Writing in today’s Times of Malta controversial ex-politician Franco Debono discusses recent happenings in the field of constitutional reform. The article titled “The reforms we implement should be our own” concerns what Franco calls “the colonial mentality of having reforms imposed”. Constitutions and constitutional reforms must be autochthonous Debono tells us and not granted by a foreign sovereign.
What interests me today is the basic premise of Debono’s argument: that we are having reforms imposed on us by some foreign power or authority much in the same way we depended on sovereigns granting us constitutions in the past.
In simple terms, what Debono is advocating here is that any changes to our constitution must not be imposed from the outside but must come from within the country (“We the people”, presumably through the able hands of our representatives and their advisors). There is very little to criticize here: the sovereign constitutional power resides with the people who delegate their representatives (and specialists) to give legal shape to that power.
Debono does not stop there. He speaks of what he calls ‘the unfortunate and tragic circumstances in which the Venice Commission, a respected organ of the Council of Europe, was requested to make proposals about this country’s institutions two years ago”. After outlining what he terms the Commission’s ‘proposals’ he states the following:
Benefitting from the expertise of international bodies is one thing. But having fundamental structures extensively imposed on the country by external institutions is humiliating and marred by a bitter colonial taste, especially when those proposals have a local origin. Steering away from a colonial mentality towards a sentiment of national pride is the greatest reform that this country needs. The rest should follow.
The reforms we implement should be our own – Franco Debono
This is where Debono’s original premise falls flat. The implication is that the Venice Commission is imposing content on Malta, and that somehow the constitution of Malta has slipped from the sovereign hands of the people into the hands of foreign writers. M’ghadniex rajna f’idejna (we no longer have the reigns of our country in our hands). This jingoistic, nationalistic nerve that Debono is tapping fits conveniently in the current narrative of misplaced patriotism and anti-European sentiment.
The assertion of any imposition of the actual rules and laws and structures is false. This argument can be extended not only to the Venice Commission (an institution within the Council of Europe) but also to the Commission and Court of Justice of the European Union (institutions of the EU), both of which may be tasked to review the conformity of Malta’s laws and regulations with the rule of law.
Debono is ignoring the fact that such institutions are tasked with checking the standards of our laws and not their content. Every member state of the Council of Europe and European Union remains the sovereign master of its legal system. Member states are free to alter and draft their own laws as they deem fit but such laws are tested against standards which the very same member states have agreed to in their full, sovereign membership of international communities.
Think of this as a VRT test. You are free to purchase any car you choose and can tweak it to your liking so long as it conforms with the agreed standards for roadworthiness. A VRT tester does not impose a car on you but makes sure that your car is up to the standards everyone agrees to.
The Venice Commission will look at any suggested reform which the Maltese state makes. It will do so using a standard measure that is the rule of law. Should any of the measures fail to fit that standard the Venice Commission will make that known. The same goes for potential cases before the ECJ. As the Polish government found out recently, every Stateis free to change its system of appointment of judiciary – so long as that system guarantees an observance of the basic tenets of the rule of law.
Being held to certain standards is not the same as being forced to accept laws that are not ours. The standards are standards established for our own good and which we, as a sovereign nation member of international communities, adhered to. Our laws must be safe. Safe for us, the citizens who abide by them.
At the heart of such standards is the interest of “We the people” who are protected by their application. Far from being an imposition, it is an international guideline of democratic standards that we are being asked to conform to.
Given what Franco calls the “unfortunate and tragic circumstances” into which our country was dragged, the fact that the abusers of our constitution and law for so long are now being set to a higher standard when tinkering with the laws is a small but worthy consolation.
The only colonial mentality of submission would be to allow those who have held our constitutional rights hostage for too long in the name of a party duopoly to dupe us into thinking that conforming to the right standards is some blow to our national pride.
