Tag: reform

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Constitutional Development

Il Triangolo No

triangolo_akkuza

 

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
Campaign 2013 Values

This honourable judge

Life on the island past the electoral truce has been anything but boring. There are times when the concept of boredom can begin to seem to be an unattainable desirable bereft of the negative connotations that normalcy and monotony might normally carry. These are the kind of times best described as “interesting” in the Chinese curse sort of way. Just as the political parties seemed to be settling into a faux festive period “truce” from the campaign that had never begun we get a wave of news items that keep tongues wagging, the media reporting and above all the parties a-busying.

Top of the list of interesting news items – beyond the extensions of Dalligate and the mafia style executions – is reserved for the judiciary and in particular for two of the members of our judicial bench who are in the eye of the storm. Judge Farrugia Sacco is in the throes of a renewed battle for his seat having had a new attack from the IOC – determined to take steps against those of its members who exposed their institution to the risk of disrepute. Another Judge, Ray Pace, is now in prison awaiting trial with the serious accusation of bribery pending above his head.

It is an ugly period for the legal branch of our separated powers and the two stories have thrust another dagger into the already weak levels of faith that the judiciary enjoyed with the general population. Trust and faith in the law is fundamental within a democracy and this kind of weakness seriously endangers the workings of our constitutional mechanisms. That is also the basic reason why the constitutional checks and balances that should come into play must work with clockwork perfection in order to ensure that the very foundations of the legal system are still intact. Public trust is the one and only priority.

Farrugia Sacco

Which brings me to the role of our political parties. We first had the Farrugia Sacco debate. In this respect the “Ceasar’s Wife” argument that I had touched upon in the Dalligate saga comes back with full force when considering how to proceed with a member of the bench who has become embroiled in such an issue. The key concept in the “Ceasar’s wife” principle is the idea of “having to be above suspicion”. This is not a question of actually being guilty but of having to appear beyond the mere suspicion. In this light, and without even making any further considerations on what actually went down in that hotel room where the Olympic tickets were held, Judge Farrugia Sacco should have long tendered his resignation in order to deal with the ghosts and suspicions peacefully and individually without carrying this baggage around in his role as a judge.

Is it so straightforward? Yes. Did we need the Ombudsman writing to the President? Not really. Even before the Commission for the Administration of Justice was involved Judge Farrugia Sacco should have done the right thing of his own accord. By refusing to do so he should have forced the hand of our politicians in parliament who are the guardians of an important constitutional mechanism with which they have been entrusted: the process of impeachment. Which is where my first beef with Joseph Muscat arises. His position on the Farrugia Sacco issue is that we must wait for the Commission for the Administration of Justice to do its work before actually impeaching the judge. Like hell we do.

Joseph Muscat’s attempt to distinguish between politics and the judiciary is an amateur approach to our constitutional politics and a dangerous situation whereby the leader of the opposition is openly reneging on his DUTY towards citizens to act as ultimate guardian of our constitutional rights. A judge in Farrugia Sacco’s situation loses his legitimacy to sit in open judgement of others in no matter what area of law. If he cannot see that of his own accord then it is up to the politicians to act as guardians of our prerogatives as citizens. Once again Muscat is doing what he does best – acting as Pilate and washing his hands of a decision that he is duty bound constitutionally to guarantee. Weak.

Pace

The Ray Pace matter seems to have brought Muscat to his senses. Suddenly the judiciary is no longer a matter for the Commission for the Administration of Justice. Admittedly the case seems to be more open and shut given the context though there is no reason to distinguish between the two when it comes to the Ceasar’s Wife test. In this case the issue of whether Ray Pace is above suspicion is more glaringly obvious – the arraignment and arrest make a decision in this respect all the more straightforward.

What did impress me was the attempts – as of early morning – by Evarist Bartolo to turn the issue into a political battlefield. He posted a link to a report of the arrest on facebook with the words “Ara f’hiex gabuh pajjiz” (Look what they have brought the country to). Incredible. To begin with it is obvious to any free thinking individual that when appointing a judge you can never foresee his turning to the dark side (to use Star Wars terms). How Ray Pace’s alleged actions are imputable to the current government and its policies beggars belief. Sure enough Evarist deleted any comments I made on the particular status – no worries I have snapshots on my iPad (once bitten, twice shy – right Jeffrey Pullicino Orlando?).

Thankfully the Labour party could not do otherwise than agree to an eventual impeachment of Ray Pace. Muscat did add that a new Labour government would review the methods of appointment of judges. No harm there right? Definitely not. Given that a rebel MP recently made it part of his personal agenda to point out inconsistencies in the field of the judiciary it should not come as too much of a surprise to any of us that sooner or later Labour would jump on that particular part of the wagon. A knee-jerk reaction it remains though and I very much suspect that we are in for a bit of patchwork and tweaks that would still accomodate the PLPN manner of appointments.

And here is another crux. I posted a status on facebook pointing out that given their record Labour would best reform the system by staying out of the appointments system. Of course the world is full of literal minded partisans who would be eager to point out that the same system that gave us Farrugia Sacco (Labour) and Pace (Labour) also gave us Arrigo (Nationalist). Which makes it allright then does it not? My point was meant to be sarcastic – Muscat’s party does not have much of a record to go on when it comes to appointments and the fact that the nationalist party too has had its fair share of nutty appointments is neither here nor there.

Judiciary

Do you remember how recently a government proposal to increase salaries for the judiciary was shot down by a labour party? The Labourites had had a sudden attack of “consistency” by arguing that if the MPs (political) could not get a raise (will we ever forget the 500€ raise?) then neither could the judges and magistrates (judiciary). Because obviously the Muscat idea that politics and judiciary should not be mixed did not apply at the time.

There seems to be a general consensus, even within the practitioners in the field, that our judicial system is due a major overhaul. The criteria for judges and magistrates appointment remain the number of years in practice. When a non-court practitioner was once proposed for the bench, court practitioners were up in arms claiming that his years of practice did not count – an odd reason if there was one. From what I can gather the conventional way to become a magistrate/judge until now has been to manifest your intention in the right circles and hopefully… if you were insistent enough and of the right hue… you would get your turn eventually.

The system has produced many a good magistrate or judge but it has flaws. It is haphazard and based on the wrong criteria. I am also told that in some cases what was needed to get onto the bench was a track record of an attempt at running of parliament. Once you got your brownie points in that field then you would have proven loyalty and a position on the bench would follow. Again. It is not the rule and is not across the board. The problem lies in the lack of clarity and in the lack of modern, clear criteria as to why a person should make it to the bench.

In other nations, like Germany, you actually study to get to the bench – not to become a lawyer first. Interpreting and applying the law requires a different set of skills than pleading before the court. Academic knowledge, logical and linguistic skills as well as good analytical methodology and organisation form part of what could be a key set of indicators in the future. A place on the bench should not be a prize for time served – let alone loyalty.

The kind of reform that is required is the real area where politics and the judiciary should definitely not merge. The legal world in Malta is not in a nice state. The kind of reform that is required is a big learning curve across the board from the courts, to the faculty of law and its product, to the support services to the long arm of the law that are the police. Education is a key factor – education to start with and education in the continuing sense.

Unfortunately I have to end this long post with the usual pinpointing of the heart of the problem. Our legal system has also been affected by the rot that is the PLPN method. Appointments and laws through the years are made with the parties and their survival in mind. It is incredible that in this day and age we can think in terms of “their” or “our” judge. It is mind boggling that judicial appointments have to be thought of in this manner and the legal community has much to feel at fault about in this respect. I am not unaware of the irony that our parliament has a heavy representation of lawyers within it and that this being the case it will be even more difficult to find people prepared to think out of the box.

When Muscat wakes up to the reality of the matter and stops thinking in populist terms, when Gonzi’s PN quit the faffing around and decide to grasp the bull by the horns I should hope that a huge debate will ensue and that within an appropriate forum, with the appropriate experts, the much needed reform of our Judicial & Legal systems is embarked upon with earnest.

Remember. We are all servants of the law, that we may be free.