Category: Politics

Categories
Mediawatch Politics Rule of Law

Frozen too late

On this night when the news broke of the freezing of assets of Keith Schembri, Brian Tonna and others we need to take a step back and realise that the information that led to this action has been in the public domain for at least three years.

On April 24th 2017, Daphne Caruana Galizia published a post entitled “BREAKING/Prime Minister’s chief of staff took kickbacks from Brian Tonna on sale of Maltese citizenship”. In that post, as the title describes, she detailed fact upon fact of how Keith Schembri had received kickbacks from Brian Tonna on the sale of citizenship.

The ball, you could say, was in the AG’s court. Action could and should have been taken. Instead we all know what would happen. Nothing. No prosecutions. No investigations. Keith Schembri would remain a key figure in disgraced PM Muscat’s kitchen cabinet and Brian Tonna’s Nexia would feature in many a government contract or consultancy until yesterday.

And Daphne Caruana Galizia would be murdered.

Reading this comment by Daphne has a spine-chilling effect. It thunders from beyond the grave and reverberates in our heads. There you have it. She knew that publishing these facts would not be enough. She knew that the police would do nothing with this evidence.

“It’s the Prime Minister’s chief of staff, so they’re not going to touch him.” Daphne was one of the select few who were aware at the time of the system of impunity that was already in place. Institutions had by then already been bent into submission. The saga was only about to begin.

Action by the police at the time might have prevented the disastrous vortex that was to follow.

Daphne Caruana Galizia began to die that night. She did not have to, but the nation was too blind to realize the possible consequences of this kind of revelation. Blinded by partisan bickering and by government propaganda the people would only serve as a fertile ground for institutional breakdown.

And murder.

This is what justice for Daphne is also about. We are a long way from that yet.

ADDENDUM:
This is how the lying lowlife scum reacted at the time. Thanks to @bugdavem on Twitter for the reminder.

Categories
Corruption Politics

Corrupt Kings & Exile

In my mind, good old King Juan Carlos of Spain remains the monarch who sat through the 1982 World Cup finals as royal of the host nation. I don’t have a particular fancy for royalty so my knowledge of whatever he has been up to since stopped there. Until, that is, news of the corruption scandal linking King JC to bribes paid by Saudis in connection with some railway contract.

King JC stepped aside and let his son take the crown but the scandal was not ging away any time soon. And it shouldn’t because let’s face it justice should be the same for all, whether or not there is a real or imaginary crown on their head. Today’s news that the former King is going to self-imposed exile in the Dominican Republic still does not exonerate him from any responsibility.

In a statement, King JC’s lawyers stated that he was not escaping justice and would still be available to prosecutors.

I am not quite sure how that story will end but it jars with the story of Malta’s very own disgraced King who continues to live beyond his declared means. While he may believe that these matters are private and “none of your business” there is no doubt that many questions remain to be answered.

The rules of our democracy are flaunted daily by the members of the political parties who have had the indecency to craft the rules to their needs over the last decades. From political party financing, to personal accounts and interests of the various MPs, to the make up of the various authorities that are supposed to uphold the rule of law, all of them are guilty of taking the law for one big ride.

For there is no doubt that if Muscat’s annual declaration of assets were to be believed there is no way in hell he can be affording all this gallivanting and playing around with his imaginary jet-set. The class-obsessed couple (remember the call for a Middle Class for all) cannot resist to flaunt their extravagant lifestyle and in doing so they continue to beg questions that remain unanswered.

The disgraced ex-PM who presided over the most corrupt executive in Maltese history does not need to go into exile. The reason for that is that we still live in times of impunity, notwithstanding the cosmetic changes we have recently witnessed.

There are crooks everywhere, the situation remains as desperate as ever.

Categories
Constitutional Development

The rebels won’t let go

The heat is on at PN HQ. The 80 strong executive is meeting having been summoned by Adrian Delia. It’s time for a showdown with the 19 rebels showing no sign of surrendering their battle after the setback suffered by the hapless Presidential decision.

What would seem to be another long night has been kick started by another motion of confidence in Delia brought by Dr Michael Axiaq. The vicissitudes of the renewed PN leadership race is actually a tiny pixel in the much bigger landscape of the state of our political system. What interests me here is why the rebels insist on staying. Why the battle they are fighting is the battle, first and foremost, for the Nationalist Party.

Therese Comodini Cachia was quoted as saying that “it is not her intention to split the party”. Chris Said seems to be of the same opinion. And so on and so forth. Not for one second does the option of splitting from the PN and setting up a rival, larger, opposition party seem to have crossed their minds.

Make no mistake about what is happening here. Much as the rebels might be seen as voices for change away from the shady politics represented by Delia and the corrupt government, their inability to create a definite schism between themselves and the old wreck of a party they aspire to win back is telling.

The pull of the party is too great and that is the sign that the rebels, no matter how rebellious, are only willing to go so far to change the stagnant system that has a stranglehold on the nation. They are unable to cut off their dependency on a party system built to fit a constitution wrought in its image, and designed to fit a sick method of pathetic alternation like a glove.

I have written elsewhere that a new PN would have to renege everything it has been until now otherwise those who take over will only be prone to the same mistakes that have been committed in the past.

The rotten system that has taken hold of the nation is fighting back tooth and nail. Like zombies in a trance some participants in the political arena unwillingly lend themselves to the system’s fight for survival. Yesterday’s Presidential decision was such an example of the system’s desperate lurches at self-preservation.

Tonight, in the long night of knives and squaring of thoughts, another tentacle of the system attempts to survive to the detriment of a switch towards a healthier constitution.

We are a long, long way from recovery.

“If a political party does not have its foundation in the determination to advance a cause that is right and that is moral, then it is not a political party; it is merely a conspiracy to seize power.” Dwight D. Eisenhower.

Categories
Constitutional Development

George fought the law and Adrian won

PR 201337 – “Press Release from the Office of the President” does not feature on the DOI Press Release page. It should be there since PR 201336 and PR 201338 are both on the page. I tried to find out whether the President’s Office that has its own PRO had distributed the PR through the DOI. Unfortunately Caroline Muscat, theShiftNews editor, could not confirm because – get this – the DOI refuses to add theShiftNews to the newsroom list.

Why does the President (and for what matters, even the Speaker of the House) use the DOI for his PR? Shouldn’t they have their own PR office issuing its own press releases? But those are not the glitches in our democracy that we are here to comment today. We are more concerned with the content of the PR 201337 because it concerns the long-awaited disquisition by the President (upon advice of anonymous legal experts) concerning the issue of the Leader of the Opposition in the House (LOOH for short).

Let us begin from the end. At the end of his statement, the President invokes the Principle of Necessity as the underlying reason for his decision. The beauty of the use of this principle is that it sets the minds at rest of all those who disagree with the interpretation favoured by the President and his men (and Adrian Delia of course). Why so? Well the reason is simple. The Principle of Necessity is used as a last resort in the words of the medieval jurist Henry de Bracton “when that which is otherwise not lawful is made lawful by necessity”.

In layman’s terms the President is saying that he is conscious of the unlawfulness of his decision and interpretation but a higher necessity required him to rule in such a manner anyway. It would be facile to blame the President’s medical background but that would mean ignoring the legal savants who deemed this perilous advice to be good enough for him to administer on the nation.

Said advisors skimmed through Article 90’s inherent contradictions and in lieu of providing a solution based on law, they chose to apply the aforementioned Doctrine of Necessity: an unlawful solution in the better interests of… There lies the crux… the better interests of whom? In the words of the President this would be the “protection of the democratic process and the serene atmosphere which must reign in Parliament and in the country in general”.

In opting for this doctrine the President’s advisors steamrollered over any consideration concerning article 90 other than the admission that a combined reading of 90(4) and 90(2) could result in revoking and appointing Adrian Delia ad infinitum. Having discarded the possibility of leaving the LOOH office vacant (there will be a LOOH according to article 90 has been read as there will be one at all times) the solution was simple: we keep him there because it is a remedy for serenity.

The ball was then thrown into the political party court (from whence it came) with the President washing his hands of the problem and saying “come back when you have a new leader of the party or when you have solved your trust issues”.

Which begs the question. How serene and progressive is our parliamentary democracy when a President reads the constitution (unlawfully by his own admission) in such a way as to impose a LOOH on the opposition who has lost the trust of 2/3 of them?

The press pounced on the words ‘depart from the constitution’ when reporting the President’s Press Release. It’s worse. He openly broke it. “That which is otherwise not lawful” remember?

George Vella fought the law and Adrian Delia has won. Time to quote Swift again…

“It is a maxim among these lawyers, that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of decreeing accordingly.”

– Jonathan Swift, Gulliver’s Travels
Categories
Constitutional Development

Delia’s Crazy Catch 22

It’s a crazy cycle in Maltese political and legal life but every now and then a public exponent decides to unearth his own version of Joseph Heller’s Catch 22. The latest to jump on the bandwagon is none other than the Dar Centrali resident-in-chief Adrian Delia.

Fresh from his visit to dithering President George Vella, he announced ad urbi et orbi from his bedside table, erm, podium at Dar Centrali that he is still Leader of the Opposition and Leader of the Party. He then proceeded to issue a thinly veiled challenge to the Rebel MPs (it’s a moniker that stuck). When they go to the President for their individual confession they would do well to bear in mind that should they succeed in getting his position revoked the next step would be his reappointment as Leader of the Opposition.

Yes, you read that right. As a strategy it is utter genius. It plays on ignorance of the law of the worst kind. The kind that might even convince a hesitant President not to do the right thing. What Delia is saying is that sure enough article 90(4) should lead to his revocation if all the conditions fall in place (as they did after that fateful vote) but we then need to appoint a new leader of Opposition in Parliament.

And what does the article on appointment (90(4)) say if not that the Leader of the Party in Opposition should be appointed Leader of the Opposition in the house. Logical no? Delia wants to trigger a Catch 22 loop simply to be able to force the MPs to challenge him in his home turf. Dar it-Tesserati.

Sadly for Delia the law is not an ass unless it is read/interpreted by one. This literal interpretation cannot and should not function. If the Party Leader no longer enjoys the confidence of the majority of MPs then he will not be reappointed. Not unless George Vella falls for the Catch 22. The President will then fall on that member who enjoys the confidence of the majority. And that, my friends, is definitely not the Dar Centrali resident.

“There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

Catch 22 , Joseph Heller
Categories
Constitutional Development

The Constitutional Matters (I)

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

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

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

Appointment

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

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

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

Vacancy

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

Revocation

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

Article 90(4), Constitution of Malta

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

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

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

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

Political Party Leadership

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

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

And the UK

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


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

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

Ministerial and Other Salaries Act (1975), Article 2