Category: Library

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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.

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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.

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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

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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.

Categories
Constitutional Development Corruption Panamagate

We ain’t seen nothing yet

One by one they walked out of Mile End HQ with that pathetic smile that convinces only themselves and the diehard faithfuls that all is well in the State of Labour. No comments to the assembled press though, at least not until PM Abela walked out of the glass door of the infamous Dar it-Trasparenza. Abela was, rightly, the one to face the music and give some kind of rendition of what had gone in the meeting.

Good news first. Mizzi has been voted out of the Labour Party. The man who has been unfit for purpose since at least the Panama Papers revelations is finally party-less and has been left to fend for his sorry self (while still in quarantine).

In other news, Abela is still playing to the circus that voted his party back into power notwithstanding the fact that many of the what he calls ‘allegations’ were known to them in 2017. The accolytes gathered around him for moral support included such luminaries as Edward Zammit Lewis and Stefan Zrinzo Azzopardi and they were there to applaud and yell their support to make whatever happened that moment look and sound like a resounding victory.

Pressed and cornered to take a position about Joseph Muscat, Abela writhed and squirmed trying hard to build a case for not having ditched il-Kink along with the rest of the ballast. The biggest problem that Abela had was the elephant in the room : he could not say that Muscat deserved being ditched by Labour for the enormous responsibility that he has carried at the very least for standing by the Mizzi and Schembri Roadshow from the start.

He tried. He did say that had he been in Muscat’s place in 2016 he would have ditched Mizzi immediately. But Muscat’s responsibility goes further than that. It is a continuing responsibility borne by the fact that he stood square behind Mizzi and Schembri until yesterday. And here comes the elephant… that responsibility is carried by each and every member of the Labour governments who have stood square behind Muscat’s line of defences.

These are the Labour government and members who accused investigators and civil society of being traitors of the nation. They are the same members who backed Mizzi’s corrupt deals to a hilt. They are still unable to bring themselves to commit on a revision of every single contract and deal in which Mizzi was involved.

Abela today tried to get cheers for a non-achievement. His distraction biscuit today was that we would not be going to the polls any time soon (cue cheers and cries from the rent-a-crowd). The cries came from people who are just as tainted and just as mixed-up in this mess. As long as the collective responsibility for our nation’s current predicament is not borne then we continue living a lie.

As a friend of mine rightly noted earlier tonight: “Daphne Caruana Galizia would have still been alive today, had it not taken you ages to decide. Had our institutions been truly independent and allowed to function.”

That, Robert, is the reason we cannot have accolades and triumphalisms. You might convince yourself and your roadies that tonight’s vote is some big cut off moment. As far as we are concerned, we literally ain’t seen nothing yet.

photo: M. Mirabelli

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Constitutional Development Mediawatch

Rajna f’Idejna

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.