Category: Constitutional Development

Categories
Citizenship Constitutional Development

The New Normal

 

In another guest post, Eleonora Sartori reflects on the messages from yesterday’s demonstration.

The new normal

In Canto III of the Inferno, Dante Alighieri describes the sighs and piercing cries of woe of “the miserable spirits of those who lived neither infamy nor praise”. These are the so-called “ignavi”, from Latin “ignavus”, i.e. someone who is not active nor diligent. They are placed together with “that worthless choir of Angels who did not rebel, nor yet were untrue to God, but sided with themselves.”

Given that the ignavi never dared take a stand for what they truly believed was right, but merely passively supported the strongest, they are subject to the poetic punishment of “no hope of death”. In fact they are condemned to an “unseeing life” where both Mercy and Justice hold them in contempt.

Their desolate condition is so tremendous that even Virgil, Dante’s teacher, suggests that Dante abandons them to their hopeless faith by saying the famous words: “Let us not talk of them; but look, and pass” (non ragioniam di lor, ma guarda e passa).

I recalled this scene after watching yesterday’s demonstration of the Civil Society Network. Many Maltese citizens (and I’d like to stress that they were citizens) were protesting in the streets, marching with banners or with tape on their mouths as a symbol of attempts to silence free speech. Even though a very big manifestation had already taken place two Sundays ago, at the very heart of Malta’s capital, they decided to march again on the streets, this time in the surroundings of where Mrs Caruana Galizia was brought up.

During the speech written by Jacques and so well delivered by Antonio, Jacques stressed that “Qiegħdin hawn biex inwasslu messaġġ fejn ngħidu li ilkoll kemm aħna nirrifjutaw li dan huwa THE NEW NORMAL. Li nirrifjutaw li dan huwa BUSINESS AS USUAL. » (yes, I am learning Maltese and yes, it is a beautiful language, though I only end up practicing it through politics nowadays ).

Why am I mentioning this particular bit of Jacques’ speech right now?

Because one of the first Maltese expressions that I’ve learnt when I started my second semester of Maltese was “Rajt ma rajtx, smajt ma smajtx”. An expression whose meaning I think only a Mediterranean mind fully grasps: the idea of pretending not to have seen nor heard for the sake of staying out of trouble. The idea of ignavia. The idea of omertà.

Those citizens protesting yesterday where calling for justice, but most important of all, were asking their countrymen and women to play a more active role in what’s happening in the country right now. Pia Zammit called for people to be engaged in what needs to be done right now to restore the Rule of law in Malta and honor Daphne’s memory by calling for more justice and transparence at all levels of the Maltese society.

And how can you start this tremendous job?

I think surely by not letting anyone around you forget or undermine what’s happening in your country. Daphne’s murder – because we’re not talking about someone’s death, we’re talking about someone’s murder – marked a turning point that cannot and has not to be forgotten.

However, there are those who are trying to make you go back to the passive status of the “ignavi” by calling this situation “merely exceptional”. They want to you to feel that after all business can and actually HAS to go back to usual, because there are other priorities on the agenda and it’s better that people forget this ridiculous quest for the Rule of Law.

And how do they achieve that?

First, they attack you. They call you whores, traitors and assassins if you decide to give up precious days of your life and devote them to protesting outside the PM’s office in Castille. They degrade you by stressing that you are nothing but mere random people whose place is not in the streets, calling for more justice, but back to where they belong – he wrote “Strada Stretta” (he even misspelled it) but even my poor command of Malti allows me to understand that he implied the former prostitutes’ district.

According to this logic, you people are tamed creatures who are useful because you possess the right to vote. Once the ballot is cast, forget about accountability and the sovereignty of the people. It’s them who take the lead. And by undermining your actions and the potential of these actions they make sure that you fully understand where you belong.

Secondly, instead of directly attacking you, they try to defend themselves and make you go back to your place by using a more subtle language. A language – in this instance it was used by your PM during last week- that can both threaten those who want to stand up and exercise their freedom of speech (“All those trying to make political mileage out of the murder of Daphne Caruana Galizia would see it blow up in their face”) and bluntly state what the country’s priorities are: business as usual, i.e.“The murder of blogger Daphne Caruana Galizia triggered off a difficult moment for Malta, but it should not be allowed to derail the country’s long-term plans.”

Let’s read it again: “IT SHOULD NOT BE ALLOWED TO DERAIL THE COUNTRY’S LONG-TERM PLANS.”

When I read this last sentence I was petrified. Seriously, is he saying out loud that it is the murder’s fault if you, the sovereign people, are now marching in the streets and that, by doing so, you are derailing the country from its never-ending Aqwa Zmien?

It’s because of these attitudes and the use of such a language that you all need to keep up the good work that has already been done over the past two weeks and go back to monitoring what is done by those who have the obligation to represent you.

Jiena smajt u rajt, u intom?

Categories
Constitutional Development

Diskors Dimostrazzjoni Socjeta’ Civili

This is the speech that Antonio Tufigno read on my behalf at the Civil Society Demonstration today.

X’intom tagħmlu hawn? X’inġbartu tagħmlu għal darba oħra madwar din l-għajta għall-Ġustizzja? Għadkom ma xbajtux? Għadkom ma għajjejtux? Ħarsu waħda fuq il-lemin u fuq ix-xellug tagħkom. X’ġew jagħmlu hawnhekk dawn in-nies illum? X’inhi din is-socjeta’ civili? Għalfejn dal-kjass, dan l-istorbju kollu? Għalfejn dawn it-talbiet? Għalfejn qed ngħidu li hawn min għandu jirrizenja? Aħna jew m’aħniex f’bidu ta’ rivoluzzjoni? U rivoluzzjoni f’isem xiex u min?

Ġimagħtejn ilu seħħ assassinju oxxen. Inqatlet bl-iktar mod premeditat mara qalbiena, omm kuraġġuża u kittieba sbukkata. Ġimagħtejn ilu seħħet skossa kbir fis-socjeta’ Maltija u minn dakinhar xejn ma jista jerga’ jkun l-istess. Is-socjeta civili qamet mir-raqda twila li kienet ilha fiha. Kienet ilha ma tridx temmen u ma tridx tisma’ li l-qafas ta’ pajjiżna sejjer lura bil-ħeden.

Lura mhux f’sens ekonomiku għax dik l-illużjoni hemm għada. Le, mhux f’sens ekonomiku. F’sens ieħor. Għax filwaqt li qed ngħixu fi żmien is-surplus ekonomiku qed nassistu żmien id-deficit civiku u socjali. X’intom tagħmlu hawn? Staqsejtkom. Ħafna minnkom issa draw ilissnu l-kliem “Saltna tad-Dritt” – il-famuża “Rule of Law”. Issa li qomna mir-raqda qed nindunaw u nitgħallmu li din tfisser ugwaljanza quddiem il-liġi…

Li l-liġi hija l-istess għal kullħadd …

u li min hu fdat bit-tmexxija tal-pajjiż huwa marbut u suġġett għall-istess liġijiet daqs kull wieħed u waħda minna.

U għaliex qed nitkellmu dwar dan issa? Għaliex kellu jkun assassinju kiefer ta’ ġurnalista biex nibdew nitkellmu dwar riformi ta’ pajjiż? X’inhu in-ness, il-link, bejn ħaġa u oħra?

Matthew, Andrew u Paul – t-tfal ta’ Daphne – qalu li ma jridux biss ġustizzja penali – jiġifieri li jinstab min hu ħati tad-delitt specifiku – iżda jixtiequ riżultati iktar wiesgħa – iktar dejjiema. Jixtiequ li l-pajjiż jirritorna għal stat fejn id-dritt jirrenja – fejn kull wieħed u waħda minna iħossu cittadin liberu u cittadin li m’għandux minn xiex jibża’..

Sabiex isir dan it-tibdil, sabiex jintlaħqu dawn il-miri hemm bżonn li tqum fuq tagħha s-socjeta’ civili. Hemm bżonn li dan il-moviment magħmul minn kull wieħed u waħda minnkom ikompli jikber u jitgħallem u jemmen dak li qed jipproponi.

Għalhekk qiegħdin hawn. Qiegħdin hawn għax l-istat naqasna.

Naqas magħna lkoll. L-istat fis-sens wiesgħa tal-kelma m’għadux iservi lil pajjiż iżda kull ma jmur qiegħed iservi biss lic-crieki ta’ poter.

L-istat naqasna għax tħalla isir, jew jissawwar, sabiex jaqdi l-bżonnijiet tribalistici ta’ dawk li jifirduna. Falla għax il-kostituzzjoni u il-liġijiet tagħna baqgħu jitbagħbsu sabiex jinqdew l-allat foloz u sakemm spicca intesa’ ic-cittadin.

Għalhekk qiegħdin hawn. Għax sabiex titqajjem kuxjenza dwar dawn il-problemi hemm bżonn li l-poplu – li s-socjeta’ civili – jiftakar li huwa s-Sovran.

Iva sovran. Fis-saltna tad-dritt, dik li tiggarantilna li il-liberta’ – il-poter bażiku – jinstab fil-poplu. Dak il-poter jiġi fdat lill-politici għal peridjodu ta’ żmien u huwa dmir tagħhom li jużawh fl-interess tal-ġid komuni.

Qiegħdin hawn għax dawk li fdajnilhom il-kuruna tas-saltna tad-dritt naqsuna lkoll. Naqsuna kull darba li ippermettew li jitmermru l-istituzzjonijiet li xogħlhom kien li jipproteguna. Naqsuna kull meta ippermettew li tissikket kull tip ta’ kritika jew oppozizzjoni. Naqsuna kull meta ħadu sehem dirett f’azzjonijiet sabiex jissiktu l-kritici. Naqsuna meta biegħu il-valuri tagħna lkoll sabiex igawdu il-ftit.

Qiegħdin hawn, fl-aħħar, għax kellha tkun xokk lis-sistema bl-assassinju atroci ta’ Daphne Caruana Galizia. Issa ma nistgħu nonqsu la lilha u lanqas lil dak li ħadmet hi ukoll għalih.

Qiegħdin hawn proprju fil-belt fejn trabbiet biex l-ewwelnett ma ninsewx lil Daphne u dik il-ħidma tagħha li biha għenet biex jinkixfu l-problemi ta’ pajjiżna.

Qiegħdin hawn biex ma ninsewx. Għaliex nonqsu aħna mir-rispett lejn Daphne jekk inħallu l-memorja tagħha tintesa wara ftit żmien u jekk ma jsir xejn sabiex tinbidel is-sitwazzjoni preżenti li kienet ukoll il-kaġun li waslet għal mewtha.

Qiegħdin hawn biex inwasslu messaġġ fejn ngħidu li ilkoll kemm aħna nirrifjutaw li dan huwa THE NEW NORMAL. Li nirrifjutaw li dan huwa BUSINESS AS USUAL. Li nirrifjutaw li kull min qiegħed jgħolli leħnu dwar il-bżonn ta’ bidla jiġi sistematikament attakkat bħala traditur jew bħala partiġġjan. Li nirrifjutaw l-akkuża li xi roadmap ta’ xi politiku qed jiġi sabotaġġat b’din l-għajta għall-Ġustizzja.

Qiegħdin hawn bħala l-ewwel pass ta’ bidla importanti għal pajjiż li jrid jreġġa lura lejn is-saltna tad-dritt, bħala pajjiż fil-qalba ta’ l-ewropa b’vokazzjoni li jkun l-aqwa – iva – imma l-aqwa xempju ta’ liberta’, demokrazija u ġustizzja.

Qiegħdin hawn għal-vjaġġ twil. Il-bidla mhix ser issir minn jum għall-ieħor. Għad irridu nikkonvincu ħafna nies dwar kemm din il-bidla hija siewja għal pajjiżna, għalina u għal uliedna. Intom ilkoll li qiegħdin hawn tistgħu tkunu xhieda iżda anki attivi f’din il-bidla. Nista’ ngħidilkom li magħkom hemm ħafna Maltin u Għawdxin li, bħali,  jgħixu barra – Maltin ta’ Londra, Maltin ta’ Brussell, Maltin tal-Lussemburgu, Maltin tal-Isvizzera. Maltin li baqgħu marbuta sew ma dak li qed jiġri f’pajjiżna u li għandhom ħafna x’jikkontribwixxu għal din il-bidla.

Jien fost il-ħafna li kibru jaqraw il-kolonni ta’ Daphne fil-gazzetti u li ġejt ispirat minnha sabiex nuża l-pinna bħala arma politika.  Forsi irreciprokajt ftit din l-ispirazzjoni meta permezz tal-blog tiegħi, waqt iljieli ta’ diskussjonijiet jaħarqu fuq l-istess blog fi żmien l-elezzjoni tal-elfejn u tmienja, Daphne iddecidiet tiftaħ blog tagħha. The rest, kif jgħidu, is history.

Jien ukoll għadni immur  fuq il-blog tagħha b’mod awtomatiku sabiex nara x’inhu jiġri f’pajjiżi. Il-vojt li ħalliet warajha huwa enormi. Ma rridux ninsew li dan il-vojt inħoloq għax kienet tikteb. Għax ma beżgħet minn xejn u ħadd.

Ippermettuli insellem lill-familjari kollha ta’ Daphne f’dan il-mument. L-ebda kliem ma huma biżżejjed biex jimlew il-vojt li qed tħossu. Ma hemm l-ebda mod aħjar kif nirrispettaw il-memorja ta’ Daphne ħlief li nissuktaw f’din it-taqbida għall-Ġustizzja.

Aħna is-socjeta’ civili. Il-poplu magħqud qatt ma jkun mirbuħ.

GRAZZI.

Categories
Constitutional Development

The part I don’t take

The list of speakers for tomorrow’s Civil Society Demonstration has been published and readers by now will have noticed that I am one of them. I have seen comments directed at me both on the Times and Independent articles on the event. According to one commentator I was an obvious choice because I wrote “against the PL” prior to 2013. Another commentator was convinced that my time served as president of the university student’s union was served in the capacity of a PN representative.

To be fair, that was just about it. Not much fodder it seems. Which probably means that I am sufficiently of an unknown factor to pass the grade of most suspicious observers. I could answer both the comments stating firstly that I have written “against the PL” both before and after 2013. My track record is such that my writings took me “against the PN” often too – especially when the PN deserved more scrutiny as the party in government. Luckily I have 12 years of blogging to back my claims.

As for my time in KSU – the allegation is risible to say the least. My time spent both in SDM and in KSU was at the service of students and the student community. I proudly state that together with my colleagues of the time I was responsible for a (albeit temporary) rift between the SDM and the Nationalist Party. The reason is simple – I did not take kindly to being dictated how to do politics for a party’s sake.

This is not an apologia for my past or for my credentials to address tomorrow’s crowd. This is more of a look at why I believe that the kind of activism that is developing in and around the current crisis is perforce a non-partisan one. The wider aims and goals of the civil society that has begun to stir go beyond the immediate demands made by the Civil Society Network. The fundamental aim is constitutional reform. Constitutional reform that is radical and has to be so.

Such Constitutional Reform must be party-free. Understand this. Party-free not party neutral. The thinking outside the box begins at that point. We have had a constitutional system that developed around and at the service of two parties. I have repeated this notion ad nauseam. The reason for the institutional rot is also because there is a limit to how much you can bend and twist the rules to serve two masters. The reason for institutional rot is not to be placed at the foot of one party or another. There is no measure that can blame one party more than the other. The reason must be placed squarely at the feet of both parties. Yes. The PLPN.

So think outside the box we must. The movement must become a constitutional movement. The proposals of what a new Malta should look like will be manifold. Already there are disagreements among proponents as to which system will be better however there is one crucial matter that must be remembered: the discourse has been brought to the forefront of the national agenda.

Before the election I founded the Advocates for the Rule of Law together with some colleagues of mine. Our aim was to highlight the deficit of rule of law that was becoming increasingly obvious. Yes, it became increasingly obvious under Labour’s watch but be careful, the problem was rooted much much earlier. Here is a snippet from a blog post (and from my Independent on Sunday column at the time) in March 2010: what many would call less suspicious times:

“All three branches of the state are currently under heavy attack and the levels of trust that “the people” seem to have in the administrative, executive and the judiciary appear to be alarmingly low. This is not healthy for our democracy – it’s a rot that is setting in. The rot must be exposed, not in a partisan, self-interested kind of way but rather in an objective attempt at rediscovering what we want for the future of our nation.”

I reread my posts over the years since 2005 and to me it sounds like a broken record. Not – as an observer on Daphne’s blog observed tauntingly very recently – the broken clock that is right twice a day. No, this was a constant consistent message. Over the years I and other like-minded individuals explored possibilities for constitutional change. We believed that the change should start from the house of representatives. Transforming it into a truly representative institution would mean proportional representation and having a clear cut separation from the executive. It did not make sense to have a third of parliament sitting in the cabinet.

The discourse of reform needed a crisis to be kicked off. Sadly the crisis took the ugliest form that one would never have wished for – the death of a vociferous journalist. The agenda of reform that had been hinted at mildly during Panamagate and its aftermath was now catapulted to the forefront. The Advocates for the Rule of Law (AFTROL) had managed to put the words on the nations mouth: Rule of Law. The discussion had remained at a technical level and the election had pummelled a people into silence.

The new crisis has brought the discussion back with a vengeance. What needs to be understood is that this is not about asking Joseph Muscat to resign. It is not about advocating or pushing for the usual alternation. It is much deeper than that. The nation desperately needs the reform for its own good. Citizens need to understand that so long as they pin their hopes on the partisan assessment of politics then all hope is lost. The two political parties will always be in survival mode. It is parallel to their need to be in power to make the system work to their advantage. The rules  must stay the same – even if they will pay lip service to constitutional reform.

Now more than ever it is imperative that we are not partisan. The part I don’t take is the part in part-isan. It is imperative that we begin to understand that the Civil Society Movement must establish itself with even higher standards than the temporary ones that are being  asked for right now. Constitutional reform must come from the heart of the nation. From its sovereign. We the people.

I am not partisan. I don’t need to be and cannot be. My duty as a civil activist is to fight for constitutional change that brings about the proper reforms. That brings about the rule of law.

We are servants of the law so that we may be free.

 

Categories
Citizenship Constitutional Development

James Debono at the Civil Society Demo

Reproduced with the kind permission of the author.

Nhar it-Tnejn Daphne inghatat il-piena kapitali minn xi hadd li tant hassu omnipotenti li ddecieda li jhassar mid-dinja gurnalista li bil-pinna taghha kienet saret tehdida…

Meta smajt l-ahbar hassejt vojt…il-vojt li thoss meta thoss li pajjizek tilef bicca minn ruhu. Ghalhekk wara giet ir-rabja.

Xoghol il-gurnalist mhux li jinghogob mil-poter imma li jzomm distanza minnu biex ikun jista jwassal il-verita. Speak truth to power ghandu jkun l-motto taghna lkoll.

Inhossni mcekken quddiem il-karba tal-qraba u t-tfal ta’ Daphne, karba ghal gustizzja mhux ghal ommhom biss imma ghal Malta taghna li tant inhobbu.

Tajjeb li l-gvern qed jibghat messagg qawwi li se jaghmel min kollox biex jaqbad lil kriminali.

Imma fuq kollox Pajjizna irid fejqan.

Ghax pajjizna ma jixraqlux hekk. Pajjizna ghandu ruh.

We do not want to live in a mafia state. Ma nridux inkunu washing machine tal-flus mahmugin tal-kriminali u d-dittatturi. Il-flus ma jixtrux kollox, wisq l-inqas il-gustizzja.

Fuq kollox quddiem tehdida daqshekk kattiva mill- kriminalita organizzata, hemm bzonn twegiba politika ghal kwistjoni morali li qed tifni lil Malta taghna.

Hadd m’ghandu jipponta subghajh lejn hadd ghax lkoll ghanda parti mit-tort kull meta harisna n-naha l-ohra biex naghmlu lira zejda. Imma din mhix skuza biex inhallu kollox ghaddej.

Biex ninghaqdu u nuru li ahna ahwa Maltin u nibghatu l-aqwa messagg lill- kriminali li qatlu l-Daphne inridu nuruhom li Malta ghanda istituzzjonijiet li ghandhom is-snien u jgawdu l-fiducja taghna lkoll.

Fl-ahhar ftit snin ma rajnix rieda tajba. L-istituzzjonijiet fallewna bl-ikrah f’bosta kazijiet bhal Panamagate li gew midfuna taht it-tapit tal-konvenjenza. Kellna paralizi istituzzjonali fejn l-istat u l-pulizija ma resqu lil hadd quddiem il-qrati biex jigi gudikati.

Ghalhekk biex ikollna fiducja fl-istituzzjonijiet jehtieg bidla fl-istituzzonijiet.

Irid isir ezami serju ta’kuxjenza u kull min ghandu jwarrab ghandu jwarrab illum qabel ghada.

Rajna wkoll rigress kulturali fejn xi whud f’partiti differenti bdew iseksku li onestsa u l-indafa huma xi zvantagg fil-politika. Kwazi li tkun parti mid-dinja tat-tahwid bdejna narawa vantagg.

Rajna kultura tal-libelli li fija l-prova tal-innocenza tigi billi tfajjar xi libell.

Iva ghal ghexieren ta’snin gvernijiet minn partiti differenti ma ghamlux bizzejjed biex insahhu s-saltna tad-dritt. Hallejna hafna xquq min fejn setghu jghaddu d-delinkwenti politici ta zminijietna.

Imma flimkien nistghu naghmlu d-differenza… kurragg.

Intom ragg ta’ dawl f’din i-lejla mudlama tar-repubblika Maltija…Intom l-Malta t-tajba, dik il-Malta li ma tiskotx, dik il-Malta nadifa

Ghax inhobbu l-pajjizna inridu inkomplu dak li bdejna illum u ma nifqux qabel pajjizna jerga jikseb il-hakma tad-dritt f’kull qasam tal-governanza.

Grazzi li qomtu mir-raqda. Viva Malta nadifa. Viva l-Maltin li issa qed jghidu issa daqshekk.

Categories
Citizenship Constitutional Development

The Marriage Equality Bill and the label on the box

The Act to amend the Marriage Act (etc) is storming through parliament as it inevitably would given the repeat of the concomitant factors that allowed for a spate of progressive cum liberal laws in 2013. We have a Labour government elected with a huge margin and therefore with a comfortable majority in Parliament that is about to kick off a new season of legislative wonder. True to form the first bill on the table is an inexpensive one – no capital expenditure is involved – yet it is a huge investment in “street cred” capital when it comes to waving the progressive flag.

It’s the timing, stupid

Speculation at a purely pragmatic political level would have it that Muscat’s timing for this bill is justified by two main reasons. The first is precisely the idea that his government is seen to be the champion of liberal rights – the great reformer that has shot Malta to the top of the tables for civil liberties. In this case the “seen to be” is crucial. There is no capital cost and more importantly no political cost because the “Taghna Lkoll” wave is in full tsunami flow and even the most bigoted conservative within Muscat’s movement will right now sing his praises for whatever liberal achievement he is told has been achieved. Yes, this is definitely l-Aqwa Zmien and Muscat will be cashing his civil liberties cheque as often as he can – he has already done so before the Pana committee (what a wonderful distraction) at the EP.

Which brings me to the second reason for the timing. Debates on civil liberties in Malta tend to be rather controversial. Like most debates in Malta the tendency is to argue broadly without much attention to either fact or detail. The added value for Muscat’s government is that civil liberties debates tend to be a particularly sensitive issue for the party in opposition. Rushing the “debate” on civil liberties at a stage when the opposition is still in disarray gives an added value to the image of “Civil Liberties Champion” that Muscat tries to portray. It helps if the argument is reduced to black and white “for and against progress” levels without any nuance whatsoever. This is the time to expose the so-called “dinosaurs”and to purportedly portray the opposition in an ultra-conservative light. Antics and misinterpretations by the dinosaurs of the like of David Agius and Edwin Vassallo will be made to stick out like the ugly conservative warts that they are. The dinosaurs will provide the perfect platform on which to build the straw man wherein to bundle together all the critics of the bill whatever their reasons may be.

The Facts of the Matter

Which brings me to the content of the legislation itself. There are a few incontrovertible facts that need to be considered.

Fact One: All parties in parliament had committed to introducing equal marriage rights in their respective manifestos (the PD is committed to the manifesto of the PN).  A manifesto by a party is a manifesto for government. It is not a manifesto for opposition. What we deduce as a commitment to vote in parliament is tied to whether a party is in government (and therefore able to produce the law as envisaged in the manifesto) or whether it is in opposition (and therefore within the limits afforded by its minority in parliament how far it can influence a bill in order to reflect its manifesto). The Bill before the 17th legislature (before the parliament elected in June) is a bill drafted and proposed by the party in government and therefore embodies its conception of what equal marriage is. I will leave it to the PN to solve its own internal disagreements however I disagree with Simon Busuttil on one point. The PN (and PD) are not bound to blindly accept any law purporting to legislate on equal marriage proposed before parliament for the simple reason that the content might not reflect their concept and drafting of a potential equal marriage. That is how and why an opposition exists in Parliament. It is part of the checks and balances for the rule of law to properly function.

Fact Two: The title of the Bill in question is “An Act to amend the Marriage Act and various other laws in connection with the introduction of marriage equality and to provide for other matters dealing with it or ancillary thereto“. Let us be clear. The purpose of the act is clearly the introduction of marriage equality. Translated into layman’s terms it is an act that is intended to ensure that the institute of marriage that has hitherto been an institute exclusive to heterosexual couples is made accessible to same-sex couples. That is clearly what the label says on the box. That is what this act should be doing. Nothing more nothing less. In other jurisdictions, such as that of England and Wales (we cannot say UK since Scot and Northern Irish law are regulated separately on this issue), the solution was simple. Very simple. Under the “Marriage (Same Sex Couples) Act 2013, article 1(1) stated concisely and without any complications: “Marriage of same sex couples is lawful”.

Fact Three: Here’s a little known fact. When you read through the current provisions of the Marriage Act and the Civil Code combined you will notice a very interesting anomaly. Nowhere in the law is marriage between same-sex couples prohibited. Madness, I hear you say, why all the fuss? Well it’s not that straightforward. True, nowhere in the restrictions to marriage section is there an outright prohibition of persons of the same sex getting married. The restrictions include age, infirmity and degrees of affinity (articles 3,4 and 5 respectively) but do not, surprisingly include any specific prohibition of same-sex marriage. What has stopped a gay or lesbian couple from turning up at the registry and asking to get married then? The answer is twofold – the first is custom (consuetudine) because until now it has been presumed that society regulates marriage as a union between persons of opposite sex. The second is the more formal problem of nomenclature because even though most of the provisions already refer to spouses or “persons to be married” without being gender specific you do encounter articles such as 15(2) of Cap 255 that refer to the Registrar (or officiating officer) declaring the married persons to be “man and wife”. That, and the myriad of forms that need to be adapted to be able to accommodate same-sex couples registering their marriage, are the main obstacles to same-sex marriage to date.

Rushed Cats and Blind Offspring

So now to the Bill. We all agree that the intention is to introduce the possibility of same-sex marriage. It’s even better with all parties involved on board. All parties agree that same-sex marriage should be a possibility under Maltese law. How do we go about introducing that? The solution in other jurisdictions, as I already referred earlier, was a glaringly obvious and simple solution deserving of Occam’s Razor application of the year. In layman’s terms what is done is simply (yes simply) to add to what already exists. The England and Wales option was to declare clearly that “Marriage of same-sex couples is lawful”. Angela Merkel’s “Schabowski moment” led to a change in German law which will now state the following: „Die Ehe wird von zwei Personen verschiedenen oder gleichen Geschlechts auf Lebenszeit geschlossen.“ ( “Marriage is concluded by two persons of different or same sex for life.”). Again, simplicity is in order – to an already extant regime of marriage (between persons of different sex) is added a parallel (and equal) regime (between persons of the same sex).

That is in essence what the introduction of Same-Sex Marriage entails. Nothing less. Nothing more.Sure certain provisions of the law would require an add-on for interpretative purposes in addition to the existing provisions in order to allow their interpretation in the case of same-sex couples. It is not necessary to change these clauses into a more neutral term. What would be done is to add an interpretative section or clause (whatever the case may be) that applies in the case of the newly added parallel regime of same-sex couples. Likewise, where for some natural reason, certain marriage-related clauses cannot apply in the case of same-sex couples (as has been ably argued by my colleague Dr. Justin Borg Barthet) this would be clearly stated in the law: for example the problematics surrounding the grounds of impotence or consummation in the area of nullity of marriage could be solved by either exempting same-sex couples from their application or by qualifying their application in such circumstances.

Any law purporting to do that should (and probably would) have the support of the whole of parliament. Doesn’t Bill no.1 of the 17th Legislature do that then? Well it says that it does in its title but it goes on to do far more than that. This is where the problems start.

Same, same but different

Bill no. 1 has one major problem that pervades the whole exercise. It is in fact an exercise in declaring everybody SIMILAR and in denying the existence of DIFFERENCES by paring down as many of our major codes as possible to the LOWEST COMMON DENOMINATOR. The confusion in the drafters’ head lies primarily in their conception, or rather misconception, of equality. Equal rights you see, does not mean that everybody is the same but rather means that everybody – no matter how different – is to be treated equally before the law. This is the age-old struggle of feminism – a justified struggle that recognises that even though men and women are different (and accepting that difference) it does not mean that they should not have equal rights. This normative distinction is hard to explain in normal circumstances. What it means is that for example when it comes to salary the law ensures equality by saying that both men and women should be paid equally. Given the same job, under the same conditions, it is illegal for a man to be paid more than a woman. In order to guarantee this equality the law RECOGNIZES THE DIFFERENCE. You have a MAN, you have a WOMAN and you have a law stating that the WOMAN can not be paid less than the MAN because she is not a MAN.

Helena Dalli’s Bill tries to do something different. To continue using the example given, in order to get equal pay it tries to redefine men and women. No more men, no more women. Just persons. The wonderful thing is that if it were really a case for legislation for equal pay then this solution wouldwork perfectly. All persons deserve equal pay. Simple. This is not equal pay though. This is the institution of marriage. Remember and bear this in mind. The declared intention is to introduce same-sex marriage with all the consequences NOT to alter the current institution. The nationalist party “conservatives” got the wrong end of the stick in their criticism of the bill – they fell into the ploy of the progressives who would label them conservative dinosaurs.

The real problem of the bill is that it is a rash job that ignores all rules of legal interpretation. It opts for the more convoluted option of combing through major laws and in each instance reducing to the lowest common denominator any definition. The agenda is clear – ride the momentum and push through changes of nomenclature for the sake of winning while the stakes are high. It is not, as explained earlier, a necessary exercise. A parallel, well thought out regime for same-sex marriages would have given same-sex couples an equal foothold in the institution without whittling away from an institution that has withstood the test of time.

The honourable fight for equality has been hijacked by an extremist faction intent on pushing the limits. For a long time, the governments of this island have lent more than an ear to the bishops and archbishops when regulating civil liberties. The tide has turned and it is now the turn of the Rainbow Church to have the ear of the government. The path that has been taken is a dangerous one. The misconception (and I am not sure it is an error, more a wilful construction) of the workings of Equality lead to definitions that open the floodgates for legal lacunae.

The bill will inevitably pass through parliament as it is. Muscat wants a show of force and mistakenly interprets this as an easy victory of liberal forces while shaming the PN further for having allowed its conservatives to bleat once again. In actual fact though there is little justice and equity in a bill that is bulldozering through parliament beyond debate using the brute force and euphoria of an electoral victory. The MGRM and other lobbies purring away while dismissing any constructive criticism with their straw man argument are unable to conceive the damage to their own cause that is being wrought by this kind of legislation. Level-headed members of the public, many of whom have absolutely no bone to pick with the introduction of Same-Sex Marriages will now be more wary of any proposals from the quarter of these latter-day extremists.

Right now it is tough to speak out and try to criticise objectively because the inquisition is out en masse. Ironically for a lobby that so despises labels and labelling they seem to be quick to throw a label or two in the direction of whoever dare criticises their bulldozing project. The rule of law is in no better place when dialogue and consultation are replaced by imposition. This law will pass through parliament but it is no victory for democracy or for representation. Sadly, expect more of the same for now.

 

 

 

 

 

Categories
Constitutional Development Corruption

Pirates of the Mediterranean.

 

The #Maltafiles scandal has just broken. The journalistic network EIC (European Investigative Collaborations) combed through 150,000 documents leaked from Malta and concluded that Malta is a ‘pirate base’ for tax avoidance. Coming right after Panama Leaks had projected Malta into the wrong side of the limelight thanks to its having the only EU Minister with companies in Panama (and not doing anything about it), this new scandal threatens to deal a heavy blow to a crucial sector of the Maltese economy. As things stand we are definitely not in the best position to set up any form of defence.

Reputation is the key concept here. Blow after blow is being dealt to Malta’s reputation as an honest dealer on the international and European level. One lesson that many nations learnt from Panama Leaks was that in order to be able to survive in the cut-troath world of tax competitiveness it is crucial to know how to be on the right side of the fine line between tax avoidance and the abetting of illegality.

The International Dimension

Take New Zealand for example, the discovery of the use of their system of trusts by Maltese government figures led to the changing of laws in the country relating to trusts. Notwithstanding the immediate and timely reaction to shore up the damage, the ripples of the scandal are still having an effect on the NZ trust system to this day: the inquiry into the dealings by the Azerbaijan President’s daughter involve movement of moneys through New Zealand trusts.

In Panama, the founders of Mossack Fonseca – the law firm in the eye of the storm – were arrested and accused of having formed a criminal organisation that assisted persons in hiding funds of doubtful origin (read money laundering). They have only just been released on bail. Laws get changed, law firm partners get tried criminally and action is taken. All to protect a country’s reputation. That is because in the world of tax and investment competition reputation is crucial.

What happened in Malta? For over a year now the Prime Minister has stood by two of his closest operators: Keith Schembri and Konrad Mizzi notwithstanding the fact that they were two PEPs caught up in the Panama Papers scandal. The feeble excuse? Some sort of declaration on a hastily written paper makes it all seem – to the Prime Minister – A.O.K. Worse still, insofar as Mizzi is concerned we have the fake defrocking from his position as Energy Minister as some form of retribution for his ‘genuine error’. The hypocrisy behind this move was never more blatant than during Malta’s turn at the presidency of the EU with Mizzi turning up and chairing meetings of the EU Council of Energy Ministers.

No effort at all was made to preserve Malta’s reputation in this respect on the international scene. Joseph Muscat was quite prepared to defy everyone and everything and proceed with his headfast ways keeping both Schembri and Mizzi close to his chest while ignoring international calls that cried foul. At no instant did his particular magic formula for Malta’s economy – Muscatonomics – contemplate the huge damage being wrought by his actions and those of his entourage. The recent developments with regards to the operations of Pilatus Bank are only an aggravation of this situation. It can only get worse.

The European Dimension

The Best in Europe is what Joseph Muscat had promised. Has he delivered? There are different ways of looking at this. First there is the government spin that our economy has never been better. We have low unemployment and budget surplus flowing through our ears and noses. The ‘trickle down’ benefits for the citizen remain the famous ‘consumption bill cuts’ that earned Muscat his first ride in power. A different song is that sung by others who – as best put metaphorically by a colleague of mine – describe the situation as follows: The previous nationalist government had replaced an old car with a spanking new one and the labour government found it all set to go. What labour is doing is revving up the engine and wearing it down as fast as possible like there is no tomorrow.

Beyond the inevitable spin though there is a reputation to be upheld in the European Union too. Being the best in Europe also entails being the best in Europe by European standards and those standards are to be found in the rules of the club. It’s not about a blind adherence to the rules either, it is about understanding that the European Union is a sum of its parts and that every part of the Union can only benefit when they work together and for the same interest.

This idea is best enshrined in article 4(3) of the Treaty of the European Union:

“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”.

The principle of sincere cooperation underlies the operation of the EU as a group of states with common goals and common regulations. When boiled down to the essence it translates into “member states (and institutions) should not engage in activity that undermines the goals and effectiveness of the Union and its objectives”.

Which brings me to passports and the sale thereof. It may be ok for the government of Malta to lend lip service to the European Union as a project and as a concept. The damascene conversion of Malta’s PM from hater of all things EU to sudden prophet on the future of Europe might have become a taboo topic and yet it remains to be tested given how every action on the European stage by this government is tied to inherent contradictions and the sale of passports is the prime example.

When Malta’s Labour government decided to turn the sale of Maltese citizenship into a lucrative business it also did so with the full knowledge that the main attraction of such citizenship was that it included EU citizenship in a sort of 2 for 1 deal. The bulk of local criticism of the scheme was related to the type of purchasers who would be attracted but few chose to stress the European dimension of the problem. The low and inconsistent standards applied to the scheme and the readiness to accept anybody willing to pay were not only harming Malta but they were harming the European Union.

Did our PM care? Irrespectively of whether he was aware of the alleged massive operation of greasing of wheels when it came to the implementing of the scheme, Muscat showed an incredible nonchalance in dismissing this huge “up yours” to the European Union as one big bout of jealousy. What does that make Malta seem like in the eyes of its partners in Europe? What does it do to the reputation of the nation? Yes you guessed. We are the pirates of the Mediterranean, ready to sell our soul for a quick kill – and that kind of reputation sticks.

So when the focus suddenly shifts to a Financial Services industry and to how Malta has used a (cheap) competitive edge to attract investments here the onus of proof that Malta acts with malicious intent of the “I’m alright and f you jack” kind is much lower. Couple that with the fact that our regulatory system in this sphere has not exactly been improving over the years but rather has degenerated and you suddenly discover that one of the crucial sectors in our economy is under open fire from all sides.

This is not Luxembourg right after Luxleaks. This is not Ireland after getting rapped on the hand by the Commission for the way it deals with huge multinationals. This is passport selling Malta with a Panama Leaks associated heart of government that is now exposed with a set of files showing that its financial services system is being abused by persons of not too high a standard.

That is the difference really. On any other day, under any other government, an attack on the competitive edge of a particular sector can be weathered given the right diplomacy and the right legal action in the right quarters. Take our gaming industry – constantly subjected to a barrage of attacks by fellow EU members who want a piece of the cake. So long as we can show that our regulatory standards are high and that we operate within the limits of sincere cooperation then it as all part of a days work as members of the EU. There are forums were this battle can be taken.

This is not any other day or any other government. This is a scandal ridden government that has now got a long list of grievances which all boil down to the breakdown of governance. The strongest defence for maintaining a competitive regime is that it is done and maintained within a strong regulatory framework that allows for no nonsense. When France, Germany, Italy and more come knocking at your door asking questions as to how your financial services industry is full of huge holes allowing for money laundering operations the best platform for defence is not the deck of a pirate ship that is sinking fast.