Author: Jacques René Zammit

Categories
Rule of Law

Majority Rules Not Ok

Malta’s Minister for Transport, Infrastructure & Capital Projects has gone on record saying something to the effect that “majority rule is higher than the rule of law”. One cannot stop underlining the dangers that lie behind this kind of statement. To begin with, this is a blatant show of ignorance of the laws that bind us. It flies in the face of hundreds of years of philosophical treatises on social contract, on constitutions, and on the basic principles that underlie our law-based societies.

Rousseau (The Social Contract), Locke (Second Treatise on Government), Hume (Of the Original Contract) and Madison (The Federalist Papers No. 10) – that is a tiny roll call of the kind of people who tried to get their heads around the problem of just representation in society. At the second rally organised by CSN after Daphne’s assassination I had spoken of the people as sovereign – the ultimate depositaries of the powers of the land. That was not a concept I pulled out of thin air. Our legal systems are all intended to crystallise the way that ultimate power (of the people) is lent (and we emphasise lent) to different branches of the state in order that they may govern. To govern in the name of the people, for the people, by the people. Again, not another catchphrase.

Later developments to the philosophers’ ideas came in the form of modern liberal constitutions such as those begotten by the American and French revolutions. A representative government, a separation of powers and a basic set of rights that was above the power of the legislature. From the Magna Carta onwards in fact, there was the gradual realisation that a sovereign people would still subject itself voluntarily to regulation by a set of fundamental truths that would be inalienable (could not be taken away) even by those who have been entrusted with creating laws for the day to day functioning of society.

“We hold these truths to be self-evident…” is how the second paragraph of the American Declaration of Independence begins. The colonies were protesting the abuse of the representative power by their King and in that document they justified their right to “dissolve the political bands which have connected them with another”. Among the first of the self-evident truths was The First Amendment which precluded the lawmakers from enacting laws which abridged freedom of speech, the freedom of press and the freedom of religious belief.

The basic rules would be guaranteed by other branches of the state. Alexander Hamilton outlined this in The Federalist Papers No. 78, when he spoke of the Court being the ultimate interpreter of the meaning of the Constitution. In his words, the Court would stand “between the people and the legislature, to keep the latter within the limits assigned to their authority … A constitution is in fact, and must be regarded by judges as fundamental law.. the Constitution ought to be preferred to the [legislature’s] statute, and the intention of the people to the intention of their agents.”.

Modern constitutions are replete with checks and balances of this sort. The point of the checks and balances is that tyranny is avoided. The point is that the abuse of power by a part over the whole is prevented.

The role of a ‘majority’ in our constitution starts and stops with the election of our representatives in parliament that lead to the selection of a government entrusted with executive power for a short mandate. The next day of an election the concept of ‘majority vote’ is technically redundant except when applied within the rules and regulations of parliamentary votes for the enactment of laws.

Above all, the government of the day as an executive – and every other branch of the state – have no business with using the concept of “majority rule” to trump all other concepts of legal accountability. To do so would be to usurp the very concept of control of power and representation. Ian Borg’s concept of majority rule trumping the rule of law is an abomination to the concept of democratic representation. The same can be said of Alfred Sant’s declarations in the European Parliament where the idea that “the people have voted” seems to have been bandied about as some sort of general absolution for any irregularities committed by the agents of government that was confirmed at the polls.

Whether willfully or through ignorance of the law, these statements become a declaration of war on liberal democracy. They represent a dangerous step in the current situation where the rule of law is withering before our very own eyes.

They must and shall be countered.

The people united can never be defeated.

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
Mediawatch

Manuel Mallia’s Rule-By-Law

 

Speaking in parliament last night, ex-Minister Manuel Mallia took a swipe at whoever had anything to do with the leaking FIAU documents. In a scene befitting pre-1989 East Germany, Mallia told parliament that the leaker of the report as well as anybody having access to it (including the PN) should be prosecuted because they are guilty of a crime having violated the confidentiality of said documents. “The documents of the FIAU needed to be kept secret because the unit’s investigations were sensitive and disclosure of information would undermine those very investigations”, Dr Mallia said.

What we have here is a clear example of “rule-by-law” where the strict letter of the law is used to silent dissent and to annihilate any possible means of rendering the powers that be accountable. Manuel Mallia’s threats, for threats they are, do not come in a vacuum. They must be put in the context of the dismissal of former FIAU official Jonathan Ferris and of the FIAU Head of Compliance. They must be put in the context of the admission by most of the national press that they have been forced to revise archived reports under threat of expensive litigation. This must also be put in context of the lack of collaboration reported by the European Parliament PANA committee

In any other context but this, this matter would be considered as Whistleblower territory. In any other context the content of the leaked document would be of much graver concern, the consequences of the failure to act upon the content of such documents would be the focus of a responsible government. This is not another context. This is Malta of L-Aqwa Zmien – rule by law is misconstrued as rule of law, anything in the power of government to hide, to shut down criticism, to avoid proper scrutiny, to annihilate any dissonant narrative is fair game.

We are living in a time of Rule-By-Law. This is also why the calls for a return to a system of rule of law are being made.  In contrast to rule-by-law (rule by means of norms enacted through a correct legal procedure or issued by a public authority), Rule of Law implies also the safeguarding of fundamental rights and freedoms – norms which render the law binding not simply because it is procedurally correct but enshrines justice. It is the Rule of Law, thus understood, that provides legitimacy to public authority in liberal democracies.

Meanwhile Manuel Mallia’s witch-hunt had better expand internationally: Green MEP Sven Giegold’s website contains a link to leaked FIAU documents.

 

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.