Writing in today’s Times of Malta controversial ex-politician Franco Debono discusses recent happenings in the field of constitutional reform. The article titled “The reforms we implement should be our own” concerns what Franco calls “the colonial mentality of having reforms imposed”. Constitutions and constitutional reforms must be autochthonous Debono tells us and not granted by a foreign sovereign.
What interests me today is the basic premise of Debono’s argument: that we are having reforms imposed on us by some foreign power or authority much in the same way we depended on sovereigns granting us constitutions in the past.
In simple terms, what Debono is advocating here is that any changes to our constitution must not be imposed from the outside but must come from within the country (“We the people”, presumably through the able hands of our representatives and their advisors). There is very little to criticize here: the sovereign constitutional power resides with the people who delegate their representatives (and specialists) to give legal shape to that power.
Debono does not stop there. He speaks of what he calls ‘the unfortunate and tragic circumstances in which the Venice Commission, a respected organ of the Council of Europe, was requested to make proposals about this country’s institutions two years ago”. After outlining what he terms the Commission’s ‘proposals’ he states the following:
Benefitting from the expertise of international bodies is one thing. But having fundamental structures extensively imposed on the country by external institutions is humiliating and marred by a bitter colonial taste, especially when those proposals have a local origin. Steering away from a colonial mentality towards a sentiment of national pride is the greatest reform that this country needs. The rest should follow.
The reforms we implement should be our own – Franco Debono
This is where Debono’s original premise falls flat. The implication is that the Venice Commission is imposing content on Malta, and that somehow the constitution of Malta has slipped from the sovereign hands of the people into the hands of foreign writers. M’ghadniex rajna f’idejna (we no longer have the reigns of our country in our hands). This jingoistic, nationalistic nerve that Debono is tapping fits conveniently in the current narrative of misplaced patriotism and anti-European sentiment.
The assertion of any imposition of the actual rules and laws and structures is false. This argument can be extended not only to the Venice Commission (an institution within the Council of Europe) but also to the Commission and Court of Justice of the European Union (institutions of the EU), both of which may be tasked to review the conformity of Malta’s laws and regulations with the rule of law.
Debono is ignoring the fact that such institutions are tasked with checking the standards of our laws and not their content. Every member state of the Council of Europe and European Union remains the sovereign master of its legal system. Member states are free to alter and draft their own laws as they deem fit but such laws are tested against standards which the very same member states have agreed to in their full, sovereign membership of international communities.
Think of this as a VRT test. You are free to purchase any car you choose and can tweak it to your liking so long as it conforms with the agreed standards for roadworthiness. A VRT tester does not impose a car on you but makes sure that your car is up to the standards everyone agrees to.
The Venice Commission will look at any suggested reform which the Maltese state makes. It will do so using a standard measure that is the rule of law. Should any of the measures fail to fit that standard the Venice Commission will make that known. The same goes for potential cases before the ECJ. As the Polish government found out recently, every Stateis free to change its system of appointment of judiciary – so long as that system guarantees an observance of the basic tenets of the rule of law.
Being held to certain standards is not the same as being forced to accept laws that are not ours. The standards are standards established for our own good and which we, as a sovereign nation member of international communities, adhered to. Our laws must be safe. Safe for us, the citizens who abide by them.
At the heart of such standards is the interest of “We the people” who are protected by their application. Far from being an imposition, it is an international guideline of democratic standards that we are being asked to conform to.
Given what Franco calls the “unfortunate and tragic circumstances” into which our country was dragged, the fact that the abusers of our constitution and law for so long are now being set to a higher standard when tinkering with the laws is a small but worthy consolation.
The only colonial mentality of submission would be to allow those who have held our constitutional rights hostage for too long in the name of a party duopoly to dupe us into thinking that conforming to the right standards is some blow to our national pride.
This article first appeared on The Shift News on 10.12.2019.
Sunday afternoon turned out to be quite surreal. As the sun began to set on The Eternal City, I stood at the top of the Spanish steps looking down on a huge crowd of people gathered to follow the Pope’s Immacolata procession.
At that precise moment, some 650km away (as the ravenflies) another crowd was beginning to assemble. Unlike the papal crowd, the crowd at Castille Square was calling for justice and accountability. They wanted the man who obstinately clings to the seat of power to let go immediately.
Only the previous day, that man had brazenly been to visit the Pope. Undoubtedly, this was part of his ‘business as usual’ charade: the same charade that would continue on Sunday with his ‘farewell tour’ surrounded by those after his sullied throne.
Since the precipitation of events (to put it mildly) drew Castille’s occupants into circle upon circle of Dantesque damnation, the government’s effort to ‘minimise the fuss’ has multiplied. There has yet to be responsibility assumed for the mess.
Sure, we have seen resignations. They are not the kind of submission to authority that you would expect, though. Rather, those resigning are fêted as heroes. Chiefs of Staff “move on“, Ministers reaffirm their dedication to the cause and the project — and we must be the only country where a Prime Minister mired in corruption and abuse of power is on the road to beatification.
The way the government and backbenchers have rallied behind Muscat can only be described as the thickness of thieves. Each day of denial rendered every one of them complicit in the institutional abuse and cover-up.
Yet, the growing wave of discontent is now clear for all to see. Beyond the Potemkin village meetings that Muscat and friends can orchestrate among the flag-waving diehards lies a brave new world that is gathering momentum and courage. It is a disparate agglomeration of individuals still in search of a leading voice.
Theirs has been an uphill struggle. First came the ‘early adopters’ who, from the start, realised that something was rotten in the state of Denmark.
Then came the angry crowd who had understood that this was not a government for the people by the people, and they had a reason to complain that it was not right.
Last came the doubting Thomas’ who could only be swayed with the ever so deceptive ‘proof’. For the first time in the history of this young nation, a political movement of strange bedfellows was born out of the realisation that the Old Republic was no longer a servant of the people.
Yes, as part of the learning curve in civil action, at every step we had to stress that this was not a political movement (political with a small p as in ‘partisan’). Yes, we had to overcome the mutual diffidence and suspicions of underlying agendas. The remarkable nature of the moment lies in the fact that the overwhelming consensus within the movement of change is that change must come without the political (with a small p) parties. It must happen despite them.
We are a few steps away from understanding that this could be a defining moment constitutionally for our republic. At this stage, the eyes of people from different ideological backgrounds are open. They understand (for different reasons) that our Constitution, and hence our State, is paralysed by conflicting interests.
For some, it is ‘the businessmen’. For others, it is the parties that abuse their power. For others still, it is the lack of certainty. The next step is for all the forces contributing to this wave of anger at the establishment that has let us down to accept that it is the whole system that needs a reboot – beyond the different ideologies.
Prepare the ground for a constitutional reform within which the different ideologies and projects for the country’s future may find fertile ground to debate and grow. A project that returns politics to the normal, boring politics — but one with a capital ‘P’.
Those who expect this change to come from within one of our stagnant parties have still not read the writing on the wall. They will try to operate within the same constitutional constraints that the parties have abused since the birth of the republic.
The latest surveys show that the Labour Party still leads the PN at the polls, but it has not gained in popularity. Rather, it seems to be losing support. The PN has practically not budged in a situation where it should have been benefiting from the anger as the Party in opposition. I do not read these signs negatively. The loss of the two-Party support is our nation’s gain.
The country needs real leaders. Individuals who can guide this movement through this bumpy phase. It must not, and will not, stop at justice for the corrupt. It must also proceed to lay the foundations for the new republic.
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 :
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”.
Our parliaments have begun to discuss the state of the rule of law in Malta. I use the plural form because it is not only our national parliament that has begun to debate this but also our other parliament, the one that sits in Strasbourg. The President of the European Parliament is as much the president of a Maltese institution as is Anglu Farrugia.
All too often, whenever somebody like Antonio Tajani speaks you can sense people thinking that they are being spoken to by a foreign authority – the mentality of indħil barrani (foreign interference) creeps in. This misunderstanding is an almost harmless example among many that underpin the poor assessment and consequent weak expectations that “we the people” make and have of our institutions and their constitutional duties.
The main consequence of all this is that as a collective we become lousy arbiters of the use of the sovereign power with which we have empowered our institutions. As a fledgling nation we have seen our institutional set-up gradually adapted to suit a gross misconception – that the ultimate sovereign power that needs representing is not the people as a whole but bipartisan interests. In simple terms, the more the basic laws got rewritten, the more this was done to encapsulate a system of alternation and to redefine principles such as “fairness” and “justice”.
The result would be, for example, that a “fair and just” appointment under our laws is one that is acceptable to the two parties that became the only players in a system once modelled on a more representative idea: the Westminster model. As if that were not enough, the constant tinkering with our basic laws resulted in an executive on steroids – a government that would lead by virtual dictatorship for five years – that would also practically neutralise the representative organ of the state.
An overpowered, unaccountable executive, a neutered house of representatives and finally a judicial, watchdog and policing network that risks being brought to the heel of the executive that appoints it without any sense of meritocracy or transparency. That is the state of the rule of law that should be discussed in our parliaments. That is the spring board for constitutional reform that should have long been on the national agenda, but instead it kept being hijacked in the supreme interests of the survival of the two behemoths of Maltese politics: the nationalist party and the labour party.
Watching last Monday’s debate in parliament I could not help but think that we are about to relive yet another moment of cosmetic changes.
Delia, elected on the strength of a “the-party-is-above-everything-else” message hitched onto the “civil society” demands in an apparent display of goodwill to discuss any necessary changes. The thrust of his message though still let off a whiff of the appropriation (and watering down) of national causes that we have seen all too often from nationalist circles.
Labour, on the other hand, while leaving the door open for some kind of constitutional reform, bent over backwards in trying to explain that the rule of law is already alive and kicking in Malta. The collective denial of the patently obvious is in line with the daily Potemkin Village approach that their government’s propaganda machine seems intent on portraying. Under a Labour administration of L-Aqwa Zmien, the revolution will definitely not be televised.
Civil society has made its first calls that are not so much a call for blanket reform as for clear signs of change. The replacement of the AG and the police commissioner is still couched within the old principle of “justice and fairness” – approval by the two princes in parliament. A real constitutional reform must target more profound changes – a more representative parliament with a stronger monitoring role, an accountable executive and an independent network of judicial, monitoring and policing structures.
Calling upon the political parties to do what they do worst is counterproductive. A real constitutional convention would be made up of a cross-section of experts from civil society with the parties as equals among others and not as the leaders of such a project. The DNA of a new constitution should not be framed in terms of the needs of two parties but with the idea of a Malta 2.0 in mind, where the rule of law does finally reign supreme.
We need a Malta where we are all servants of the law so that we may be free.
* This article appeared in the Malta Independent on Sunday on the 5th of November 2017.
So it turns out that Mario Philip Azzopardi is not the most congenial person to work with. And that, it seems, is putting it mildly. It is ironic that of all the “meritocratic” appointments under the present government it is Azzopardi who joins the magisterial nominees in the eye of the storm(s) currently being whipped up. Azzopardi proudly boasts of being the man behind the infamous “I’m not sorry pa, I’m voting Labour” campaign that epitomises the drivel that was sold by Muscat’s campaign team before the election. Muscat’s Labour was sold as an all-encompassing movement that would radicalise politics in Malta and take the heavy burden of nationalist arrogance and mismanagement off the Maltese people. The (man who thinks he is) Obama from Bahrija managed to pull off the biggest trick with a sufficient amount of people having swallowed his well packaged drivel hook, line and sinker.
Almost three years of Taghna Lkoll government later the masks have completely washed off (might have been the ice bucket challenge) and any pretence that this government harbours any values that relate to anything remotely resembling meritocracy (one of the trumpet calls of the campaign) have been dispelled. The crisis of this government is in fact first and foremost based around its abject failure to hold up the one principle that shone above all during the campaign : meritocracy.
The arts community is now up in arms because the man appointed as V18 artistic director has reached the limit of yellow cards. In an article in the Times today we find the very dangerous allegation that Azzopardi flaunted his political links in order to pressure artists into collaborating with him. Does it stop with Azzopardi? Of course not. He cannot be made the scapegoat of a virus that has been injected into the whole fabric of our institutional make-up. Take the issue of “persons of trust” for example. Only a couple of days ago our PM was happy-tweeting the fact that the employment rate in Malta was such that 18 persons a day have found employment under this government – of which 80% are in the private sector. Which might sound good but it also carries the interesting fact that under Muscat 4 people a day have been appointed to the public service.
Every week. While Michelle Muscat burns an inordinately ridiculous amount of diesel, and while Joseph Muscat cashes in 144 euros for renting his valueless Alfa to himself, 28 new employees join our government’s wage bill. Most of those, it goes without saying, are employed as “persons of trust” – a twisted interpretation of constitutional principles that is only there to justify one simple point: You Have to Be Labour to Be Trusted. I’m sorry pa.
Does it stop there? Hell not it doesn’t. This week the leader of the Opposition tweeted that the ball is now in the President’s court with regards to the nomination of Farrugia Frendo as a magistrate. New doubts have been raised (and echoed) from different quarters – retired judges, the dean of the law faculty and the Chamber of Advocates as to the eligibility of Farrugia Frendo for the post. Since Justice Minister Owen Bonnici insists on going ahead with the nomination anyway without consulting the Commission for Administration of Justice Busuttil has reasoned that the only guarantor of the consitution that is left is the President. All this is happening when we were supposed to be facing a monumental and uplifting reform in the justice sector – pivotal among which was an improved method of judicial appointment.
Instead of the promised reform we risk a patchwork re-evaluation based on knee-jerk reactions that are in their turn fruit of the current set of circumstances. The judicial reform cannot be the result of such a knee-jerk reaction. Especially not the reform of judicial appointments. A well-thought out reform has to fit in to the general fabric of constitutional discourse – that very discourse that has long been tainted by partisan rivalry and hijacked by hapless interventions that deprive it of all form of objectivity.
The lack of meritocracy is in fact the virus that has terminally poisoned this government and with it the it has gone on and poisoned the very institutional and constitutional fabric of the state. Democracy is in danger. I say these words not with the lightness of the kind that is normally around when campaign slogans are coined. Democracy is really in danger when what is unfolding before us is a general legal and political remake of the institutional fabric but one that is in the hand of power-serving, power-loving and power-hungry incompetents. This kind of reform that has gone by monikers such as Second Republic or Constitutional Change and that was supposedly heralded with the arrival of the Taghna Lkoll Politics is one that is only dedicated to as much self-preservation as possible for as long as possible by a select circle of individuals who found themselves at the centre of society through a series of coincidental events.
It is dangerous. It is the triumph of ignorance and greed. It is happening right here, right now.
