Category: Constitutional Development

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Constitutional Development Panamagate

Lessons in the Preservation of a Failed System

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Muscat is still holding the fort on Panamagate. In an earlier post I had suggested that his strategy would be that of buying time and if that is still the case then we have entered the fatigue stage where, after having weathered the bulk of the storm, Muscat will be counting on the inability of the general public to keep up with the momentum of the scandal. He will, in fact, be hoping that the general sense of weariness and helplessness that our citizens have when confronted with politics will have a saving effect on himself and his government.

The latest polls do not suggest as much and the slide in trust ratings together with the fact that corruption leapt to the top of public concerns mean that the effects of Panamagate are here to stay for a while yet. The crucial bit here is that the snowball effect of Panamagate has meant that your average citizen’s distrust in politics and politicians was spread wider than the protagonists of that particular saga and that Malta finally caught up with the rest of the world when it started to question the operations of a whole class of politicians.

In fact one of the positive outcomes of Panamagate is the “coming out” of public disapproval of our political class and of the system that that very same class has created in order to survive and grow. While the party in opposition attempted to form a national rally inspired by and for the purposes of Panamagate it has become increasingly the case that the focus has shifted onto the wider issue of the rotten state of our political establishment and that includes the party in opposition itself.

Part of the reason for the aforementioned shift lies in the defensive tactics of a government under siege. The strategy of spin by Muscat required a dose of counter-accusations of supposed or alleged corruption in the rank and file of the Nationalist MPs. It was very evidently a deviation tactic aimed at distracting all and sundry from the very obvious fact that Mizzi’s and Schembri’s position were untenable without the need of further proof. What ensued was an open barrage  of exchanges with no holds barred. Truth, morality, public interest, the state of the nation – they all became expendable pawns in the partisan dialogue of insults and accusations.

The No Confidence Motion

In the middle of all this the nationalist party moved a motion of no confidence in the government. We all know of the infamous 13 hour debate and what has been very aptly described as the vote that resulted in 38 likes. In the middle of this debate we had one very interesting talk delivered by former Minister Mallia. Much of what Mallia said or did not say merits analysis.

In the first place it was evident that rather than use his time to defend the government’s achievements or to defend Konrad Mizzi’s position, Mallia was intent to unleash his remaining anger leftover from Malliagate – the infamous shooting incident involving his driver that cost Mallia his cabinet position. His speech targeted those who in his words attack an honest politican who is intent on serving the country and who ends up losing his chance to serve thanks to these “attacks”.

Secondly Mallia was quick to ride his reputation of an experienced lawyer by referring to his faith in the “rule of law”. This not too subtle shifting of goalposts would have been missed by the man in the streets but was a clear attempt to alter the standards that were under scrutiny. Political responsibility is not the same as criminal or legal liability. Mallia was in a way pandering to Muscat’s idea that “proof” of illegal funds was needed in order to have to get rid of Mizzi (and Schembri) – the kind of proof one would expect in a trial in a court of law. Mallia is either naive or ignorant in that respect: it is evident to any constitutional lawyer that the very rule of law he claims to love would have Mizzi and Schembri out on their arses the moment the very set up of a company in Panama is discovered.

Finally, and most importantly, watching Mallia speak brought back memories of politicians from what is by now a very different era of politics. Back in 1992 a huge earthquake struck Italian politics: we all remember it as Tangentopoli (“Kick Back Gate” if you like). What began as a magisterial investigation in illegal funding of parties ended up being an expurgation of a whole political class (Operation Clean Hands).

Mallia’s speech focused very much on attacks on the truth and on the suffering of the “honest politician” who is not in politics money but to serve. In his words, “attacks” by journalists were damaging the opportunities of politicians to serve. This sounded very much like a muffled appeal to both sides of the house to moderate their terms because in the long run it is the very politicians on both sides who risk  “suffering” the ignominy of an extirpation.

Back in 1992 Bettino Craxi, one of the gigantic figures of Italian politics, had stood up in the Italian Parliament shortly after the first scandals erupted and commented thus:

Su quanto sta accadendo la classe politica ha di che riflettere. (…) C’è un problema di moralizzazione della vita pubblica che deve essere affrontato con serietà e con rigore, senza infingimenti, ipocrisie, ingiustizie, processi sommari e grida spagnolesche. E’ tornato alla ribalta, in modo devastante, il problema del finanziamento dei Partiti, meglio del finanziamento del sistema politico nel suo complesso, delle sue degenerazioni, degli abusi che si compiono in suo nome, delle illegalita’ che si verificano da tempo, forse da tempo immemorabile. Bisogna innanzitutto dire la verita’ delle cose e non nascondersi dietro nobili e altisonanti parole di circostanza che molto spesso e in certi casi hanno tutto il sapore della menzogna.

Si è diffusa nel paese, nella vita delle istituzioni e della pubblica amministrazione, una rete di corruttele grandi e piccole che segnalano uno stato di crescente degrado della vita pubblica, uno stato di cose che suscita la piu’ viva indignazione, leggittimando un vero e proprio allarme sociale, ponendo l’urgenza di una rete di contrasto che riesca ad operare con rapidita’ e con efficacia.I casi sono della piu’ diversa natura, spesso confinano con il racket malavitoso, e talvolta si presentano con caratteri particolarmente odiosi di immoralita’ e di asocialita’.

E cosi’ all’ombra di un finanziamento irregolare ai Partiti e, ripeto, al sistema politico, fioriscono e si intrecciano casi di corruzione e di concussione, che come tali vanno definiti trattati provati e giudicati. E tuttavia, d’altra parte, cio’ che bisogna dire, e che tutti sanno del resto, e’ che buona parte del finanziamento politico e’ irregolare od illegale. I Partiti specie quelli che contano su apparati grandi, medi o piccoli, giornali, attivita’ propagandistiche, promozionali e associative, e con essi molte e varie strutture politiche e operative, hanno ricorso e ricorrono all’uso di risorse aggiuntive in forma irregolare od illegale.

Se gran parte di questa materia deve essere considerata materia puramente criminale allora gran parte del sistema sarebbe un sistema criminale. Non credo che ci sia nessuno in quest’aula, responsabile politico di organizzazioni importanti che possa alzarsi pronunciare un giuramento in senso contrario a quanto affermo: presto o tardi i fatti si incaricherebbero di dichiararlo spergiuro. (Bettino Craxi, June 1992).

That was at the outbreak of the scandal. The kickbacks that were investigated involved first and foremost the major political parties that had enjoyed a system of “democratic alternation” but that had developed a network of corrupt practices that later would be found to have overspilled in the business community. Political party kickbacks were parallel to grafts taken by individual politicians and the links spread straight into the arms of criminal activity. In his early defence in 1992, Craxi stressed that (I paraphrase) “the illegal funding of the political system (no matter how many negative judgements and reactions it may have generated) cannot be and cannot be used as an explosive to blow up a whole system, to delegitimize a political class, to create a climate where neither corrections nor an effective cleansing action can arise but only disintegration and adventure. For this situation we need a remedy, actually more than one remedy.”

I cannot help but noticing that Mallia’s impassioned apology for the workings of politicians in spite of what he perceives as “attacks” on their operation has inspirations that are rooted in the interventions of Craxi and politicians of his ilk back in 1992. 10 months later, in April 1993, Bettino Craxi was faced with a number of requests by the magistratura for authorisation to proceed (against him in court) and he had to make one last impassioned defence before the Camera dei Deputati. Almost 23 years ago to the day he stood up to make one of the longest speeches in defence of a failed system.

Si e’ invece fatto strada con la forza di una valanga un processo di criminalizzazione dei partiti e della classe politica. Un processo spesso generalizzato ed indiscriminato che ha investito in particolare la classe politica ed i partiti di governo anche se, per la parte che ha cominciato ad emergere, non ha risparmiato altri come era e come sara’ prima o poi inevitabile. (…) Ma di tutte l’erbe s’e’ fatto alla fine un fascio.

Tutto si è ridotto ad una unica accusa generalizzata. Le campagne propagandistiche hanno ruotato sovente solo attorno a slogans ed a brutali semplificazioni. Di questo si è incaricata infatti parte almeno della stampa e dell’informazione, andando ben al di là dei diritti e dei doveri propri dell’informazione, deformando spesso oltre misura, esaltando le ragioni dell’accusa e mettendo di canto quelle della difesa, travolgendo senza alcun rispetto diritti costituzionalmente garantiti con difese divenute praticamente impossibili, creando sovente un clima infame che ha distrutto persone, famiglie e generato tragedie.

La criminalizzazione della classe politica, giunta ormai al suo apice, si spinge verso le accuse piu’ estreme, formula accuse per i crimini piu’ gravi, piu’ infamanti e piu’ socialmente pericolosi. Un processo che quasi non sembra riguardare piu’ le singole persone, ma insieme ad esse tutto un tratto di storia, marchiato nel suo insieme. Un vero e proprio processo storico e politico ai Partiti che per lungo tempo hanno governato il Paese. (29th April 1993)

The echoes in Mallia’s speech 23 years later are incredible. It does not stop with Mallia mind you, even though Mallia’s speech was the most transparent in this respect. Politicians under attack for their unethical performances will ask you to be positive and focus on “all the good we have done” that cannot and should not be overshadowed by what they claim to be “slips of human error”. This spin is current today and it is no surprise that it was just as current in Craxi’s day.

Tutti i cicli, come è naturale passano, entrano in contraddizione, si esauriscono, degenerano. Sono cosi’ subentrati gli anni delle difficolta’ e della crisi, che stiamo ancora attraversando. Ma gli effetti e le conseguente di un periodo critico sarebbero stati ben diversi e ben piu’ onerosi se non avessimo avuto alle spalle il solido sviluppo realizzato nel corso degli anni ottanta ed un retroterra conquistato con un balzo in avanti poderoso.

It did not come without an admission though. Craxi’s line of reasoning was that parties have always been funded in a questionable manner and that this should not preclude an acknowledgement that they have functioned for the good of the state.

Cosi’ come nella vita della societa’ italiana non e’ nata negli anni ottanta la corruzione nella pubblica amministrazione e nella vita pubblica.

La vicenda dei finanziamenti alla politica, dei loro aspetti illegali, dei finanziamenti provenienti attraverso le vie piu’ disparate dell’estero, della ricerca di risorse aggiuntive rispetto poi ad una legge sul finanziamento pubblico ipocrita e ipocritamente accettata e generalmente non rispettata, accompagna la storia della societa’ politica italiana, dei suoi aspri conflitti, delle sue contraddizioni e delle sue ombre, dal dopoguerra sino ad oggi.

Non c’e’ dubbio che un troppo prolungato esercizio del potere da parte delle piu’ o meno medesime coalizioni di Partiti ha finito con il creare per loro un terreno piu’ facilmente praticabile per abusi e distorsioni che si sono verificate. Ma onestà e verità vorrebbero che in luogo di un processo falsato, forzato, ed esasperato, condotto prevalentemente in una direzione, si desse il via ad una ricostruzione per quanto possibile obiettiva ed appropriata di tutto l’insieme di cio’ che è accaduto.

Si tratta di una realta’ che non si puo’ dividere in due come una mela, tra buoni e cattivi, gli uni appena sfiorati dal sospetto, gli altri responsabili di ogni sorta di errori e nefandezze.

The appeal to morality and honesty in such times becomes almost an automatic reflex. I have already mentioned how jarring the appeal to “honest Maltese” was prior to the first rally in Valletta. This tendency to transform a political discussion into a dichotomy between “good and evil” is dangerous – dangerous both for the interlocutors who have suddenly arrogated unto themselves the questionable position of absolute purity as well as for the confused electors who are unable to detach themselves from the call of partisan loyalty when assessing such circumstances.

In this I will refer once again to Craxi’s swan song. In the heat of the affair, prior to his exposure to the courts and his subsequent self-imposed exile in Hammamet (Tunisia) he made one final appeal to a good sensed reform devoid of revolutionary lynch mobs. It sounds eerily relevant to today’s world:

Non credo del resto che la moralizzazione della vita pubblica possa esaurirsi con la denuncia ed il superamento dei sistemi di finanziamento illegale dei Partiti e delle attività politiche e con la condanna di tutte le forme degenerative che ne sono derivate. Non credo che solo in questo consista la questione della corruzione della vita pubblica. Non credo che il procedere in modo violento con l’inevitabile inasprimento dei traumi e dei conflitti che ne scaturira’ potra’ aprire un periodo ordinato e rigoglioso nella vita democratica. Non credo che per queste vie li Paese si incamminerà verso un periodo di rinascita economica,di riequilibrio sociale,di un rinnovamento politico ed istituzionale all’insegna di un grande decentramento dei poteri, nel consolidamento dell’unita’ della Nazione,e insieme di riconquista di un prestigio internazionale tanto piu’ necessario quanto piu’ aspre si vanno facendo la competizione e la conquista di aree di influenza nel mondo. C’e’ un problema democratico di rinnovamento e di ricambio della classe politica dirigente, c’è un problema di alternanza di forze nelle responsabilità di guida e di governo.

E’ un problema che deve essere risolto democraticamente, nel modo piu’ trasparente e diretto, senza provocare il soffocamento del pluralismo politico e senza fare ricorso alla barbarie della giustizia politica. Una politica che fosse intrisa di demagogia e di ipocrisia, non sarebbe destinata a fare lunga strada. Cosi’ come non e’ destinato a farla chi ancora oggi continua a non usare il linguaggio della verità, per non parlare di chi si presenta di fronte al paese con l’aria smemorata, con i tratti di chi non sapeva anche cio’ che avrebbe dovuto inevitabilmente sapere, di chi ha vissuto sino a ieri in preda a superficiali distrazioni, di chi denuncia nomenklature, ignorando la propria di cui continua a portare tutti i caratteri, e dimenticando il proprio ruolo, la propria responsabilità, di chi addirittura giudica dall’alto delle sue frequentazioni malavitose.

These quotes may be lengthy but they are necessary in order to have a look at the lessons that history provides us. It is very probable that by the time Craxi gave this speech he knew he would have little time left within the political sphere. His April 1993 speech would actually win him time as he would win that vote and stay out of the courts until December of that year when his prosecution was finally authorised. By May 1994 he was fleeing to Tunis to escape jail and where he would live till his death in 2000 under the protection  of Tunisia’s leader Ben Ali (himself ousted in 2011 and charged with money laundering and drug trafficking sentenced to 35 years).

Lessons

Craxi’s story serves to remind us of how a political class will struggle and fight tooth and nail to survive. The defences it will put forward will rarely be different through the ages. In a system such as ours that has also been molded to allow for alternation between different networks of power we run the risk of seeing much of the same.

Unfortunately Malta does not have a strong judiciary or watchdogs. Konrad Mizzi and Keith Schembri have still not gotten so much as a slap on the wrist from anyone. Our tax authorities are proceeding at a slow pace but that is not even the point because tax authorities are not about political responsibility. Our Prime Minister hides behind a tax audit spirited out of one of his fantastical speeches full of management words but no political consequences. Our political parties – both of them – still inhabit a world where massive financing is taken as a basic requirement for their operation. No one questions whether paring down their size would be a good thing in itself.

We will continue to hear stories and accusations and counter-accusations of graft, politicla favours, political networks. In the meantime Malta lacks the momentum that existed in Italy under the system of aggressive togas or in Iceland with an aggregation of popular sentiment that could result in a proper change.

I will conclude by referring you once again to Mallia’s speech and his defence of the privacy of the honest politician. One of the “victims” of tangentopoli was a socialist member of the camera deputati. His name was Sergio Moroni and when faced with more avvisi di garanzia he decided to take his life, not before leaving an impassioned appeal addressed to the President of the Chamber (ex-President Giorgio Napolitano). At the risk of infuriating the readers with the length of this post I am reproducing his letter below.

Se vogliamo che tutto rimanga lo stesso, bisogna che tutto cambi.

« Egregio Signor Presidente,
ho deciso di indirizzare a Lei alcune brevi considerazioni prima di lasciare il mio seggio in Parlamento compiendo l’atto conclusivo di porre fine alla mia vita. È indubbio che stiamo vivendo mesi che segneranno un cambiamento radicale sul modo di essere nel nostro paese, della sua democrazia, delle istituzioni che ne sono l’espressione.

Al centro sta la crisi dei partiti (di tutti i partiti) che devono modificare sostanza e natura del loro ruolo. Eppure non è giusto che ciò avvenga attraverso un processo sommario e violento, per cui la ruota della fortuna assegna a singoli il compito delle “decimazioni” in uso presso alcuni eserciti, e per alcuni versi mi pare di ritrovarvi dei collegamenti. Né mi è estranea la convinzione che forze oscure coltivano disegni che nulla hanno a che fare con il rinnovamento e la “pulizia”. Un grande velo di ipocrisia (condivisa da tutti) ha coperto per lunghi anni i modi di vita dei partiti e i loro sistemi di finanziamento. C’è una cultura tutta italiana nel definire regole e leggi che si sa non potranno essere rispettate, muovendo dalla tacita intesa che insieme si definiranno solidarietà nel costruire le procedure e i comportamenti che violano queste regole.

Mi rendo conto che spesso non è facile la distinzione tra quanti hanno accettato di adeguarsi a procedure legalmente scorrette in una logica di partito e quanti invece ne hanno fatto strumento di interessi personali. Rimane comunque la necessità di distinguere, ancora prima sul piano morale che su quello legale. Né mi pare giusto che una vicenda tanto importante e delicata si consumi quotidianamente sulla base di cronache giornalistiche e televisive, a cui è consentito di distruggere immagine e dignità personale di uomini solo riportando dichiarazioni e affermazioni di altri. Mi rendo conto che esiste un diritto d’informazione, ma esistono anche i diritti delle persone e delle loro famiglie. A ciò si aggiunge la propensione allo sciacallaggio di soggetti politici che, ricercando un utile meschino, dimenticano di essere stati per molti versi protagonisti di un sistema rispetto al quale oggi si ergono a censori.

Non credo che questo nostro Paese costruirà il futuro che si merita coltivando un clima da “pogrom” nei confronti della classe politica, i cui limiti sono noti, ma che pure ha fatto dell’Italia uno dei Paesi più liberi dove i cittadini hanno potuto non solo esprimere le proprie idee, ma operare per realizzare positivamente le proprie capacità e competenze. Io ho iniziato giovanissimo, a solo 17 anni, la mia militanza politica nel Psi. Ricordo ancora con passione tante battaglie politiche e ideali, ma ho commesso un errore accettando il “sistema”, ritenendo che ricevere contributi e sostegni per il partito si giustificasse in un contesto dove questo era prassi comune, ne mi è mai accaduto di chiedere e tanto meno pretendere.

Mai e poi mai ho pattuito tangenti, né ho operato direttamente o indirettamente perché procedure amministrative seguissero percorsi impropri e scorretti, che risultassero in contraddizione con l’interesse collettivo.

Eppure oggi vengo coinvolto nel cosiddetto scandalo “tangenti”, accomunato nella definizione di “ladro” oggi così diffusa. Non lo accetto, nella serena coscienza di non aver mai personalmente approfittato di una lira. Ma quando la parola è flebile, non resta che il gesto.

Mi auguro solo che questo possa contribuire a una riflessione più seria e più giusta, a scelte e decisioni di una democrazia matura che deve tutelarsi. Mi auguro soprattutto che possa servire a evitare che altri nelle mie stesse condizioni abbiano a patire le sofferenze morali che ho vissuto in queste settimane, a evitare processi sommari (in piazza o in televisione) che trasformano un’informazione di garanzia in una preventiva sentenza di condanna. Con stima.
Sergio Moroni »

Categories
Constitutional Development

A Study in Outcomes

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The public verdict on the thirteen hour debate on the confidence motion in government was already out before the debate actually started. To many this had been a complete waste of time. To many more this was once again a descent into partisan pique, mudslinging and tomfoolery – a sentiment that would turn out to be fodder to the Labour side that claimed to be over and above the divisiveness that was still being sown by what in its words was a “negative” Opposition. That much time was dedicated to explain why and how a no-confidence motion had been moved is understandable. As is the marathon efforts of the Labour side of the house to turn this into a game of deviation.

In many ways Labour succeeded into getting everyone to believe that this was a motion of no-confidence in all its work and not in a very particular set of circumstances that threaten to damage any such good that has been done. We’ll have more time to delve into the lessons to be learnt from the marathon debate – lessons, I hasten to add, for all sides. What I would like to start with is the end: more specifically the tone of triumphalism set by Labour who claim to have “won the vote of confidence” and seem to believe to have weathered the storm. Politically it is true that the government survived the confidence motion and managed to turn it into a confirmation of what the countermotion deemed to be sterling work.

There’s another interesting angle to this chess game though. Admittedly it is an angle that can only be seen once you wear the dumbed down spectacles of partisan illusion but it is an angle that is worth exploring just the same.

At 9 am on Monday morning we knew already the numbers of the vote. The Nationalist side had 29 votes that would go to the no confidence side. Add to them the two independent MPs – that’s 31. Labour had it’s record majority of 38 MPs ready to shoot down any proposal that would shed a bad light on government. As partisan things go the numbers ran 38 against 31. So basically in order for the PN to claim even a slight form of victory one would expect that the number on the side of the No confidence motion would be anything above 31. Even if in the end it would lose the vote, any number of shifts from the preordained position would surely have been a victory of sorts to work upon.

Now the same goes for Labour though. It is useless to gloat on getting ones own votes that are after all only a reflection of the public state of mind in 2013. For Labour to “win” anything out of the vote you’d expect them to win over at least one vote from the other side. Anything less would not be a vote of confidence but merely a retrenchment of a party hanging on to power.

As it turns out there were no surprises. Indeed, no victors were to be registered in the House. The numbers at 9am remained the same numbers at 10pm. This may all sound like crazy reasoning but it is not all that fanciful as your average partisan voter may hope. There is truth also in these numbers. There is truth in the inflexibility of a popularly mandated majority that prefers to stick to power rather than take action on the rot that has begun to set. There is also truth in another not insignificant detail. The numbers do not really reflect the numbers at the start of this parliament in 2013. Seen from that perspective there is already one Labour MP who has shifted her allegiance to the side that has no confidence in this government.

In many ways she reflects the voice of the shifting mood outside of the house where seats are no longer so certain. This has to be the first lesson from the 13 hour marathon on Monday. Nobody won the vote that day – the only victor was a general retrenching. There was one ray of hope though, one MP sitting on the independent benches was doing her homework and had an ear and her heart outside the house. She was listening to the real numbers that underlie the house of representatives. And they were not smiling.

Categories
Constitutional Development

Il Triangolo No

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I. Stability is a partisan word

Third parties, third ways. An online poll conducted by the paper Illum showed, among other things, that 14% of respondents would vote for a new party since they have no more faith in either the PN or the PL. Talk about a possible third way being a panacea for our political representation problems has belatedly gathered momentum on the island. Muscat’s government is on rapid implosion mode while the general feeling is that the PN alternative would generate more of the same style of politics – one that is deeply enmeshed in corruption and deceit to the detriment of the citizen. Marlene Farrugia’s rumblings as a dissenting politician within parliament are much stronger and coherent than those we have heard until now during the last months of the Gonzi executive. Add to that the fact that scandal after scandal the tempo of public discontent does not seem to subside and a few “public personae” are prepared to throw their weight into the ring and you have the recipe of what is being touted as the panacea for all this evil feeling: a third party.

Regular readers if this blog may well recall that the “Third Way” solution has long been advocated over the whole stretch of our blogging history. Often the election of a third party’s representatives in parliament has been described here as “driving a wedge in the bipartisan hegemony”. I still believe that a third party (and fourth and fifth) can have positive effects on our political system. The problem however lies elsewhere since the third party is not a solution in itself but it is actually a possible result of the solution that is necessary in order to definitely improve the state of our politics and consequently the health of our nation.

What do I mean? Let’s take a look at the PLPN reaction to the very public rumblings of a possible third party. Their rare chorus of unanimous disapproval was to be expected. More parties in parliament would cause “instability” they claimed. Worse still they could not envisage having to share the burden of government with some coalition party – anathema.

The PN might be investing in the concept of good governance but the philosophy behind the driving forces of this rekindling of values stops short of contemplating an utter reform of our representative system that might not be two-party-centric. Of course we can have good governance they will tell you, but applied to our system of alternation – and not beyond. In other words the current set of rules should be good enough for Busuttil’s new party philosophy – we only have to ensure that the tenets of good governance are properly applied therein and all will be fine. I beg to differ.

II. Self-preservation is a natural instinct

Let us use a coding metaphor. 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. With all the goodwill in the world Busuttil’s team promising Good Governance will be placed in the same position with the same rules as Muscat’s and Gonzi’s before them.

The point is that the system needs to be rebooted. Even a third party elected under these parameters would do little to shake the system at its foundations. 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. A third party might be the result of that change of system but what is needed right now is that one (or both) of the two parties enjoying the uncanny and undemocratic advantages of their home-made rules is forced to accepting a program of constitutional change.

III – Restoring the supremacy of parliament

Malta’s constitution owes much to the concept of parliamentary sovereignty. Constitutionally political parties did not count for much. When forming a government the Head of State was invited to choose from among the members of parliament that member who enjoyed the support of the majority of members elected. No mention of parties. It is only through a series of shenanigans and legal changes to electoral laws that the parties became the be-all and end-all of the electoral process. Laws were changed to ensure majorities, seats in parliament and quotas – all in relation to the bi-partisan system. It led us to the infamous wasted vote.

The problem was not so much the theoretical guarantee of stability afforded by a bi-partisan system. No, the problem lay in how the guarantees afforded by alternation gradually became a threat to the “political” nature of the parties themselves. Instead they were replaced by careerist powermongers eager to climb up the ladder of our home-grown system of power-broking: from candidate to backbench MP to Secretary to Minister. Fiefdoms developed and by taking advantage of a system that guaranteed their presence on authorities, boards and watchdogs the constitution would play second-fiddle to the needs of the party in power while the opposition barked and whinged waiting their turn for a piece of the action.

How does this change? it changes by changing the whole system starting from its building blocks. Parliament has to be strengthened and revalued as the supreme guardian of constitutional representation. The new system should ensure that politicians elected to parliament fulfil their role of representatives of the people by acting as proper legislators and competent watchdogs on the operation of the executive that must remain subservient to their will. In order to obtain this we must wean parliamentarians away from the ladder of power as currently perceived while strengthening their role and function.

I have already put forward the four points that should be the groundwork for such a reform:

  1. The removal of districts from national elections.
  2. The introduction of party lists elected on the basis of proportional representation into parliament (with a minimum threshold of between 5% and 7%).
  3. The introduction of technical ministries with ministers chosen from outside parliament but accountable to parliament.
  4. (A corollary of 3) MP’s who become ministers should resign their place in parliament.

As I said in an earlier post this would remove the idea of careerist politicians. By clearly differentiating between the roles of the executive and the legislative/representative aspects we would ensure that parties are rewired to become effective in both. A technical executive with a proper plan and project will be one side of the coin while a strong representative body acting on behalf of the people monitoring and endorsing the work of the executive would be the other. Such parliaments could afford to have a hundred Marlene Farrugia’s who do not bow to a party whip for the party’s sake but use their vote in the best interests of those who elected them to parliament.

Conclusion

Electing a third party for the sake of electing a third party and simply out of spite to the two main parties is not a solution as things stand. This blog would advocate for stronger pressure on the party that is most willing to take up this programme of groundbreaking constitutional reform with the express understanding that should it get elected this would be its top priority. That mandate would end once the reform is achieved and new elections based on the new parameters would be held. What Malta needs is a Reform Movement that picks on the current momentum that is not endemic to Malta. What it certainly does not need is more parties playing from the same score as we have till now.

Categories
Constitutional Development

More fool the law

more fool the law _ akkuza

An evil soul producing holy witness is like a villain with a smiling cheek, quoth the bard. In matters legal we are often confronted with devils citing scriptures for their purpose and recently there seems to have been quite an upping of the scripture-quoting ante, if you get my drift. The Ian Borg planning permit saga drags on without so much as a whiff of a preventive suspension of duties. PM Muscat was quite clear, in his usual style used whenever clarity and convenience collide, that it was up to Borg to do what he should do. Borg, having adamantly proclaimed his innocence and shown that he does not give two hoots about whatever investigations may result declared firstly that he would proceed with his development. It was only after a sobering comment by Muscat that Borg retracted – on facebook of course.

Muscat’s comments were the most worrying in fact. He was definitely not satisfied with Ombudsman Report on Case no EP 0032 and did not hesitate to openly allege that it was beset with inaccuracies. In fact, not only does the modern day leader of steel not agree with the Ombudsman’s conclusions but also promised to set straight certain “mistakes” that are apparently contained therein. It really does beg the question of why bother listening to the Ombudsman in the first place if you are not going to give any weight to anything he has to say. Well, probably Muscat has been listening to a few scripture-quoting devils who have opted to dabble in the arcane arts of legal interpretation within their self-declared hobby/profession of all that is to do with planning.

What really sticks out whenever you read any of these apologia pro Ian Borg in the press is a quasi-autistic literal-mindedness that belies any knowledge of constitutional responsibility. You see a literal approach to the law can provide some very interesting and confusing results. The Ian Borg Saga is not about any old pesky MEPA application but about the “incorrect application of policies and procedures in processing and determining” a particular  application in Rabat.

Legally (and by this I mean also to include the literal application of the law)  there is the issue of sticking to the procedural minutiae of an application and whether what might seem to be ridiculous situations – such as a non-owner making an application- are actually allowed by law. There is also a second legal question and that is whether the permit application as filled led to MEPA wrongly acquiescing to the request.

Outside the box of literal-minded application there is an important constitutional element. A member of parliament – a parliamentary secretary to boot – is involved in this application. I say involved but ultimately we can say committed in the same way that in an English breakfast the chicken is involved but the pig is committed. The property that is the subject of this controversy is owned by Ian Borg. He is not denying it. Nobody is. The problem lies that if it should result that Borg, a government secretary, abused of MEPA procedure in order to obtain a go-ahead for this development in a property owned by him he has constitutional obligations that go beyond the mere examination of whose name appears on the application and whether that is legit.

Reading through the Ombudsman’s Report (that could admittedly have been a bit more clear) we find two important issues that tie to the constitutional responsibility of Ian Borg.

  1. The issue is not whether or not it is permissible for someone to apply on behalf of a third party. The issue is whether, when doing so, it was clear that whoever the applicant was, if he was not the sole owner (or not an owner) then he indicated that he notified the owner of his intention to apply. This is provided for in Section 15 of the application form (under article 68(3) of the Planning Act). The point that the Ombudsman makes in page 6 of his report is that in this particular application the applicants who were not the owners did not indicate as much – they actually “incorrectly stated that they were owners”. This is when the Ombudsman opts for the words “it is strange that Dr Borg chose a somewhat devious method to file the application”. The application contains an untruth. While it is true that you can still apply if you are not the owner, you are meant to do so while declaring that you are not the owner and indicating that the owner has granted his consent. This is what results from the Ombudsman’s description of the case. Given Ian Borg’s parliamentary position the omission assumes constitutional importance.
  2. The second important point made by the Ombudsman is, to put it simply, that the description given in a previous application that ended up being refused by MEPA was altered in this new application. The result is that notwithstanding that “there was no change in policy in the intervening period between the refusal of PA 1637/12 and the submission of PA 2708/14”, MEPA seems to have requalified the new application in order to get the green light for the application made by somebody for the development on Ian Borg’s property. One defence being made here is that a literal application of the planning policy  would lead to the green light being given because the former application had a built up area of less than 50 metres squared while the new application being for a 100 metres squared building would qualify. Now bear with me for a moment but what we are effectively stating is that when a plan for development was for less than 50 metres squared MEPA would object to such development tooth and nail BUT by exploiting a loophole in the law if we present a larger development plan that transforms magically “fresh land” into a backyard in the building suddenly everything is fine and dandy.

Quite frankly the combination of the two issues listed above put Ian Borg in dangerous waters. Even with all the goodwill he may claim to have had there is still definitely more to this than meets the eye and it does the PL no good to hang on behind its young soldier. We’ll have to wait for the Commission against Corruption whose remit is closer to the constitutional factors that I mentioned than the Ombudsman’s.

 

Categories
Constitutional Development Politics

Timing Anglu’s comedy secret

timing_akkuza

 

The secret of comedy, they say, is timing. There is nothing funny about the making public of a launch of a magisterial inquiry into the amount of fuel consumed by the Leader of Opposition’s car. It is not funny at all. In actual fact it is rather worrying because it has all the makings of a perfectly-timed smear attempt. It would not be the first time in the history of this country that the machinery of one of the arms of the state is put into motion in an incredibly advantageous manner that serves the party in government. Those who are not prone to lapses of amnesia still remember the sudden summons of Alternattiva Demokratika’s Harry Vassallo when some long forgotten tax case suddenly became very very pertinent in the eyes of some police officers in Sliema.

The magisterial inquiry falls within the same lines of harassment by officialdom. It is important to keep a sense of perspective here. The investigation is about a discrepancy in fuel allowances – the kind of discrepancy that would not warrant half the attention it is getting since, assuming that it is an allowance, what one assumes happens is that if you exceed the allowance then you are not refunded the difference. In any case the irony of the matter is that this is the fuel allowance used for an official car in its official capacity. Apparently too much money is being spent on fuel. One would hope that the inquiry concludes what everyone who has not been blinded by Joseph has been telling the government over the past year or so – that fuel prices are bloody expensive when compared to international market prices.

But back to Simon’s driver. Busuttil got to know that the investigation was going on and this strangely coincided with the document full of proposals on proper governance (that this blog is still to review). Muscat was quick to confuse matters by claiming that by Busuttil’s yardstick Busuttil should resign. It turns out that the Good Governance proposals have instilled the fear of God in Muscat – this is the first time that he would rather see the back of his opponent rather than continue with the playground jibes of “ma tifhmx fl-ekonomija, ma tafx taqra” &c &c.

Speaking of math and economics it is incredible that in this democracy we have importuned a magistrate to draft a pennies inquiry as to the fuel consumption of a car when our Prime Minister still to this day rents his own private car to his office at the rate of €7,000 a year. Incredible isn’t it? The apologistas of this world will tell you that this is perfectly legal – sure, but what they do not tell you is that  this way Muscat gets to double his perk. The money the government is paying for what is supposed to be a bargain deal goes to Muscat’s pockets at a rate far above the net worth of his car. It’s as though a lawyer would charge his clients extra for having used his laptop and printer to draft his legal documents.

The whole farce of the magisterial inquiry only goes to show the urgency with which the PN proposals on Good Governance must be treated. We have long embarked on the slippery slope that ignored the important tenets that underly civic society in a liberal democracy and much time has been lost using the measure of partisan fairness instead of the rightful rule of law. Instances such as Farrugia’s comic foray into the land of inquiries are a clear indication of the tragic situation of our current political state. That so many voters are still prepared to swallow this bull if only to spite the imaginary nationalist monster that was designed in their head by Muscat’s propaganda machine is even more worrying for that means that many are still prepared to defend the indefensible.

Is-sewwa jirbah zgur they used to tell us. These are definitely tough times for the truth and for justice. Only time will tell.

Categories
Constitutional Development Politics

Article 42, ISIS and neutrality

article42_akkuza

There has been quite a flutter in Malta since Francois Hollande decided to invoke article 42(7)  of the Lisbon Treaty. Even without the eccentric shenanigans of former PM Karmenu Mifsud Bonnici, questions were being raised as to how and to what extent Malta would be committed thanks to this invocation. I thought of providing a little Q&A, just like in parliament, but without the nigi hemm u nifqghek bits.

1. First of all, what does Article 42(7) state?

Article 42 (7) TEU states:

If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

2. So. This means war right?

No it does not. At least not in the sense that the army blessed and formed in the image of Manuel Mallia will be sent to the front to stand shoulder to shoulder with peshmergas. Nor does it mean that we will have AFM troops patrolling the Champs Elysees any time soon. The emphasis in article 42(7) is on aid and assistance and, more specifically, on the fact that the “security and defence policy” of certain Member States should not be prejudiced. This means two things:

a) Firstly, it means that any state invoking article 42(7) can negotiate individually with any other Member State (and crucially without the need to use any of the EU institutions) any temporary form of aid and assistance.  Each Member State is responsible for determining its contribution on the basis of what they deem to be necessary, which does not necessarily mean the deployment of military assets.

b) Secondly, and more importantly in the eyes of many in Malta, the fact that the security and defence policy of certain Member States is clearly invoked is a direct reference to the ‘neutral’ status of states such as Ireland, Austria and Finland – to give an example of some others. What that means is that notwithstanding any interpretation of military intervention that might be given by states dealing under this article, this obligation stops when the security and defence policy of certain States does not allow it. The second paragraph referring to NATO commitments is a further reinforcement of this distinction.

3. Oh so we are not at war then.

That’s a nice one. Modern politicians of the Hollande mould have a tendency to slip quickly into the language of war once a terrorist attack takes place. This “tradition” is new to this century ever since Commander in Chief Bush declared war on Al-Qaeda. Unlike the 70s and 80s when a terrorist bomb attack or shooting never really translated to a casus belli the political psyche of the post 9/11 words seems to require such heavy handed references and we are living in an age where France will now even try to provoke the UN to declare a war on a state whose existence nobody beyond the self-declared caliphate acknowledges.

Still. In the microcosm of Muscat’s land,  we will first engage in a debate of “neutrality” clauses in our constitution. The significance of such clauses dwindles into nothing when one considers that they were intended to deal with a specific battle between superpowers (a battle that no longer exists) and that in any case they would be invoked in case of a war between states – and not neutrality in the face of the war on terrorism. Another thing, Muscat’s government spent most of its legislature whingeing about the fact that immigration problems are a common problem that should be faced and borne equally by all EU states.

Calling oneself out of the fight on terrorism by relying on an outdated and practically inapplicable neutrality clause is hypocritical to say the least. By saying this I am not advocating participation by Malta on military activity but rather that Malta’s attitude towards security and its contribution to ensuring that the borders of the European Unoion are impervious to terrorists leaves much to be desired. From the Algeria VISA scandal, laughed off by our Chief Salesman to the thousands of Libyan Residencies to the continued insistence of this government to transform Malta into one big trojan horse for entry into the EU… these are ample examples as to how Malta’s contribution to the war on terror could be vastly improved.

4. Where does that leave us?

Well it leaves us with an EU that is gearing up to battle the amorphic monster that is “terrorism” with a series of knee-jerk reactions. It leaves us with a government in Malta that ironically needs to wake up and smell the coffee for the reasons outlined above.

Most of the time, it seems, it leaves us reverting to the centuries old adage: si vis pacem, para bellum.