built its own team of courtesans – lobby groups, interest groups, appointees, employees and other dependents – who owe the same government a regular show of fealty. Whenever trumpets need to be blown they are there: at the beck and call to do the governments’ bidding. The assault on the calls for change was boosted by the rallying of the courtesans.

Constitutional reform was brushed away as a ridiculous idea, calls for immediate change such as the resignation of a police commissioner and attorney general were once again given the “motive” treatment. Divide and rule. Assign dubious motivation. Then go for the jugular: civil society is asking for mob rule. The two-thirds majority is an absurd suggestion. Miss the wood for the trees. Nitpick their arguments into submission.

The courtesans are an important part of Muscat’s Gattopardian puzzle of maintaining the status quo. They are intent on getting a share of the illusion of wealth that is being created. As plans of neutering our center of thought unfold with a new law giving control of University to government, as our students celebrate the victory of partisanship over thinking, as our Chief Justice becomes a lone voice in an institutional desert, Muscat’s grip over the courtesans means that he can strangle a good part of civil society into submission. Without that part the dissenting voices of civil society become squeaks and squeals that cannot be heard above the Newspeak noise.

4. The Converted

Civil society in Malta had long lost a huge part of its number. The discerning, questioning, part of civil society – the one that legitimately and constantly demands and asks questions of its representatives and of the custodians of its sovereign institutions – has always been a very tiny minority. The rest of what used to be civil society have been groomed into partisan submission. The general narrative – that the nation is passing through one of its most prosperous and wealthy times ever – suits the large part of the converted perfectly. It includes of course those who have voted for and will continue to vote this government based on the promises of prosperity at all odds. It now includes a large part of those who could not bring themselves to vote this government but were also fascinated by the easily obtained prosperity – and could not bring themselves to question whether this was based on healthy foundations.

The converted have no colour. For a long time we wrongly assumed them to be two huge chunks of red or blue. There was a unifying factor of ego-litics – the politics of the self – that they held in common. The common good, the common wealth is not theirs to worry about. Their party, and through their party their aspirations for the self, is what counts most.

5. The Foot-soldiers of Old

The current constitutional crisis saw civil society (or what is left of it) attempt to reform and rally around the call for change. A weak link in this rallying call was the presence of foot-soldiers of old. These are failed politicians of the past: those who seeing the opportunity to revive a dying political career would jump on the bandwagon in one last Hail Mary attempt. There is nothing wrong in a second start mind you, however the dedication to the cause must be clear and the determination to stand by it at all costs must also be clear. If at every opportunity, the cause is hijacked in an attempt to whitewash faults of the past then the damage to civil society is clear.

Malta’s tribalistic politics is the kind of environment where a civil society that can easily be associated with the aims of one or another of our partisan elements is in danger – particularly in these times of heavy counter-information. This is not an appeal for purity, this is not a call for those who are without sin. This is a call for clear commitment.

6. The Cynics and the disparate movements

The biggest weapon available for rendering the civil society cause redundant is the descent into paranoid accusations between exponents and those who have genuine concerns regarding the finality of the cause. The critics and the cynics have their genuine concerns. The defence put up against such concerns does sometimes border on paranoia. What happens generally though is that the whole point of the need for a clear rallying point is missed.

The biggest fault to date of the current movement for change is its disparate nature. Civil Society Network remains an abstract label without a clear definition. Other efforts are working in their little corner built upon spontaneous action triggered by anger and helplessness. That much has been achieved until now is practically a miracle.

The real civil society – what is left once all the establishment, all the converted and all the courtesans and foot-soldiers are removed – still needs to rally clearly behind a definite long-term cause.The groundwork is already there: the rule of law and the return to a democratic society. What is required is a concerted effort bringing together all the elements of the real civil society who are prepared to take the struggle to the long haul.

Civil society has too many obstacles before it and cannot afford to be bogged down by incompetence and division.

The people united can never be defeated.

Categories
Constitutional Development Politics

Silvio Schembri, Lies & 1984

Silvio Schembri – a member of Joseph Muscat’s government – was born in 1985. He could not remember 1984 , the year, and quite frankly I doubt whether he read the book. If he has, then I doubt he learnt any lessons from Orwell. While going through facebook last night I came across a post by Silvio Schembri. He was reacting to David Casa’s expose’ of recent events and more particularly to what he obviously perceives as the “threat” of EU scrutiny.

In his verve to shoot down whatever Casa said, the Honourable Schembri stated “Hon. Casa, you can ask the PN during whose tenure (in government) Pilatus Bank was given a license to operate.” Interesting I thought. Only it is not correct. This is a clear case of whitewashing of facts and a simple check would show that Pilatus’ license was issued on the 3rd of January 2014 – in full Joseph Muscat swing. I decided to gently point this out to the Rght. Hon. Member of Joseph’s government. “LIAR” I commented. I used block caps because that was what the fawning acolytes were using at that instance. I used the word “LIAR” because it was the right word to use as an objective assessment of the facts at hand. Schembri was wilfully stating a wrong fact – that in my books is a LIE.

I saved the screenshot for safety. For safety and for the simple reason that I knew that it would not be long before Silvio Schembri would do what members of our political community are so good at when faced with incontrovertible facts that they have been caught LYING. Sure enough Silvio Schembri removed my comment and my pic which included definite incontrovertible proof that he was LYING.

Schembri’s LIE is still on facebook. It is not just fake news. It is a LIE.

When challenged by others on the same thread Schembri came up with this explanation:

1984. Because we can.

Categories
Constitutional Development

The Literal Faculty – the rule of law and its critics

 

Dr Kevin Aquilina (signing off as Dean of the Faculty of Law) penned an article in today’s Independent. In this article entitled “Demicoli v. Malta – Part two“, Aquilina decides that by calling for the resignation of both the advocate general and the police commissioner, civil society organisations “have taken it upon themselves to charge, prosecute, give evidence against, convict and punish, through dismissal from office, both the Commissioner of Police and the Attorney General”. Having equated the call for double resignation to the action of a subversive kangaroo court, Kevin Aquilina concludes that civil society is in breach of the rule of law that it claims to want to sustain.

Dr Aquilina misses the wood for the trees. The call by civil society is for the removal of the AG and PC, that much is true. What Dr Aquilina either misunderstands or willingly misinterprets is that due process must and should be followed in both cases. Civil society is asking for nothing more and nothing less than the application of the law to cases where prima facie evidence points glaringly that it should be applied – but isn’t. Dr Aquilina tries to put the ball wrongly in civil society’s court. It is not.

The failure to act on the FIAU report has been cited as the glaring failure on the part of the AG and the PC. It is one of many practical examples that can be presented to the Public Service Commission (in the case of the police commissioner) and to parliament and subsequently to the Commission for the Administration of Justice (in the case of the attorney general).

Far from mob rule, the civil society demands translate into a call for the application of the rule of law. Civil society are pointing out that the failure to fulfil their institutional duties by both the PC and AG requires a remedy – remedies that are available at law and have hitherto not been applied.

Of course both the police commissioner and attorney general deserve a due process as guaranteed by law. Of course they would obtain due process should the law be applied. The problem, Dr Aquilina, is that the law is not being applied. The problem is that certain prerogatives are not being used. The problem is that in doing so the whole system that depends upon the proper application of the rule of law becomes a shambles and a farce.

Seen in that context, accusing civil society of advocating mob rule and not the rule of law makes the accuser part of the problem and not part of a possible solution.

Malta needs less Shylocks and more Ciceros.

Categories
Constitutional Development

The revolution will not be televised

 

On the rule of law and constitutional reform

Our parliaments have begun to discuss the state of the rule of law in Malta. I use the plural form because it is not only our national parliament that has begun to debate this but also our other parliament, the one that sits in Strasbourg. The President of the European Parliament is as much the president of a Maltese institution as is Anglu Farrugia.

All too often, whenever somebody like Antonio Tajani speaks you can sense people thinking that they are being spoken to by a foreign authority – the mentality of indħil barrani (foreign interference) creeps in. This misunderstanding is an almost harmless example among many that underpin the poor assessment and consequent weak expectations that “we the people” make and have of our institutions and their constitutional duties.

The main consequence of all this is that as a collective we become lousy arbiters of the use of the sovereign power with which we have empowered our institutions. As a fledgling nation we have seen our institutional set-up gradually adapted to suit a gross misconception – that the ultimate sovereign power that needs representing is not the people as a whole but bipartisan interests. In simple terms, the more the basic laws got rewritten, the more this was done to encapsulate a system of alternation and to redefine principles such as “fairness” and “justice”.

The result would be, for example, that a “fair and just” appointment under our laws is one that is acceptable to the two parties that became the only players in a system once modelled on a more representative idea: the Westminster model. As if that were not enough, the constant tinkering with our basic laws resulted in an executive on steroids – a government that would lead by virtual dictatorship for five years – that would also practically neutralise the representative organ of the state.

An overpowered, unaccountable executive, a neutered house of representatives and finally a judicial, watchdog and policing network that risks being brought to the heel of the executive that appoints it without any sense of meritocracy or transparency. That is the state of the rule of law that should be discussed in our parliaments. That is the spring board for constitutional reform that should have long been on the national agenda, but instead it kept being hijacked in the supreme interests of the survival of the two behemoths of Maltese politics: the nationalist party and the labour party.

Watching last Monday’s debate in parliament I could not help but think that we are about to relive yet another moment of cosmetic changes.

Delia, elected on the strength of a “the-party-is-above-everything-else” message hitched onto the “civil society” demands in an apparent display of goodwill to discuss any necessary changes. The thrust of his message though still let off a whiff of the appropriation (and watering down) of national causes that we have seen all too often from nationalist circles.

Labour, on the other hand, while leaving the door open for some kind of constitutional reform, bent over backwards in trying to explain that the rule of law is already alive and kicking in Malta. The collective denial of the patently obvious is in line with the daily Potemkin Village approach that their government’s propaganda machine seems intent on portraying. Under a Labour administration of L-Aqwa Zmien, the revolution will definitely not be televised.

Civil society has made its first calls that are not so much a call for blanket reform as for clear signs of change. The replacement of the AG and the police commissioner is still couched within the old principle of “justice and fairness” – approval by the two princes in parliament. A real constitutional reform must target more profound changes – a more representative parliament with a stronger monitoring role, an accountable executive and an independent network of judicial, monitoring and policing structures.

Calling upon the political parties to do what they do worst is counterproductive. A real constitutional convention would be made up of a cross-section of experts from civil society with the parties as equals among others and not as the leaders of such a project. The DNA of a new constitution should not be framed in terms of the needs of two parties but with the idea of a Malta 2.0 in mind, where the rule of law does finally reign supreme.

We need a Malta where we are all servants of the law so that we may be free.

* This article appeared in the Malta Independent on Sunday on the 5th of November 2017. 

 

https://youtu.be/qGaoXAwl9kw