Author: Jacques René Zammit

Categories
Constitutional Development

Unpopular Representation

“(An MP) his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. … Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion” – Edmund Burke

It’s a quote that’s brought up time and time again. Edmund Burke explaining his model of “trustee representation” as opposed to the idea of “delegated representation“. The question being the nature of an elected members’ duties towards his constituency.

On the one hand the idea of an MP as a trustee means that the electors choose a person who they deem is best suited to work and represent them in their best interests using his judgment in order to determine what those best interests may be. “These ‘trustees’ have sufficient autonomy to deliberate and act in favour of the greater common good and the national interest, even if it means going against the short-term interests of their own constituencies.”

On the other hand a “delegate” MP would be a mouthpiece of his constituency. “In this model, constituents elect their representatives as delegates for their constituency. These delegates act only as a mouthpiece for the wishes of their constituency/ state, and have no autonomy from the constituency only the autonomy to vote for the actual representatives of the state. This model does not provide representatives the luxury of acting in their own conscience.”

What is the role of our elected MPs today in the age of social media and supposed rapid consultation of the constituent’s needs and opinions? Has the development of technology capable of immediate and real-time consultation driven inroads into the notions of representation particularly in parliamentary democracies? Is there still any room for the ‘mature judgment’ and ‘enlightened conscience’ of the Burkean representative?

Not if you went by Italy’s 5 star Movement there isn’t. With the Italian parliament due to take a vote as to whether or not lift the parliamentary immunity accorded to Lega leader Salvini in order to allow magistrates to prosecute him in relation to alleged crimes in the Diciotti case, the M5S – Salvini’s government coalition partner party – decided to consult its grassroots base. Using an online voting platform called Rousseau, members of the movement were asked (admittedly using a convoluted questioning system) whether they believed the vote should go in favour or against Salvini.

Now if we set aside all the vested interests of the populsit party trying to keep its place in government by not prejudicing the coalition we still have a basic issue of delegation vs trustee. In fact the M5S parliamentary members are reduced to automatons who are simply delegated with the duty of voting in parliament in accordance with the outcome of the online vote. As it is, 59% voted to grace Salvini and that 59% will be ‘translated’ into a binding order to all M5S MPs to vote accordingly. Which is in itself strange because strictly speaking the online constituency actually sent a message that around 60% of MP votes should go for saving Salvini while 40% should not. Be that as it may, the parliamentarians occupying M5S seats will not use any discretion or judgment of their own when exercising their vote. Worse still, they cannot for example exercise their discretion and say that a vote lifting immunity would be more in accordance to the mandate and principles upon which they were elected. A tough one that.

In another corner of the EU (at least for now) we have heard the argument of constituencies that have voted for Brexit over and over again. Opposition to the “second vote” has been propped up by the contorted reasoning that “the constituency would view a second vote as a betrayal” especially where the constituency voted for Brexit first time round. The whole Brexit conundrum has in fact thrown the delegate v. trustee debate back to the forefront of discussions on the exercise of parliamentary powers and sovereignty.

On the one hand the delegate option pays lip service to the “Brexit is Brexit” mentality. It serves as an illogical short-cut that somehow believes that an uninformed decision taken once during a “consultation” process somehow bars any future reconsultation once the facts are clearly on the table. It excludes with absolute certainty any notion of trusteeship on the part of the politicians in parliament who are therefore expected to act solely and exclusively on behalf of the 17 million one-time voters and without throwing in any weight of ‘mature judgment’ or ‘unbiased opinion’.

The magnetic/opportunistic attraction of the delegate option is also a lazy way out for the populist politician who rathaer than boldly lead through weighted judgment and analysis for what he could determine to be the common good prefers to rely on the safety of numbers and polls. This has created a tension within the traditional form of representation in parliaments – parties – with the delegate-minded representatives increasingly finding the trustee-oriented colleagues to be irritatingly frustrating.

The recent split within the Labour party is welcome proof that provided there is enough tension the former ties that bound party loyalists together are finally being broken. Macchiavellian manoeuvering aside, there is hope when it is finally understood that party loyalty need not trump loyalty to principles and ideals.When such principles and ideals mean a shift to trustee-oriented politics then it is all the better for the health of a parliamentary democracy that will no longer veer towards badly considered decisions made for and by the masses that lead to nothing but chaos.

Categories
Mediawatch

Judge Grixti’s Catch-22

“They don’t have to show us Catch-22,” the old woman answered. “The law says they don’t have to.”
“What law says they don’t have to?”
“Catch-22.”


Catch-22, Joseph Heller

Konrad Mizzi, the government and anybody with an interest in transforming the Mizzi/Schembri Panama Papers issue into yet another story of apparent ‘allegations’ are crying victory all over the social media following the Appeals Court decision to overturn a lower court’s decision to allow an in genere inquiry (inquest-inkjesta) to go ahead into allegations of money laundering by the government’s star-minister.

Ignorance of the law has always been abused of and politicians will continue to do so, as long as citizens are happy to be taken for a ride. The Court decision today is all about not allowing an inquiry to go ahead. It does not exculpate Mizzi – far from it. The whole judgment reads as a technical examination on whether or not the grounds exist for an in genere inquiry to go ahead. In layman’s terms the Judge was examining whether the report that was made was substantial enough to justify starting an examination of facts in order to preserve such facts for what could eventually be a prosecution.

The worry in today’s Malta is that the systemic breakdown that includes the breakdown of the rule of law has affected every branch of our democracy’s institutions. Our Justice Minister constantly takes pride in reminding everyone who complains that, among others, we have a faultless judicial appointments system. And yet.

Yet the Venice commission report clearly pointed out faults in this appointments system. The judiciary remain firmly within the hold and control of the executive – particularly with regards to their hopes for their future career development. It would not take much to begin to wonder whether judgments are being written in reverse – a decision is taken and then an excuse for a justification for a decision that grasps at straws to sound “law-worthy’ is conjured up as a supposedly good reason to reach that decision that has already been decided.

Judge Grixti’s ruling is faulty. There is no harm in saying that because, as I know very well myself, drafters of judgments are far from being infallible. It is not enough to claim that it is faulty though – an explanation must be given. @bugdavem on twitter gave the perfect explanation in a thread that I am reproducing below.

I will only add that Grixti seems to have come up with a Catch-22 situation for anyone wanting to report a crime with the hope to get an inquiry in genere going.

It goes something like this: You need an in genere inquiry to investigate, find and confirm the existence of proof that may be used for a future prosecution of a crime. In order to get an in genere inquiry going you need to provide the type of proof that would normally be found and obtained by the in genere inquiry itself. See? Grixti’s very own Catch-22.

Bugdavem on twitter

The catch with Judge Giovanni Grixti’s ruling is (and this is where you realise that the Maltese courts have – intentionally or otherwise – no understanding of money laundering), that attempted money laundering is in itself a crime punishable by 3+ years imprisonment.

What does that mean or entail? Money laundering laws set a low threshold for evidence given that, in practice, the machinations that might be employed by launderers or attempted launders could frustrate justice.

In a case of actual money laundering, the threshold needed for the prosecution is prima facie – at face value – that there is no logical or lawful explanation for the monies to be laundered. The Maltese courts have held jusrt this in the past and it is also clearly stated in the law.

Once that is proven then it is up to the defendent to prove to the satisfaction of the court that any monies and arrangements were in fact lawful and legitimate. This is the rule for actual money laundering as well as the threshold and burdens of proof required.

For attempted money laundering, the threshold is even lower since given that this is an “attempt” one would need to show prima facie the intention and preliminary steps taken to implement that intention.

In Judge Giovanni Grixti’s decision to reject even the opening of an inquest to saveguard evidence (ie, not even for a prosecution so the threshold is actuallylower) he ruled that he expected a level of evidence that is higher than the prosecution in an actual case of laundering .

This is the active part where he stated that is was incumbent on the complainant, here Simon Busuttil, to prove how the series of events and machinations were illegal (as opposed to the threshold of prima facie no logical or lawful explanation).

Anyone with half a brain can see how bizarre this is. The threshold to request a magistrate to safeguard evidence in attempted laundering which the Police won’t investigate is (by virtue of this judgment – J’accuse) actually (set) higher than that required by the Police to secure a conviction for actual money laundering.

Categories
Citizenship Values

Public Cleansing, memorials and humanity

Paolo Polidori’s Facebook post

Last Friday (the 4th of January) the vice-mayor of the Italian city of Trieste put up a post on Facebook in which he explained that while walking through one of the streets of the city he had come across a pile of covers, jackets and other similar stuff.

“Since there was nobody around”, he posted, “I presumed that they were abandoned and as a normal citizen who has at heart the decorum of the city, I collected them and threw them away, may I add with satisfaction: now the place is decent! Will it last? We will see. The message is: zero tolerance. I want a clean Trieste!! PS I immediately washed my hands. And now may the do-gooders unleash their criticism, I don’t give a damn.”

Paolo Polidori hails from the party of Matteo Salvini, the same party that wants a zero tolerance policy on migration. He knew full well that the covers, jackets and other paraphernalia that help to shelter from the cold were not abandoned but belonged to a clochard – a homeless person. His act though was met with widespread indignation.

A group of citizens met at a caffe’ in Trieste and opted to act. They collected new covers and jackets and placed them in the same place on Via Carducci where the Vice-Mayor had performed his act of public cleansing. They added a cardboard sign with a written apology to the homeless person – an apology in the name of all the people of Trieste.

The clochard has yet to turn up on the site and claim his new materials for warmth and comfort. What happened though is that the space where the apology note was left has become a symbol: it has taken on a political meaning. It has become a focal point of public expressions of solidarity. On Sunday numerous citizens of Trieste visited the site and left something: a scarf, a sweater, a pullover a beret…. a cushion.

It is ironic that the story of the clochard’s sleeping space in Trieste is the story of memorials in reverse. In other parts of the world, Ministers and government apparatchiks hang on to the execrable excuse of cleanliness and public order in order to attempt to obliterate a public expression of justice and solidarity. Trieste’s space transformed into a strong symbol after the first cleansing by a misguided politician.

Other spaces around the world are still ‘cleansed’ daily by representatives and supporters of a political class that twists the understanding of basic tenets of the legal order and transforms the rule of law into rule by law. Public memory and expression is of fundamental importance in a democracy – just look at what is happening in Hungary and Czech Republic were the governments in the two countries are doing their utmost to forget to commemorate Imre Nagy and Jan Palach.


Categories
Constitutional Development

The Sale of Public Land

It’s 1626. A Dutch merchant has his eye on a peninsula of land in the region of the New World that the local natives (the Munsee/Lenape) called Manna-hatta (which literally means “the place for gathering wood to make the bows”). Place names tend to have this descriptive element in the local language – Żebbuġ. Għasri, Għajnsielem, Marsalforn. It’s the same the world over. Land is land and what it gives to the people who live on it.

According to a letter by Pieter Janszoon Schagen, Peter Minuit and Dutch colonists acquired the Manhattan peninsula on May 24, 1626, from unnamed Native American people, who are believed to have been Canarsee Indians of the Lenape in exchange for traded goods worth 60 guilders,

“The original inhabitants of the area were unfamiliar with the European notions and definitions of ownership rights. For the Indians, water, air and land could not be traded. Such exchanges would also be difficult in practical terms because many groups migrated between their summer and winter quarters. It can be concluded that both parties probably went home with totally different interpretations of the sales agreement.”

It gets interesting because it turns out that Minuit negotiated with the chief of the Canarsees, when it was the Weckquaesgeeks who actually mostly lived on Manhattan. It was an easy deal to obtain. The vendors would get the rights to a piece of land while the sellers… well the sellers had no concept of right to property and in any case they were nomadic people who actually had no real ties with that piece of land… at least not as much as another tribe who was not involved in the transaction.

Public land – land that belongs to the people. It forms part of the core concept of public goods (res publica). In roman law it was the concept of a good publicly held in common by the people. Res publica also refers to public affairs, affairs relating to the management of the common good. When public land is sold or managed, such sale or management is supposed to be transacted in the interest of the people and their common good.

Modern day republics entrust their governments with the management of public good. That is why transactions involving public land should be conducted with the utmost transparency and no amount of excuses of “commerical sensitivity” can hold water. Transparency is but one safeguard. Accountability to parliament, to watchdogs and to EU institutions is another. The sale of public land – when it is really necessary and justified must take place following the best standards that guarantee the public good is the foremost concern.

When the citizens of the nation fail to understand the importance of the monitoring of such processes then they are open to being conned time and time again by the next Peter Minuit. The tribal leaders of today’s demos who take advantage of this ignorance have little care of the consequences of their transactions. The trinkets and guilders of yesteryear have been transformed in the corrupt practices of today.

Oh foolish nation that allows itself to be led by jackals. The situation is desperate, there are crooks everywhere.

“quotus quisque reliquus qui rem publicam vidisset?
Igitur verso civitatis statu nihil usquam prisci et integri moris: omnes exuta aequalitate iussa principis aspectare…”

(How few were left who had seen the republic!
Thus the State had been revolutionised, and there was not a vestige left of the old sound morality. Stript of equality, all looked up to the commands of a sovereign…) – Tacitus, Annals (I, 3-4)

Categories
Retro J'accuse

La Liberta’

Vorrei essere libero, libero come un uomo.
Vorrei essere libero come un uomo.

Come un uomo appena nato
Che ha di fronte solamente la natura
E cammina dentro un bosco
Con la gioia di inseguire un’avventura.
Sempre libero e vitale
Fa l’amore come fosse un animale
Incosciente come un uomo
Compiaciuto della propria libertà.

La libertà non è star sopra un albero
Non è neanche il volo di un moscone
La libertà non è uno spazio libero
Libertà è partecipazione.

Vorrei essere libero, libero come un uomo.
Come un uomo che ha bisogno
Di spaziare con la propria fantasia
E che trova questo spazio
Solamente nella sua democrazia.
Che ha il diritto di votare
E che passa la sua vita a delegare
E nel farsi comandare
Ha trovato la sua nuova libertà.

La libertà non è star sopra un albero
Non è neanche avere un’opinione
La libertà non è uno spazio libero
Libertà è partecipazione.

La libertà non è star sopra un albero
Non è neanche il volo di un moscone
La libertà non è uno spazio libero
Libertà è partecipazione.

Vorrei essere libero, libero come un uomo.
Come l’uomo più evoluto
Che si innalza con la propria intelligenza
E che sfida la natura
Con la forza incontrastata della scienza
Con addosso l’entusiasmo
Di spaziare senza limiti nel cosmo
E convinto che la forza del pensiero
Sia la sola libertà.

La libertà non è star sopra un albero
Non è neanche un gesto o un’invenzione
La libertà non è uno spazio libero
Libertà è partecipazione.

La libertà non è star sopra un albero
Non è neanche il volo di un moscone
La libertà non è uno spazio libero
Libertà è partecipazione.

Categories
Values

9 months