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.
Despite repeated efforts, for almost two years, to engage the Polish authorities in a constructive dialogue in the context of the Rule of Law Framework, the Commission has today concluded that there is a clear risk of a serious breach of the rule of law in Poland.
The Commission is therefore proposing to the Council to adopt a decision under Article 7(1) of the Treaty on European Union (see Annex II).
The European Commission is taking action to protect the rule of law in Europe. Judicial reforms in Poland mean that the country’s judiciary is now under the political control of the ruling majority. In the absence of judicial independence, serious questions are raised about the effective application of EU law, from the protection of investments to the mutual recognition of decisions in areas as diverse as child custody disputes or the execution of European Arrest Warrants.
This is not something that can or should be taken lightly. In a local (Maltese) context, this should put paid to the myth that the eyes of the EU institutions are only focused on Malta (vide Pana Committee and recent Rule of Law task force) and that they are focused on Malta because of the work of some “traitors”. It should also put paid to the yarn being spun in some quarters that the rule of law is some “cliche'” that only serves the ulterior hidden purposes of power-hungry groups eager to overturn the current status.
Interestingly the Commission focuses on the judicial reforms in Poland that have severely prejudiced the independence of the judiciary – the main default in the state of the rule of law in Poland is seen to be the judicial branch. The deficiencies are in the powers of appointment and removal that have been arrogated to the executive in recent legislative changes.
Why should Malta care?
Malta’s current system of appointment, removal and scrutiny of the judiciary is already flawed as it is. All the talk about reform, even in the judicial sector, remains just that – talk. Over the years the loopholes in the system that stem from the excessive discretion of an all-powerful judiciary have only been worsened. Our Prime Minister may “take note” in some cases (in answer to the Chief Justice for example) or “be perplexed” in others (as when he feigns ignorance of the consequences of the Ombudsman’s warnings regarding the internal kangaroo courts being set up within the public service). There is only so long that these lies can hold though.
Alarm bells will continue to be rung – if not by a spineless opposition that seems to be ever more hell bent on joining the populist battle, at least by a wider civil society made up of varied exponents and NGOs that feel it is their duty to act as Malta’s last conscience. Poland had long been playing with fire and is now in direct line for losing certain rights under the EU system. Malta could very well be next.
In the eighties Malta looked closely and learnt lessons from the happenings in Warsaw and Gdansk. The solidarność (solidarity) movement was adopted as a precursor for the calls of Work, Justice and Liberty that brought about change from a tired system. This time round we might do well to take heed and see how Poland solves its problems with praworządność (rule of law).
I read through Mgr Said Pullicino’s fire and brimstone sermon before the assembled judiciary and other representatives of the legal profession with the patience of a Job tried and tested. Earlier in the day I had published my initial reaction on the blog and for the benefit of those who are lucky enough not to yet have the words reverberating in their ears, I shall translate what LorSignor Said Pullicino (Their Sir – definitely not mine) said:
“Before such a clear doctrine of its Teacher (aka Jesus of Nazareth) the Church has nothing to discuss about divorce and the introduction thereof. She (the Church) must limit herself to teaching that whosoever cooperates in any way with the introduction of divorce into the laws of Malta, whosoever applies the law of divorce and whosoever makes recourse to such a law (not being the innocent party), is breaking the Law of God and therefore will be committing a grave sin (ghalhekk ikun qed jidneb b’mod gravi).”
My initial reaction was simple: The Church, being a private institution (even though we are press-ganged into its membership at a moment in life when we cannot raise much objections), is within its rights to determine the parameters of what constitute bonus points towards an eternity of roasting in hell in the egregious company of infidels. True. There are no two ways to go about that. This is no democracy – it is a Universal Catholic Top Heavy Illumination claiming that its dogmas and precepts are inspired by the Old Man in the Sky. Since the witch doctors, druids and augurers of the past, this has been an absolute unqualified condition of religious authority and it is not up to mere mortals to contradict that.
I bow my head low (as low as is politely possible) to such authority over their flock of fervent followers as I would bow my head to the authority of whatever religious leader has over his particular flock. When Said Pullicino does his pick’n’mix selection of biblical tracts and papal encyclicals in order to substantiate the conclusion that the Catholic Church reaches in this particular corner of the world, I cannot be bothered to cross-refer him to other similar collective quotations used by other denominations to reach dramatically different conclusions since I already know the retort that lies in such a battleground, and it involves diabolical citation of scriptural writings.
The Books of Our Judges
Sure. We cannot interfere in Said Pullicino’s expounding of Catholic dogma – nor can we question his absolute statement, which rules out any form of discussion with the Catholic Church on divorce. It’s their problem. “Their” being Catholics. The problem is that gathered before Said Pullicino was no ordinary flock but the representatives of our legal community (oops I almost said brotherhood) gearing up for the opening of another Forensic Year. I am told that such gathering is by invitation and does not form part of the official events of the legal fraternity so presence at such a gathering was optional.
Having said that, I do find it jarring that a symbol of the wisdom of the secular state and a group of people representing one of the main institutions that guarantee the balance of power in the land gather so forcefully before a particular confession to the point that the speaker from the pulpit could claim that “The tradition in the Church that at the beginning of the judicial year, the Judges and the Administrators come to the Altar to request the help of God, the Holy Spirit, in order that he can help them in their ministry (his words not mine) of administration of justice began in the Middle Ages”. So that’s it then? They gather for the sake of perpetuating tradition, right?
The eminent LorSignor goes on to expound the principle of illuminated decision implying that secular law is really an expression of Natural Law (the Law of God expressed by man in recognition of His Justice) and that such service as is given by administrators of justice is in order to put into effect this natural law for the COMMON GOOD. What follows is a rambling about no man being an island and then a warning of the dangers of a secular society. The cheek. The absolute gall. He WAS speaking to representatives of the state with a duty to apply the laws of that secular state when sitting at the bench.
LorSignor went on to attack the consequences of certain “secularisation” and lists the offending laws with the usual confusion of evils (divorce, abortion, homosexuals) that benefits those who have already ruled out any discussion on any one of them. Which is why he concludes the first part of the Sermon and the Rant with the unequivocal condemnation of collaborators with an eventual law on divorce to the status of “committers of grave sins”. Speaking to an assembled congregation of servants of the Constitution, he actively urges them to break the law by not performing their duty before the law.
And my reaction to that was simply: resign. Not Said Pullicino, but the judges called upon to refuse to administer the law of the land. Should they decide to do so then their position is untenable. We cannot have “conscientious objectors” sitting on our benches in court. We cannot have servants of the law subjecting their discretion to their moral values. Should a judge decide that Said Pullicino’s brand of Catholicism is also his then he is free to do. What he is not free to do is to usurp the workings of a secular state with the morals of a Church that dwells in Middle Age traditions.
The Satanic Versions
What Said Pullicino fails to notice is that having judges sitting on secular courts but applying religious principles above secular law is equivalent to the final admission that this state of ours has succumbed to the Catholic Version of Sharia Law. Which is worrying. Because what will stop Said Pullicino from reviving Mosaic Law in his next Medieval Traditional Sermon next year? And what will he stop at exactly? Given the propensity to confuse adultery with divorce, and given the willingness to throw divorce, homosexual marriage and abortion in the same basket, what will stop LorSignor reminding next years’ legal beavers listening in to his rant that Leviticus 18:22 was confirmed by Paul the Tourist in 1 Corinthians 6:9 and Romans 1:28?
What was that about? I’ll tell you what that was about. Here’s Leviticus: “Thou shalt not lie with mankind, as with womankind: it is abomination.” And here’s Corinthians: “Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.” What guarantee does Said Pullicino give the secular members of this state that homosexuality will not become his next pet inspiration and anathema? And if it will not? Why not?
strong>To’ebah (abomination)
All is not lost though and it is important to keep matters in perspective. Others have begun to react to this Medieval Speech – Here’s what just-retired Judge Philip Sciberras had to say: “I am a practising Catholic but I believe the state is obliged to regulate such situations by introducing laws. Members of the judiciary should not object to hear divorce cases because of some medieval imposition.” Michael Falzon (of the Constructor’s Association) pointed out the apparent contradictions in Roman Catholic practices in his blog on MaltaToday (“The Tribe that lost its head”, Friday 8 October) and I.M. Beck also had something to say as to the insensitivity of some arguments.
The truth of the matter is that much as we might find it interesting to try to “convince” the Church and its flock of the politically and democratically heretic nature of this latest intervention, we might as well be arguing with a gagged, blindfolded and deaf monkey. Said Pullicino told us that clearly: “the Church has nothing to discuss”. And so be it. In doing so the Church (in the guise of Said Pullicino) is also abdicating its tradition of social contribution that started in the early 1800s.
I count myself among those who argue in favour of a social role of the Church in discussions about family, social cohesion and solidarity. What I refuse to consider is the Church of indulgences, fire and brimstone, mortal sin and whatever other superstition it chooses to revive. By shifting the argument from social participation as a peer with valid experience in society to the field of supernatural abomination and fear, the Church does not only not wish to discuss but it also finds itself in a position when it stops being anybody with whom it is worth discussing. The Church has abused the supernatural before to meddle with the secular – remember the abuse of the Fear of Mortal Sin in the 60s when reading a newspaper could win you a timeshare in hell?
Kill your idols
This is a secular society at the start of the 21st century. We are proud members of a wider community that recognises basic fundamental rights as being the foundation of harmonious living in which society strives towards a common good. These include respect for the dignity of man, the right to life, the right to integrity of the person, the right to private life and to a family and the right to marriage and the founding of a family. This society believes in freedom of thought, conscience and religion and believes that we are all equal before the law, which is why it is founded on the principles of non-discrimination and recognises cultural, religious and linguistic diversity.
This society has enshrined such principles as solidarity, equality and justice in its basic tenets and now, thanks to the Charter on Fundamental Rights within the European Union, we have added an extra cushion and guarantee to these rights and principles. The preamble to the Charter states that: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.” The ultimate aim is a future of peace based on common values.
Given the choice between the comfort of secular law inspired by the common fundamental values of mankind and the volatile superstitions of the Catholic imposition I know where my heart lies. What I do find disappointing is the abdication of responsibilities by the majority of our political leaders. It is evident that they are biding their time – unable to really fathom which way the wind is going to blow in the end. They have been dealt quite a blow by Said Pullicino since any MP voting for the law will surely be branded a “co-operator” and public sinner – so a huge big up (well done) to Pullicino Orlando for continuing his crusade. It is not a sinful crusade. It is a crusade to grant a civil right and possibility to numerous individuals who would love a second, civil chance at marriage. No amount of Taliban-like rhetoric should prevent that right from being enacted at law and applied in the courts of our land.
Pauline Privilege
I had not heard of the Pauline Privilege until the whole ruckus began. Look it up – it is an interesting, exceptional circumstance that relates to ‘pagans’ (who incidentally don’t only live in the African bush). It is an interpretation of another of Paul the Tourist’s letters (1 Corinthians 7:10-15) and is interpreted “as allowing the dissolution of a marriage contracted between two non-baptized persons in the case that one (but not both) of the partners seeks baptism and converts to Christianity and the other partner leaves the marriage”. In that case the Church is perfectly happy to recognise the divorce for the sake of greater proselytising.
Pauline Privilege or no Pauline Privilege, we are not meant to be discussing the contradictions of the Church. The issue at stake is the secular laws and their application. There is no doubt that Said Pullicino’s faux pas has not contributed in any good way to the issue of the introduction of divorce. When I say faux pas I repeat that this is not in any way a judgement on the beliefs and interpretations of the religious institution but on its evident intent of holding the servants of the state in a moral blackmail and preventing them from performing their duty.
It is in that sense that we risk being damned as a nation. Condemned to the damnation of the imposition of the beliefs and values of the few over the laws for and by the many. It is, in its own way, another watershed in the defining of this young nation of ours.
www.akkuza.com is recovering from a savage bout of the common cold and flu.
