Category: Library

Categories
Mediawatch

The P.N. must die

The weeks of long knives at the PN HQ have just been put in temporary suspension as an apparent reprieve has been found. ‘Party stalwart’ Louis Galea described as the man who transformed the PN into a ‘slick political machine’ between 1977 and 1987 has been appointed as AZAD Head and given the mission to reform the PN. Here is how the Times of Malta reports the former member of the European Court of Auditors when explaining his mission :

Image from Times of Malta
La Cavalleria Rusticana

Dr Galea said he had several meetings with Dr Delia before Thursday’s meeting of the executive and had discussed various ideas. He would now lead a reform process which would include all those within the party and the country who wished to help so that the PN could stand on its own feet. This, he said, was in the interests not just of supporters, but the country as a whole.  

Times of Malta, Louis Galea appointed head of PN Think-Tank, 5th July 2019

The reform is apparently motivated by the needs of the party to “stand on its own feet“. What comes next will blow your mind (as the click-bait peddlers are wont to proclaim nowadays): The PN needs to stand on its own feet in the interests of its supporters and of the country. Which is the kind of reasoning that normally precedes the launching of a floating device up a narrow sheltered waterway filled with excretion while inconveniently forgetting to equip said device with any means of propulsion.

Once again half of the PLPN hegemony will go through a process of renewal, regeneration and redesign much in the vein of what Inħobbkom Joseph had done with the Malta Labour Party in order to turn it into a ‘slick political machine’ (see what I did there?) that churns out the kind of electoral victories that are sure to cure any kind of “uġiegh” that any die-hard “partitarju” may have felt. And therein (among a myriad other considerations) lies the crunch… (Qui sta il busillis)

(Not) A man for all seasons

Louis Galea means well. I am sure he does. This is definitely not an attack on Louis Galea. Nor is it intended to be an attack on the current leadership (for want of a better word) of the Nationalist party. This post, like many posts before it on this blog, is an attempt to point out the real needs of the country, its residents and its political parties (strictly in that order). In order to do that we must focus on the current dramatis personae but we must also step outside the political machine that takes many givens for granted and patiently point out the emperor’s nudity for the umpteenth time.

Louis Galea was anointed by Adrian Delia in these times of trouble and overt rebellion in order to quell the forces of evil and convert them to striving for the party’s cause because unity in the party, with the party, for the party is presupposed to be the overriding panacea. We could waste time looking into the factions, the dissent, the anger, the hurt and the damaged pride of what appears to be a party on its last throes. We could. But it is beside the point.

Let us just state the obvious that this transfer of responsibility from Delia to Galea is clear evidence of the failure of the Delia mandate. Leaders are appointed to give vision. A change of leader inevitably implies a change of style and direction with the imprint he or she will give to the party as a whole. It is not just Delia that is being held to such standards… here is what we had to say on Simon Busuttil’s performance as deputy leader (and Muscat). In handing over to Galea on of the most basic of tasks he should be fulfilling as leader Delia has openly admitted his lack of grip over the party.

Galea will do what he has always done. There is no way that the veteran politician who has served the party will change his ways and adapt them to 2019 and the future. His successes in party management occurred in an era when the cold war was in full swing, the end of history had not yet begun and coincided with the period of constitutional tinkering at a national level that set the way for the PLPN Constitution – an adaptation of liberal democracy centred around the pathetic alternation in power of THE parties.

Nostalgics will look back tearfully at the age of Xogħol, Ġustizzja, Liberta’ and wish against wish that Galea will manage to bring back that golden period. What Galea brings to the table though is the iron-clad determination to restore a party to its former slick perfection. What he does not bring is the content, the values, that were advocated by that slick machine in that period of time. Sure enough the good old Fehmiet Bażiċi will be bandied around at some point but they will do so in the same manner as has been done in recent years – one that weighs the importance of policy choices on the shameful scale of positivity and popularity.

Galea’s eighties PN differed from today’s PN in one important aspect. An era kicked off in the late seventies and reached all the way to 2004 and petered out as PM Gonzi soldiered through the economic crisis. That era was one where the PN was driven by consecutive “causes” that allowed an alienation from the mantra that is “in the party, with the party, for the party”. The PN was a party with a national interest acting for the national interest. Which is what a party should always be.

A nation that was born out of constitutional struggles with its colonial masters had seen first independence and then a republican constitution in its first steps on the world stage. The Mintoffian interlude and experimentation with ad hoc socialism had led the country to a developmental stagnation. Fenech Adami’s PN took up the challenge with vigour and the steps that followed involved a transformation into a liberal democracy, an infrastructural boost coupled with the path to membership of the European Union.

Nationalist party electoral victories (and losses) in this period cannot be seen separately from the underlying causes that were being fought. No matter how slick the party machine was, the real reason for the (at times disappointingly marginal) victories was that a sufficient majority of the nation could identify with cause after cause behind which the nationalist party had thrown its weight. At the time, the early signs of backsliding of the rule of law that resulted from party abuse of the law could be sidestepped for the greater cause.

There is no denying that by the time the people voted in the EU referendum, many pro-EU votes were also a vote for change – one that would allow for the raising of standards beyond the grasp of the petty partisan politics. The EU Acquis should have done the rest. Still. The PN had served its purpose for two decades. The last few years of the Gonzi government were concentrated on steadying the ship through the economic crisis but the PN had already begun to lose its hold on the pulse of the people.

A party for all reasons

Any reform of the PN must therefore also be seen in this light. As has always been the case a party must have a reason to exist. Aside from the minutiae of everyday policy development one must also be able to identify a party with an overarching cause – of the type that marked the PN’s double-decade of success at leading the country. Call it ideology if you will, though that gets complicated in this day and age what with the modus operandi of the current political arena.

The party’s mission with such a cause would be to convince first of all the people that they must espouse it and this for their own sake. That, in itself, is not the easiest of tasks. Just consider for a moment that the ground-breaking election of 1987 that launched the era of change was won by… wait for it… a margin of 4,785 votes. The cause must transcend the party. There is no other way of going about this for real effectiveness.

As things stand the reasoning that underlies ideas of reform is pinned strongly in the heart of the current system. Here is how I described it in 2016 in a blog post entitled Il Triangolo No:

The structure of our constitutional system has been built using a language that reasons in bi-partisan terms. A bi-party rationale is written directly into the building blocks of our political system – both legally and politically. Since 1964 the constitutional and electoral elements of our political system have been consolidated in such a manner as to only make sense when two parties are contemplated – one as government and one as the opposition.

We are wired to think of this as being a situation of normality. The two political parties are constructed around such a system – we have repeated this over the last ten years in this blog – and this results in the infamous “race to mediocrity” because standards are progressively lowered when all you have to do is simply be more attractive than the alternative. The effect of this system is an erosion of what political parties is all about.

The political parties operating within this system are destined to become intellectually lazy and a vacuum of value. The intricate structure of networks and dependencies required to sustain the system negates any possibility of objective creation of value-driven politics with the latter being replaced by interest-driven mechanisms gravitating around the alternating power structure. Within the parties armies of clone “politicians” are generated repeating the same nonsense that originates at the party source. Meaningless drivel replaces debate and this is endorsed by party faithfuls with a superficial nod towards “issues”.

The whole structure is geared for parties to operate that way. Once in parliament the constitutional division of labour comes into play – posts are filled according to party requirements and even the most independent of authorities is tainted by this power struggle of sorts. Muscat’s team promised Meritocracy and we all saw what that resulted in once the votes were counted. In a way it was inevitable that this would happen because many promises needed to be fulfilled – promises that are a direct result of how the system works.

The “intellectually lazy and value vacuum” parties are what needs to be reformed. This requires a rebooting of the system. What needs to be targeted are the laws and structures that have developed into an intricate network of power-mongering and twisted all sense of representative politics. Reform of this kind goes a much longer way than merely rebooting the party and putting it back in the same fray.

Forza Nazzjonali was a last-minute attempt to mobilise the forces of opposition to corruption in this country. It is telling that the part of the PN that viewed the coalition as anathema would justify their aversion to the idea with the fact that this damaged the “party”. It is the same part of the PN that is unable to see the greater picture regarding the backsliding of the rule of law in the country. In their eyes the difference between them and Muscat is that Muscat has hit on a winning formula and has raised his party to new heights of glory. You can bet your last euro cent that had Muscat been PN they would be applauding him till the cows come home.

As things stand though, the reform of the PN does not seem to be pointed in the direction of greater causes. The reform will in all probability get mired in the usual bull concerning street leaders, committees, local councils, regional structures, partition of party fiefdoms, “listening” mechanisms and such. Nahsbu fin-nies taghna. Nisimghu il-wegghat. Partit miftuh u lest ghal bidla. Yada yada yada.

That kind of reform deserves only a slow death. It would just be a tinkering of the ladders of power that are built within our parties with the hope of getting a chance of replicating them on a national scale once in “the power” (For more on how this works see yesterday’s fresh report from the Commissioner on Standards – or if you’re lazy just watch the Yes Minister episode called Jobs for the Boys). It is the kind of reform that assumes all is ok with the laws of the land and how they are applied. Again. That reform deserves a slow and painful death.

Death becomes them

I have absolutely no doubt in my mind that calling for the death of the party will attract all sorts of opprobrium from the party core. That should not matter. What matters is that the message gets across. The PN must die is really a call to rebuild from scratch. Thinking within the confines of an age-old mentality of parties wired to mirror and milk the state machine can only cause further damage. Instead the PN must rebuild as a party that owns the biggest cause at the moment : the need for a radical constitutional change that inoculates the nation against state capture.

After his failed mission at the last EU #topjobs summit Joseph Muscat flew to the Czech Republic and met PM Babis. The squares of the Czech republic have been filled with protesting citizens unhappy with Babis who is under investigation for fraud. Muscat could give a lesson or two to Babis on how to convert the baying crowds into comfortable electoral margin wins. That’s the Muscat who was not considered for an EU Top job because of his governmental track record.

The new PN should be out there leading the battle against corruption on all fronts. It should be reminding the people that this battle is for their best because the backsliding of the rule of law will ultimately have one big victim: the very people who currently blindly follow Muscat’s every turn. That new PN can only exist if the current format and mindset are ditched. This is the chance to take the lead in a wide coalition of opposition for real change. In 2020 the seeds for a new forward looking movement could be sown. The odds are stacked against that though – the system is a survivor, the system feeds on the core nostalgics and will show a strong will of self-preservation.

Never forget, and beware, that old Mediterranean adage: “if we want everything to stay the same, then everything must change”.

Categories
Constitutional Development

The People vs the Government of Malta


Paul Gavan (Ireland, UEL) for the people of Malta. In the background Stefan Zrinzo Azzopardi, for the government. “disappointed by the amendments tabled by the Maltese colleagues… when you are in a hole stop digging!”

Last night, the Parliamentary Assembly of the Council of Europe voted overwhelmingly to approve a report on Daphne Caruana Galizia’s assassination and the state of the rule of law in Malta. The resolution  listed a series of “serious concerns” over the investigation into the murder of Maltese journalist Daphne Caruana Galizia, and demanded the setting up of an independent public inquiry into her death within three months.

The Assembly also noted that “The rule of law in Malta is seriously undermined by the extreme weakness of its system of checks and balances.”. It called on Malta to urgently implement, in their entirety, reforms recommended by the Council of Europe’s Venice Commission and its anti-corruption body GRECO, noting that the recent State Advocate bill was “inadequate to reform the office of Attorney General”.

Not many international media outlets carried the result of the resolution in its immediate aftermath. Bar the chatter on Maltese media and on social networks the impression would be that the Malta Government’s damage limitation exercise has worked. Has it? Are we faced with another international institution that has more bark than bite? Will there be any consequences following the resolution? What can we expect?

What can the PACE do for me?

To begin with here is what the PACE consists of:

The Parliamentary Assembly of the Council of Europe (PACE) is the parliamentary arm of the Council of Europe, a 47-nation international organisation charged dues to their members, dedicated to upholding human rights, democracy and the rule of law. The Council of Europe is an older and wider circle of nations than the 28-member European Union – it includes, for example, Russia and Turkey among its member states – and oversees the European Court of Human Rights.

Source Wikipedia

It’s larger and older than the European Union structures and it has contributed to the development of human rights, democracy and the rule of law. As one of the French MPs observed in yesterday’s debate, a newly independent Malta was eager to sign up as part of the family of democratic states and became a member of the Council of Europe back in 1965. PACE also elects judges to the European Court of Human Rights from among the three nominees that each state sends. It is not just a talking shop, the resolutions and actions of PACE have direct consequences on democratic development – from election monitoring to rule of law campaigns. Where it differs from the EU parliament is that its decisions can never be binding.

Why bother then? Resolutions of the PACE as well as those of other constituted bodies under the Council of Europe – notably the Venice Commission – carry weight not just within the CoE institutional framework but also beyond. The European Court of Justice has referred to reports by the Venice Commission in its jurisprudence as recently as this week in the Commission v. Poland (ECLI:EU:C:2019:531) case where the ECJ found that the Polish legislation reforming its judiciary to be contrary to EU law.

The investigative work that precedes the report and the reports themselves that are then subject to votes to become resolutions by the PACE have been shown to have a strong probative value in international fora. While these do not have an obligatory nature insofar as the recommendations are concerned, they will still carry much weight in procedures such as the EU rule of law framework.

The Debate in Strasbourg

Yesterday’s debate that preceded the vote on the final resolution on Omtzigt’s report was an eye opener in many ways. We have been used to the nationalistic and protectionist rhetoric that Malta government propaganda uses to distract from the matters at hand. The discourse of “traitors” often crops up in such situations when, as the government would have it, “our linen are hung in public for all to see”. The reality is different of course.

Yesterday’s debate was a look into the deficiencies that have become more and more apparent in the functioning of Maltese democracy. The government of Malta would want this to seem as an attack on the nation. As the narrative goes, Malta is a thriving, successful economic miracle that is now being regarded with jealous eyes by others. The death of a high profile journalist, the narrative continues, is only being used as an expedient by the enemies of the state to undermine its success. Not too strangely this is the same kind of narrative spun by autocratic nations when defending themselves in such fora. Such, as we shall see, was the call of the Azeri spokespersons who went so far as to allege corruption in the CoE.

Objectively speaking though, the concern by the CoE and within the CoE for the democratic and constitutional structures of one of its member states is a concern for democracy, rights and the rule of law. Such values concern directly the citizens of that very state that is under scrutiny. Checks and balances for proper representation, access to rights, absence of corruption are all in there in the interest of the citizen. What the report tries to establish is (a) the existence of the problem and (b) solutions thereto.

Let’s be absolutely clear about this: the “problem” is a problem that will eventually be felt by the Maltese people. The concerns raised at the Council of Europe are raised in the interest of the good of the Maltese people. It is anything but an attack on the people. It is an “intervention” and a call to make sure that the interests of the Maltese people are safeguarded.

With friends like these

So the Government of the Republic had more than one option and approach available to it. It could, as it has done since the first international observations of the Maltese legal framework had begun, spin the counter-attack of denial and counter-propaganda. It could have also stood up, taken note of these concerns and taken immediate action to remedy the problem – in the interest of the very people who have mandated it into power.

That the Government of the Republic chose the first option – a defence of counter-attack and spin – is not surprising given its track record. What needs to be made clear is that by taking this position it placed itself in a diametrically opposite position to that of its people. Yes. The position of defence and denial was a first step in admission of responsibility. By denying the existence of a well-documented problem, by rabidly opposing any notion of backsliding of the rule of law, the Government of the Republic adopted the position of the accused who was responsible for all of this.

This was no longer simply a vote on a report. This became the case of “the People of Malta vs the Government of the Republic”.

That responsibility puts the Government at direct loggerheads with the interests of its people, the very same interests that the CoE through its resolution is intending to safeguard. Any doubts that remained at the start of the debate regarding this assertion would immediately vanish once the debate started.

To begin with the government’s counter-resolution aimed at torpedoeing the process was backed by three states who, let’s just say, are not the first states that come to mind when one thinks of champions of democracy. Azerbaijan, Malta’s eurovision douze points buddy, was accompanied by Viktor Orban’s Hungary and San Marino. San Marino might come as a surprise if you are unaware that the micro-state has been acting as a trojan horse for Putin’s Russia and this in not too covert a manner. With friends like these who needs enemies?

Two weeks before the debate, Manuel Mallia mistakenly messaged the whatsapp group made up of Malta’s CoE representatives urging them to make use of the upcoming Mediterranean Leaders summit in Malta to lobby against the Omtzigt report. The government was desperate to shoot down this message – which goes to show how relevant it really is.

When the debate got going the divide became all the more evident. The bleating by Muscat’s emissaries was echoed only by their Azeri counterparts. A pathetic display of dictatorial rhetoric was echoed across their lines shooting the messenger (Omtzigt) and accusing the Council of Europe of using the death of a journalist for whatever obscure political motives their minds could conjure. The irony of being on the same side as the government of Azerbaijan notoriously illiberal with its press was completely lost on the Malta Government delegation.

The speakers from across the political spectrum were unanimous not only in their support for the report but also in their condemnation of the behaviour of Muscat’s government. From the French to the Icelandic to the British (to the Turkish to the Armenian); they all expressed their dismay about the fact that the wonderful nation of Malta and its beautiful people have been brought to this situation. The powerful phrase uttered by Paul Gavan (UEL) echoed around the walls of the chamber ” when in a hole… stop digging”.

No amount of landslide populist electoral victories would erase this logic. And that is where the irony of it is at this stage. The People who were being defended and advocated for in the hemisphere are still, in their majority, blissfully unaware of the dangers of the erosion of the rule of law. While the omnishambles that is the official opposition fails to direct its resources to this gravest of problems it is left up to civil society and the few advocates for the rule of law to carry the flag to these international fora with the hope that something is done before it is too late.

The recent construction crisis in Malta might have been a first flash into the real consequences of rule of law breakdown. Legislative laxity, poor monitoring, government by lobby and general impunity will eventually have their negative effects and the main sufferers are the people. Unfortunately we might have to wait for more such effects before the people get on board of their own side and stop getting wooed by the empty rhetoric of those who are supposed to be managing the country in their interests.

The case continues…

The case of the People of Malta vs the Government of Malta is not finished yet. The next step is a potential reference by a Maltese court to the Court of Justice of the European Union in a case concerning the appointment of the judiciary in Malta. The momentum might be building up for the people to find its voice again. If only the opposition, in the wider sense of the term, would get its act together and unite with one voice. As they have seen there are allies to be found everywhere… the crooks are beginning to be outnumbered.

Categories
Brexit Constitutional Development

Parliament Strikes Back

Order to chaos

Speaker Bercow stood up and made a statement. He did so from his position within an old and respectable institution and what he said was firmly embedded and rooted in tradition. It was not tradition for the sake of tradition but rather the kind of tradition that forms part of an ongoing process of institutional development. The kind of tradition that gives direction, certainty and clarity.

Founding his position on a strong 415-year old rule fortified by precedent Bercow explained to the gathered members of the House that there could be no new meaningful vote unless there is a ‘new proposition that is neither the same nor substantially the same‘ as the previous ones. Erskine-May, that biblical volume(s) of reference on parliamentary procedure, was never intended to gather cobwebs; rather it was intended to be at the throbbing heart of an institution that has oftentimes been described as “the mother of all parliaments”. Rather than bellowing empty air, Bercow was the metatron – the channel of the divine voice – and in this case the divinity was the rule of the land that holds everything together.

I have often thought that it is a blessing that of all the EU Member States it was the United Kingdom that would go through the test phases of the process of leaving the European Union. As constitutional and representative mechanisms go there could be no better testing ground for the first time enactment of a multi-dimensional constitutional disentanglement to take place. The institutional self-awareness built over centuries of development and precedent should be able to withstand even the worst assault of today’s popular and populistic politicians.

That the ultimate distillation of all that is parliamentary representation would be severely put to test was a scripted inevitability. Once you had a parliament in session that overwhelmingly was against Brexit in principle but that was also tasked to go through the motions of trying to transform “the people’s will” (17 million reminder) into reality then it was clear that there would be a constant struggle to simply understand what the sovereign will ultimately was. I have dealt with one side of this conundrum in the post Unpopular Representation.

Add to this formula the internal party splits, the devolved interests (particularly Scot and Northern Irish) and the macchiavellian manoeuvering that would take place at a national level as well as the understandable negotiating limits with the European Counterparts then you would hope that as much as possible the institutional underpinnings of the process remain such as to guarantee the full purpose and functioning of a parliamentary democracy.

Bercow’s ruling ostensibly defends parliament (mostly backbenchers) from the actions of a “bullying” executive. May’s third attempt at pushing the “meaningful vote” (MV3) can not happen because it would be the third time too many of trying to get her own way by hook or by crook. The symbolic gesture of Bercow’s announcement is much more important than the practical consequences. I say that because there is always a workaround that is possible for May however any workaround that results in forcing the meaningful vote notwithstanding the Speaker’s warning risks taking on the wrong meaning of meaningful.

It is facile to impute motive to Bercow’s ruling. Truth is that the rule existed before Bercow. It has a purpose. In the wider picture we can see it as a safeguard against deception. An executive that attempts to “weaponize” time to force the hand of parliament is suddenly caught with its proverbial pants down. This could in effect be seen as a first step of parliament fighting back after it had lost a motion to wrestle the process from May’s hands earlier last week.

Returning to the issue of delegated and trustee representation we could see this kind of ruling as another pressure valve that sends a clear signal that on this particular issue – and unless some meaningful change is brought through (highly unlikely given the noises coming from Europe) – the matter might be slowly slipping out of the hands of the elected representatives themselves.

If they really want to fulfill their centuries old function of popular representation then they might want to realise that the mother of all parliaments is due a consultation with its people. If only to see whether their original mandate still stands given the new facts and circumstances that have arisen since the last popular vote.

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.