Category: Constitutional Development

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Citizenship Constitutional Development Mediawatch

BBC World Update on IIP

BBC’s World Update will be discussing Malta’s planned (?) IIP scheme. A post on Facebook announcing the programme has already attracted quite a long string on comments (see post here – Facebook account required). Aside from the ridiculous Labour party accusations that the whole international press attention is some kind of Opposition un-nationalistic concerted attack, this kind of debate just goes to show how global the topic of “selling citizenship” is. Unfortunately this debate will take place in a context where the final result of the IIP negotiations between government and opposition is not known. Notwithstanding the PN assurances that they will insist that “citizenship is not for sale” we have already seen some clues in the press that point to a system where the initial idea of an outright sale will be propped up with some investment criteria to make the idea “more palatable”.

Have Malta’s citizens been sufficiently consulted on this crucial issue? Should the fact that the two behemoths are “consulting” suffice – given how the issue was completely absent from their respective political manifestos? What mandate do Joseph Muscat and Simon Busuttil have from the citizens of Malta? These too are questions that need to be asked. I’m not comforted simply because Muscat or Busuttil tells me that it is OK.

worldupdate

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Citizenship Constitutional Development Politics

The Hunter outside the Palace

When we decided to change the logo of SDM (the Christian Democrat Student organisation) in the mid-1990s we had decided to include a motto within a design that was meant to portray citizen participation and inclusion. The slogan, taken from Caldera’s tome describing the Christian Democrat principles translated as such “the ideal democratic palace is made up of the whole people”. We were very much into the notion of participatory democracy at the time and it was an interesting formative period of my  life.

One crucial question I have been asking myself recently, particularly after the discussions at the Vilnius closing conference of the European Year of Citizens, is “how far do citizens really want to participate”? Is not an ideal democracy one where citizens are duly represented and where such representatives go about with the business of managing the demos as entrusted unto them? Should a citizen be “active” on a daily basis or should his interventions be limited to the two instances of (1) electing those to be entrusted with the res publica and (2) intervening in moments of crises (taking to the streets)/extraordinary intervention by referendum.

The referendum – a method of public consultation is by now a familiar concept in Maltese politics. European Union membership and divorce have served to speed up the learning curve in this field and we know have a petition for a new referendum this time in the hope of abolishing Spring Hunting for good. It would seem that the representatives of our hunting community are suddenly alarmed that this petition for a referendum might be successful and they have kicked off a counter move – this time the move is a petition by the hunters to amend the very act that gives rise to Referenda. In the hunters’ opinion, such an act should never be used to stifle minorities.

It would seem therefore that the learning curve has hit a huge obstacle. The hunters’ move betrays a lack of understanding of the basic tenets of democratic action and participation. An act such as the referendum act is written in such a way so as to ensure that it does not become a tool for minorities to be ‘stifled’. Given the size of our population, it is already a gargantuan task to obtain a number of signatures that is sufficient to get a referendum going. Then, once the referendum does take place, one should also remember that it requires a majority vote – very much like a national election where similar issues are (supposedly) put on the plate in the form of electoral manifestos. That is why this blog (and a few others) have often insisted for more clarity from political parties during election time as to their commitments for their period in government.

hunter

That is also why the vague propositions found in manifestos are often more of an affront to representative democracy than the very clear aims of a referendum proposition. One should also not forget that a law that is a direct result of a referendum could also be challenged in the courts of law – especially if a citizen could claim that his fundamental rights are being infringed. I seriously doubt that a hunter’s right to shoot at will in Spring  time falls within the ambit of the fundamental rights of humankind and I only mention this check in order to paint a clear picture that goes beyond the PR-oriented assessment of rule of law and politics that is very much encouraged by our political classes today.

As it stands, the hunters are firmly entrenched outside the palace. They are not alone. Our political class have diluted all forms of accountability that would normally allow a democratic system based on rule of law, separation of powers, and checks and balances to work. When you have a government that first enacts a law, then rethinks it, then admits it was wrong, then admits it failed to consult stakeholders, then also remembers that there was no mention of this law in its political manifesto – and all the while such a government acts as though this was the most natural way of things and actually tries to get brownie points from its whole u-turn by claiming that it is “listening”… well then, something is rotten in Malta’s democratic palace.

“We are accounted poor citizens, the patricians good.
What authority surfeits on would relieve us: if they
would yield us but the superfluity, while it were
wholesome, we might guess they relieved us humanely;
but they think we are too dear: the leanness that
afflicts us, the object of our misery, is as an
inventory to particularise their abundance; our
sufferance is a gain to them Let us revenge this with
our pikes, ere we become rakes: for the gods know I
speak this in hunger for bread, not in thirst for revenge.”

(from Coriolanus, William Shakespeare).

 

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Constitutional Development Mediawatch

Crash, Boom, Bang.

The appointment of the legal consultant of the Malta Pyrotechnics Association to the chair of a working group tasked to devise a new policy on fireworks factories is the last in a long string of “inappropriate” appointments being made under the current Labour government. The philosophy of the Tagħna Lkoll government seems to favour appeasement over and above regulation. If we were to impute goodwill to most of the moves made by this government within the ambit of appointments to official and semi-official posts the most glaring danger is not, as many would think, the “iced bun” distribution itself.

Granted, the very concept of the “iced bun” is an ugly wart that already blemishes substantially any remaining credibility that this government might have had in the field of meritocracy but there could be a scientific explanation to what may be termed as a wide retweaking of the power system that had prevailed over the last twenty years. What J’accuse calls a result of “same, same but different” – the product of weak alternation that produces a race to mediocrity is fed by what Fukuyama calls “patrimonialism or the natural human propensity to favour family and friends”.

According to Fukuyama this natural propensity “constantly reasserts itself in the absence of strong countervailing incentives. Organized groups – most of the rich and powerful – entrench themselves over time and begin demanding privileges from the state.” Better still here is Fukuyama’s extended explanation on the development of this kind of propensity over time:

In its early stages, human political organization is similar to the band-level society observed in higher primates like chimpanzees. This may be regarded as a default form of social organization. The tendency to favour family and friends may be overridden by new rules and incentives that mandate, for example, hiring a qualified individual, rather than a family member. But the higher-level institutions are in some sense quite unnatural, and when they break down, humans revert to an earlier form of sociability. This is the basis for what I label patrimonialism.” (Francis Fukuyama, The Origins of Political Order).

I find that the key words in this quote are “break down” – referring to the break down of higher-level institutions. The utopic state of perfect meritocracy is in fact a sophisticated form of democracy that is achieved gradually through the build up of “rules and incentives” and the acknowledgement thereof. In its complex form democratic society combines respect for institutions and the rules (rule of law, separation of powers) with levels of specialisation.

The previous nationalist government segued in and out of this form of higher-level institutional development without however managing to completely detach itself from the primary level of patrimonialism. Much of our political system – what J’accuse insists on calling “The PLPN Philosophy” is  deeply entrenched in a primitive form of patrimonial politics. There is no incentive to improve, just the type of incentive that Orwell describes as “power as an end”. There is no politics of service but politics that aims to please an ever wider circle of “interest groups” that can be roped in for the  votes then appeased with Quangos once the heads are counted.

So what is worse than the iced buns? It is the erosion of the institutions. The complete lack of awareness that the very fabric of democratic society that keeps us together is being gradually broken down in the name of Taghna Lkoll madness. Ironically this government does not stop reminding us that it wants to embark on a monumental reappraisal of our Constitution – at this stage it would be like giving a three year old kid the task of renovating the Sistine Chapel ceiling.

“There is in fact a curious blindness to the importance of political institutions that has affected many people over the years…”

 

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Constitutional Development Mediawatch Politics

Zombie democracy revisited

One of the Economist’s leaders this week is entitled “Zombie democracy” and essentially discusses the concept of majoritarianism. Modern democratic governments are elected by popular suffrage and are formed on the basis of majority rule (cue the discussion on representation, majority government and coalitions). Once an election is over it is assumed that the party obtaining the majority of support will govern. Of course the essence of liberal democracy does not stop there. There are in place numerous institutional and systemic checks and balances to ensure that the government does not get too drunk with power. At least in theory this should work.

In Malta we have recently segued from a government that enjoyed a relative majority to one that enjoys a gulf of majority – at least poll wise. the first hundred days of Muscat’s government have betrayed an arrogant confidence that is cushioned by the implied thought that the massive majority cannot be wrong. Can it?

When last Thursday I voiced my agreement with what Caruana Galizia had to say on Simon Busuttil’s statement that “36,000 people cannot be wrong” I provoked quite a discussion on facebook. For the record here is the clip from Caruana Galizia’s article on the Indy:

Simon Busuttil said a few days ago at a party event that “36,000 people can’t be wrong”. Of course they can. A hundred thousand people can be wrong; a hundred million can be wrong. Rightness and wrongness do not derive from popularity of belief or opinion. To correlate whether people are right or wrong to how many people did or think the same way is a logical fallacy. Some of them already know they were wrong. They are able to see it, some even to admit it.

Do elections really give you an idea of what is wrong or right? Of who is wrong or right? Votes are won (or “bought“) for many different reasons and more often than not being right has little or nothing to do with it. A campaign such as the Taghna Lkoll campaign can act as an opiate for a large number of people and once it is combined with the accumulation of disgruntlement at the incumbent it is a sure formula for success at the polls. Alas it has little to do with that formula being a formula for success at good democratic government.

The success at the polls projected TaghnaLkoll to the dizzy heights of power and within the first hundred days we have a clear picture that the hopes of the voters were not to be matched. The latest dismal move is the dismantlement of a diplomatic set-up in order to make way for lackeys, travel consultants and comperes to be the face of Malta abroad. Also the earliest cabinet reshuffle in history was the result of Labour not having stuck to its original position (separate ministries for justice and home affairs). The musical chairs in cabinet is all about keeping friends close and enemies closer. It’s obvious. Power broking for the sake of power broking is what is going on with no place left for the national interest. Add to that the not too transparent dealings with the Chinese government and what you get is a Joseph Muscat government bulldozering over any semblance of liberal democrat checks and balances.

Here’s the Economist on how this happens:

“BUT I’ve won three elections!” Recep Tayyip Erdogan, Turkey’s embattled prime minister, growls at his critics. On the face of it, his case is compelling: surely, many people in Turkey and beyond would agree, popularly elected leaders can govern as they please? That’s what democracy means. Well, no. Majoritarianism—the credo of an expanding group of elected but autocratic rulers around the world, which holds that electoral might always makes you right—is not true democracy, even if, on the face of it, the two things look alike. It is worth explaining why.

The solution is in the mind of the politicians themselves. Gonzi’s government did cause much damage to the already flawed concept of democracy that existed in the popular mindset. The clinging to the seat of power was not an educational step forward and sowed the seeds for the abuse of democracy by Muscat and the TaghnaLkoll crowd. As his government became weaker and weaker Gonzi clung to the relative majority in parliament and played the actors sufficiently to last the whole legislature. At times it takes a conscious step in the mind of leaders themselves to recognise the limits that are accorded to majoritarian power – again the Economist:

Beyond documents and institutions, the difference between crass majoritarianism and democracy resides in the heads of the mighty. Democrats have a bedrock understanding that the minority (or often majority) who did not vote for them are as much citizens of their country as those who did, and are entitled to a respectful hearing; and that a leader’s job is to deliberate and act in the national interests, not just those of his supporters.

This leader could have been written for Muscat. Instead the Economist is probably still not alerted to the goings on in the European Union’s smallest member so it uses Erdogan, Lukashenko and Hungary’s Orban as examples. The adaptation of these leaders to democracy has been simply to ensure that come election time they get that crucial bulk of votes that puts them into the driving seat for the next legislature. Practices to obtain such votes may be illegal (vote-buying, vote-rigging) or borderline legal (jobs, amnesties promised). In time we have seen how even parties in the more classical of democracies have morphed into election winning machines that have no clue how to make use of power democratically once elected. They groom the zombies to vote them into power… then stick to it with no regard for the wider community. The Economist concludes:

The basic idea of a democracy is that the voters should pick a government, which rules as it chooses until they see fit to chuck it out. But although voting is an important democratic right, it is not the only one. And winning an election does not entitle a leader to disregard all checks on his power. The majoritarian world view espoused by Mr Erdogan and leaders of his ilk is a kind of zombie democracy. It has the outward shape of the real thing, but it lacks the heart.

 

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Constitutional Development Politics

The Powers of a President

Jeffrey Pullicino Orlando has been quoted by Malta today saying that “the President of the Republic would be justified in calling the Prime Minister to see if he has a majority after Franco Debono’s comments.” (see also on Maltastar). Well he wouldn’t. The President of the Republic need not take any such initiative because it is not up to him to do so. Our Constitution (God Bless the Paper it is written on) is quite clear about when the President may intervene with regards to the Prime Minister (and the leader of the opposition).

The Constitution

Everybody knows that the President appoints the member of the House who in his (the President’s) judgement is best able to command a majority of the members of that house. That situation arises “Whenever there shall be an occasion for the appointment of a Prime Minister” (article 80). On the other hand the Constitution is quite clear about the removal of the Prime Minister (article 81) and it that case it specifies quite clearly that this occurs: “If the House of Representatives passes a resolution, supported by the votes of a majority of all the members thereof, that it has no confidence in the Government, the President may remove the Prime Minister from office“.

You see Jeffrey. It is not up to the President to decide whether the PM still enjoys the support of the majority of members of the House. It is up to the House voting on a clear no confidence motion to do so. Had the drafters of our Constitution wanted to give the President the power to constantly use his own judgement – and not that of the House – in order to assess whether the PM commands a majority then we would have had an article similar to article 90(4):

90 (4) If, in the judgement of the President, a member of the House of Representatives other than the Leader of the Opposition, has become the Leader in the House of the opposition party having the greatest numerical strength in the House or, as the case may be, the Leader of the Opposition has ceased to command the support of the largest single group of members in opposition to Government, the President shall revoke the appointment of the Leader of the Opposition.

The constitutional provisions have already been ignored once in the Richard Cachia Caruana motion and procedures (article 111 in particular). We cannot afford to have politicians continue to ride roughshod on the constitution, observing only the parts of the law that are convenient to them. Abela’s mission in Peru is safe for now.

Punditry Revisited

I am led to believe that some observes sill imagine an extension of the life of this government beyond the reopening of parliament after recess ends. I disagree. The summer break is a reprieve and a chance for the PN to put its house in order. An election cannot be too long in the waiting once the summer break ends – if only for the simple obvious reason that one of either JPO and Debono will be prepared to vote against the government in a crucial confidence motion.

Whether Lawrence Gonzi is prepared to call their bluff – if only to let the blame of the end of government to fall squarely on their shoulders – is a matter of electoral brinkmanship. What we can say for certain is that this kind of midsummer rumbling is a prelude to the silence before the storm. Expect that silence to occur mid-August and the storm to hit you with a vengeance around September (if you’re still around and haven’t melted in the heat).

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Constitutional Development

Ordinary Salaries & Extraordinary People

Labour’s latest rant about Richard Cachia Caruana and his salarial status within the government structures has provided the world with proof, if any was needed, that the PL still sits uncomfortably with its usurpation of parliamentary power for a very private lynching affair. Following a statement by the Labour communications office we read the following comment by the unnecessarily anonymous “Labour Party Spokesman” (best not be able to identify who is behind the latest excuse for politicking):

“Can the Prime Minister explain which civil servant takes a terminal benefit and transitional facility,” a Labour party spokesperson told MaltaToday. “This is proof that Cachia Caruana was not just any civil servant but is the equivalent of a minister. Labour is right when saying Cachia Caruana is accountable to the scrutiny of parliament, because he is not a civil servant like the others.”

The telling bit is the last sentence. Labour (or in any case its anonymous spokesperson) is painfully trying to square the circle of “accountability of civil servants”. The motion presented in parliament by Luciano Busuttil et al flew in the face of all parliamentary convention and practice. Labour would love to seem to be partisans of the doctrine of parliamentary sovereignty and have gone to great lengths to sing to the tune of “strengthening democracy’s greatest institution”. When push comes to shove though, political expediency easily trumps parliamentary convention.

On the law

Our constitutional system is a hybrid one. We do not have the “historic” unwritten constitution in Diceyan terms and questions of supremacy are (currently) controversially divided between the written constitution and parliament. What we definitely have inherited from UK jurisprudence is the system of parliamentary conventions. In Dicey’s words:

“(A) set of rules (that) consists of conventions, understandings, habits or practices which, though they may regulate the conduct of… officials, are not in reality laws at all since they are not enforced by the courts”. (The Law of the Constitution)

Among those conventions is that of “ministerial responsibility” that can be both “individual” or “collective”. The modern form of ministerial responsibility is based on two ports – (1) a minister’s political or administrative competence, (2) a minister’s personal morality. The original application of the competence rule held ministers answerable to Parliament for every action undertaken by their department’s civil servants. Ministers took credit for civil servants’ achievements and were expected to resign for any grave errors committed by their staff. The corollary to this is that individual civil servants would not face parliamentary scrutiny or public criticism for their own failures.

In time the expanding nature of government administration led to an adaptation of this conventional rule. The effect of this adaptation was not however that of bringing civil servants within the ambit of parliamentary scrutiny but rather the additional requirement of proof: that a Minister was aware of the or personally involved in a particular decision before being forced to resign.

On the person

In the Cachia Caruana case (can we call it parliamentary impeachment or would that risk opening another can of legal worms?) we clearly have a bypass of the convention of Ministerial responsibility. Parliament dragged a civil servant (ordinary or extraordinary is irrelevant) before it and proceeded to vote. Even if we set aside the fact that the actual accusation was never proved (the Wikileaks accusation did not, if you pardon the pun, hold water) and that the vote was carried merely in Sicilian vendetta style we are still left with an even more important consideration. The Labour party motion blatantly ignored all forms of parliamentary convention for the sake of political expediency.

We now have the baying hounds drawing attention to Richard Cachia Caruana’s remuneration. Forget the return of Maltese relativism for a moment. The issue is much more serious constitutionally speaking. The current trend among the Labour party is to highlight their dedication to the real constitution – the real parliament they say, not the multi-million building in Valletta. They have shot tirade upon tirade at the party in government for supposedly diminishing the role of parliament. When it came to turning the parliament into a vehicle of political expedience the very same Labour party had no qualms but to ride roughshod over any semblance of parliamentary convention. It did not even bother to pretend.

The afterthought has led to a sort of backtracking. It is now crucial for Labour to try to prove that RCC was a kind of Minister – not a civil servant. It is crucial because that way they think that they would save their face. What they are actually doing is providing further proof that their knee-jerk activity acting as a second-fiddle to Franco and JPO.

Then again what do you expect from a party that seems to be determined to introduce the very progressive system of government by facebook?