Author: Jacques René Zammit

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
Long & Short

Long & Short 3 – Delia Clutching at Straws

“Irid ikun il-Kap tal-Partit li jrid ikun il-Kap tal-Oppozizzjoni.”

Adrian Delia, former Leader of the Opposition, Leader of the Nationalist Party

1. FACT: This is rubbish being peddled by Adrian Delia. Pure and utter bullshit.
2. FACT: Even if we consider the roundabout way George “standby” Vella will ask every single member to confirm their lack of confidence in Delia. The point still stands – Delia’s appointment by the President to Leader of opposition in the house has to be revoked.
3. FACT: Delia’s insistence that the only person to fill the new post has to be the Leader of the Party is a lie. It is based on a literal interpretation of the article relating to the appointment of the Leader of the Opposition in the House.
4. FACT: If the Leader of the Party no longer enjoys the confidence of the majority of MPs in opposition then it is clear that the other option would be triggered: the MP from the majority party in opposition who enjoys the confidence of a majority of MPs will be appointed. This is what Delia is hiding from.
5. FACT: Delia is hoping to shift battleground to the challenge for leadership of the party with his various tesserati propping him up. This should not preclude George Vella from removing him from Leader of the Opposition in the House.
6. FACT: No matter how many facebook posts or poems Delia will use to claim that he still is the Leader of the Opposition in the House, he is, by law, already out of that office. We only have to wait for the President to finish his roundabout consultation and confirm the obvious – that Delia no longer enjoys the confidence of the majority of MPs in opposition.
7. FACT: The President isn’t bound by the PN Statute and has to apply 90(4) (revocation). With Delia’s reading 90(4) would be just a decoration.
8. OPINION: Again we are witnessing a political party attempting to manipulate constitutional issues for its own needs. Again a political party and its troubled leader is trumping the highest institution of the land – The President of the Republic. George Vella must stop dragging his feet and he must revoke Delia’s appointment yesterday.

Categories
Long & Short

Long & Short 2 – The Therese Comodini Cachia nomination

1. FACT: Therese Comodini Cachia has been nominated to the post of Leader of the Opposition of the House.
2. FACT: She has been nominated because she enjoys the confidence of a majority from the largest group of members in the opposition. (read majority from among the PN MPs)
3. FACT: Adrian Delia is still Leader (Kap) of the Nationalist Party.
4. FACT: The constitution does allow for a Leader of the Opposition to be different from the Leader of the Party
5. FACT: If the newly paraded statute of the PN can be interpreted in a way that violates the constitutional provisions then it is the statute that is null, not the constitution.
6. OPINION: the mere fact that the PN statute was rewritten in this way provides ample evidence of the arrogant attitude that the main political parties have with regards to the constitution. They have always considered it their playground and their carpet.
7. OPINION: Therese Comodini Cachia’s nomination is most welcome and this not because she is a woman (which should not matter one bit, ever) but because she has proven her mettle time and again. I was one of those who harshly criticised her original decision to not take her seat in parliament when elected. I recognize her change of mind as an active conscious choice to take part in the struggle against corruption.
8. OPINION: the true test for the PN is not which faction wins the next steps but rather whether the old PN reflected in the clumsy statute changes will be left to die and a new PN that reneges the tribalist aspects of its past will replace it. There is a long way to go.

Categories
Long & Short

Long & Short 1 – Delia Leader of the Opposition no more

The Delia is no longer Leader of the Opposition de facto post.

1. FACT: Delia no longer enjoys the confidence of the majority of opposition MPs in parliament.
2. FACT: Delia himself made this information public right after the vote in his press conference.
3. FACT: President George Vella knows of the two facts above, so much so he has declared himself to be on “standby”.
4. FACT: Under the Constitution with these facts in hand the President is OBLIGED to revoke the appointment of Adrian Delia to the Office of Leader of the Opposition.
5. FACT: The revocation can occur without any person replacing Delia immediately. The Office of the Leader of the Opposition could be vacant until when a new one is appointed.
6. FACT: A law abiding and constitution respecting Delia would have gone HIMSELF to the President to inform him of the fact that he no longer enjoys the confidence of the majority.
7. FACT: The Office of the Leader of the Opposition in the House and the position of Party Leader are mutually exclusive.
8. FACT: The ‘rebel’ MPs can agree on one among them who can replace Delia as Leader of the Opposition in the House. Then and only then should they present themselves to the Office of the President with such a new nomination.
9. OPINION: the shambles we are in continues to confirm the blatant disregard that our traditionally strong political parties have for the constitution. They have hitherto only used it as a means to their end. It will be hard to shift from this mentality.

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

Categories
Mediawatch Rule of Law

Train wrecks don’t need derailing

Adrian Delia has dismissed reports on messages between him and Yorgen Fenech as “a mudslinging attempt aimed at derailing his work“. The Sunday coffee table news was dominated by an apparent ‘scoop’ from the Times of Malta uncovering the supposed ‘exchange’ of Whatsapp messages. There had even been a dramatic build up with an earlier confrontation by a Times journalist.

Like some latter-day Saint Peter, Delia was repeatedly asked to deny whether he had ever had any form of relationship with Fenech by a journalist who was obviously already in possession of the ‘incriminating’ evidence (that would be kept on hold till the convenient Sunday publication date for full effect. No cocks crowd on the day of the interview but the Times made a big deal of the issue today.

Having seen the supposed Whatsapp exchange (and only on the basis of what has been shown), I think that I can safely conclude that this was a case of harassment by Fenech. Delia seems to have little time for his entreatments and rarely replies until what seems to be a fob off by passing Fenech on to Pierre Portelli to fix a dinner/lunch which we are not even sure ever happened.

The thousands of sleuths who grace the Maltese Republic were all over the social media condemning Delia for this latest “lie”. In his earlier interview with the Times journalist Delia had wriggled and writhed to try to give a legalistic reply – one that implied that if by communication there was meant some sort of dealing then no he did not communicate with Yorgen. Delia might have had this Whatsapp harassment in mind. Surely in normal circumstances nobody in their right mind would consider Yorgen’s pseudo-sycophantic messaging as a basis of some form of effective communication with Delia.

Surely. But this is not normal. In a world of Whataboutism gone mad we have the Sunday papers dominated by a very weak exchange that is neither here nor there while trying to build a very spurious link to Delia being another of Yorgen Fenech’s political relationships. For some context. Labour’s cabinet is still labouring (sorry) under the heavy accusation of having a member who had a much more than platonic relationship with Fenech. Another one is deep in business dealings with Fenech (not the Arrigo style). Yet here we are trying to cause a storm for a one-way set of messages.

You’d think that the Times would have a much higher standard in its quest of fulfilling the fourth estate’s role in a democracy. As things stand it seems to be a weak platform for the disgraced Labour government’s use to disseminate confusion. Worse still it leads to situations where Delia, of all people, can cling to a victim’s alibi of attempts at derailing him.

Now that’s a first. Delia has already long proven to be unfit for political action let alone leadership. His time as PN leader has proven to be a train wreck. To derail a train that is already wrecked and picking up the pieces is something that only a paper desperate for a distraction from the real issues can achieve.