Tag: rule of law

Last night, the Parliamentary Assembly of the Council of Europe voted overwhelmingly to approve a report on Daphne Caruana Galizia’s assassination and the state of the rule of law in Malta. The resolution  listed a series of “serious concerns” over the investigation into the murder of Maltese journalist Daphne Caruana Galizia, and demanded the setting up of an independent public inquiry into her death within three months.

The Assembly also noted that “The rule of law in Malta is seriously undermined by the extreme weakness of its system of checks and balances.”. It called on Malta to urgently implement, in their entirety, reforms recommended by the Council of Europe’s Venice Commission and its anti-corruption body GRECO, noting that the recent State Advocate bill was “inadequate to reform the office of Attorney General”.

Not many international media outlets carried the result of the resolution in its immediate aftermath. Bar the chatter on Maltese media and on social networks the impression would be that the Malta Government’s damage limitation exercise has worked. Has it? Are we faced with another international institution that has more bark than bite? Will there be any consequences following the resolution? What can we expect?

What can the PACE do for me?

To begin with here is what the PACE consists of:

The Parliamentary Assembly of the Council of Europe (PACE) is the parliamentary arm of the Council of Europe, a 47-nation international organisation charged dues to their members, dedicated to upholding human rights, democracy and the rule of law. The Council of Europe is an older and wider circle of nations than the 28-member European Union – it includes, for example, Russia and Turkey among its member states – and oversees the European Court of Human Rights.

Source Wikipedia

It’s larger and older than the European Union structures and it has contributed to the development of human rights, democracy and the rule of law. As one of the French MPs observed in yesterday’s debate, a newly independent Malta was eager to sign up as part of the family of democratic states and became a member of the Council of Europe back in 1965. PACE also elects judges to the European Court of Human Rights from among the three nominees that each state sends. It is not just a talking shop, the resolutions and actions of PACE have direct consequences on democratic development – from election monitoring to rule of law campaigns. Where it differs from the EU parliament is that its decisions can never be binding.

Why bother then? Resolutions of the PACE as well as those of other constituted bodies under the Council of Europe – notably the Venice Commission – carry weight not just within the CoE institutional framework but also beyond. The European Court of Justice has referred to reports by the Venice Commission in its jurisprudence as recently as this week in the Commission v. Poland (ECLI:EU:C:2019:531) case where the ECJ found that the Polish legislation reforming its judiciary to be contrary to EU law.

The investigative work that precedes the report and the reports themselves that are then subject to votes to become resolutions by the PACE have been shown to have a strong probative value in international fora. While these do not have an obligatory nature insofar as the recommendations are concerned, they will still carry much weight in procedures such as the EU rule of law framework.

The Debate in Strasbourg

Yesterday’s debate that preceded the vote on the final resolution on Omtzigt’s report was an eye opener in many ways. We have been used to the nationalistic and protectionist rhetoric that Malta government propaganda uses to distract from the matters at hand. The discourse of “traitors” often crops up in such situations when, as the government would have it, “our linen are hung in public for all to see”. The reality is different of course.

Yesterday’s debate was a look into the deficiencies that have become more and more apparent in the functioning of Maltese democracy. The government of Malta would want this to seem as an attack on the nation. As the narrative goes, Malta is a thriving, successful economic miracle that is now being regarded with jealous eyes by others. The death of a high profile journalist, the narrative continues, is only being used as an expedient by the enemies of the state to undermine its success. Not too strangely this is the same kind of narrative spun by autocratic nations when defending themselves in such fora. Such, as we shall see, was the call of the Azeri spokespersons who went so far as to allege corruption in the CoE.

Objectively speaking though, the concern by the CoE and within the CoE for the democratic and constitutional structures of one of its member states is a concern for democracy, rights and the rule of law. Such values concern directly the citizens of that very state that is under scrutiny. Checks and balances for proper representation, access to rights, absence of corruption are all in there in the interest of the citizen. What the report tries to establish is (a) the existence of the problem and (b) solutions thereto.

Let’s be absolutely clear about this: the “problem” is a problem that will eventually be felt by the Maltese people. The concerns raised at the Council of Europe are raised in the interest of the good of the Maltese people. It is anything but an attack on the people. It is an “intervention” and a call to make sure that the interests of the Maltese people are safeguarded.

With friends like these

So the Government of the Republic had more than one option and approach available to it. It could, as it has done since the first international observations of the Maltese legal framework had begun, spin the counter-attack of denial and counter-propaganda. It could have also stood up, taken note of these concerns and taken immediate action to remedy the problem – in the interest of the very people who have mandated it into power.

That the Government of the Republic chose the first option – a defence of counter-attack and spin – is not surprising given its track record. What needs to be made clear is that by taking this position it placed itself in a diametrically opposite position to that of its people. Yes. The position of defence and denial was a first step in admission of responsibility. By denying the existence of a well-documented problem, by rabidly opposing any notion of backsliding of the rule of law, the Government of the Republic adopted the position of the accused who was responsible for all of this.

This was no longer simply a vote on a report. This became the case of “the People of Malta vs the Government of the Republic”.

That responsibility puts the Government at direct loggerheads with the interests of its people, the very same interests that the CoE through its resolution is intending to safeguard. Any doubts that remained at the start of the debate regarding this assertion would immediately vanish once the debate started.

To begin with the government’s counter-resolution aimed at torpedoeing the process was backed by three states who, let’s just say, are not the first states that come to mind when one thinks of champions of democracy. Azerbaijan, Malta’s eurovision douze points buddy, was accompanied by Viktor Orban’s Hungary and San Marino. San Marino might come as a surprise if you are unaware that the micro-state has been acting as a trojan horse for Putin’s Russia and this in not too covert a manner. With friends like these who needs enemies?

Two weeks before the debate, Manuel Mallia mistakenly messaged the whatsapp group made up of Malta’s CoE representatives urging them to make use of the upcoming Mediterranean Leaders summit in Malta to lobby against the Omtzigt report. The government was desperate to shoot down this message – which goes to show how relevant it really is.

When the debate got going the divide became all the more evident. The bleating by Muscat’s emissaries was echoed only by their Azeri counterparts. A pathetic display of dictatorial rhetoric was echoed across their lines shooting the messenger (Omtzigt) and accusing the Council of Europe of using the death of a journalist for whatever obscure political motives their minds could conjure. The irony of being on the same side as the government of Azerbaijan notoriously illiberal with its press was completely lost on the Malta Government delegation.

The speakers from across the political spectrum were unanimous not only in their support for the report but also in their condemnation of the behaviour of Muscat’s government. From the French to the Icelandic to the British (to the Turkish to the Armenian); they all expressed their dismay about the fact that the wonderful nation of Malta and its beautiful people have been brought to this situation. The powerful phrase uttered by Paul Gavan (UEL) echoed around the walls of the chamber ” when in a hole… stop digging”.

No amount of landslide populist electoral victories would erase this logic. And that is where the irony of it is at this stage. The People who were being defended and advocated for in the hemisphere are still, in their majority, blissfully unaware of the dangers of the erosion of the rule of law. While the omnishambles that is the official opposition fails to direct its resources to this gravest of problems it is left up to civil society and the few advocates for the rule of law to carry the flag to these international fora with the hope that something is done before it is too late.

The recent construction crisis in Malta might have been a first flash into the real consequences of rule of law breakdown. Legislative laxity, poor monitoring, government by lobby and general impunity will eventually have their negative effects and the main sufferers are the people. Unfortunately we might have to wait for more such effects before the people get on board of their own side and stop getting wooed by the empty rhetoric of those who are supposed to be managing the country in their interests.

The case continues…

The case of the People of Malta vs the Government of Malta is not finished yet. The next step is a potential reference by a Maltese court to the Court of Justice of the European Union in a case concerning the appointment of the judiciary in Malta. The momentum might be building up for the people to find its voice again. If only the opposition, in the wider sense of the term, would get its act together and unite with one voice. As they have seen there are allies to be found everywhere… the crooks are beginning to be outnumbered.